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Cases On Human Rights

SUNILA ABEYSEKERA

v.

ARIYA RUBESINGHE
ANURUDHA RATWATTE
MANGALA SAMARAWEERA
THE HON. ATTORNEY-GENERAL

SUPREME COURT OF SRI LANKA

S.C Application No. 994/99
Amerasinghe, J. (Delivered the Judgment)
Wadugodapitiya, J.
Weerasekera, J.
Monday, May 15, 2000

FUNDAMENTAL RIGHTS: Freedom of Speech, Expression and the Press – The Emergency (Prohibition on Publication and Transmission of Sensitive Military Information) Regulation restricting the publication or transmission of specified information relating to military or police operations – Constitutionality of – Under what circumstances may the freedom of speech, expression and of the press be legitimately limited

FUNDAMENTAL RIGHTS – Derogation from – Principles for determining lawfulness of derogation – Conditions which derogatory legislation must satisfy

Facts:
On the 6th November, 1999, the President of Sri Lanka, acting under powers conferred on him by Section 5 of the Public Security Ordinance, issued a regulation forbidding editors or publishers of newspapers or any one authorized by them from publishing, printing or causing to be published or printed, distributed or transmitted any material containing any matter pertaining to military operations in the Northern and Eastern Province of Sri Lanka, including amongst others, any operations carried out, being carried out or proposed to be carried out by the Armed Forces or the Police (including Special Task Force), the procurement or proposed procurement of arms or supplies by any such forces and the deployment of troops or military equipment. The regulation made it an offence to publish, transmit, or cause to be published or transmitted any forbidden information. The regulation was issued during the presidential election campaigns in 1999.

The Petitioner is a social and human rights activist, the President of the Movement of Interracial Justice and Equality (MIRJE) and a member of the Executive Committee of the Movement for Free and Fair Elections (MFFE). She is also a registered voter. She complained that the regulation deprived citizens, including herself, from seeking, receiving and imparting information on the ethnic conflict and war in Northern and Eastern Province between the Armed Forces and LTTE, in which she alleged the Armed Forces had suffered heavy losses. She argued that “her opinion on all activities relating to the ethnic conflict in the country in general and in relation to the [1999 Presidential] election is based on information received by her on the said war” and that the restraint placed on information relating to the war violates her constitutional rights to freedom of thought and conscience amongst others. She was also “constrained from forming and communicating on matters of public debate and which are of vital concern to the nation…”. Contending that the aim of the publication was to prevent the publication of information relating to the war which could be embarrassing to the government, the petitioner submitted that the restrictions infracted her rights to free speech and expression, and of publication.

CONSTITUTIONAL LAW: Fundamental Rights – Constitutional Provision authorizing derogation from Fundamental Rights - Whether and to what extent the Executive President acting pursuant to such constitutional provisions may by regulation restrict Fundamental Rights and Freedoms - Need for restriction to be proportional and rationally related to the purpose it is imposed

Issue(s) for Determination:
Whether the Emergency Regulations made by the President in the interest of national security and social needs, restricting certain basic freedoms of speech and expression guaranteed by the Constitution violated the fundamental rights of the Petitioner.

Held: (Unanimously dismissing the Petition)
The courts generally have the power to strike down over-broad administrative censorship on communication. Restrictions on freedom of speech and expression must be predicated on a legitimate aim and proportional to the purpose for which the restriction is made. However, the restrictions imposed by the Public Security Ordinance Order were not disproportionate to the legitimate aim of the regulation, which is the furtherance of the interests of national security within the meaning of Article 15(7) of the Constitution. The restrictions corresponded to the pressing national security and social needs which when juxtaposed with the complaint far outweigh the petitioner's fundamental right guaranteed by Article 14 (1)(a) of the Constitution of Sri Lanka.

Details of Principles in the Judgment
1. Importance of Freedom of Speech in a Representative Democracy
Freedom of speech is vitally important in the discovery of truth in the market place of ideas so that the wishes of the people safely can be carried out, in serving the need of every man and woman to achieve personal fulfillment; and in meeting the demands of a democratic regime. It is one of the essential foundations of a democratic society, in addition to being one of the basic conditions for its progress, and for individual self-fulfillment and development. In sum, freedom of speech is the cornerstone on which democratic society rests.[page 328 para E, page 333 para E, page 333 para H]

2. Freedom of Speech Protects Citizen's Franchise and Guides its Use
Speech concerning public affairs is more than self-expression; it is the essence of self – government. To make an informed and educated decision in choosing his or her elected representative, in deciding to vote for one group of persons rather than another, a voter must necessarily have the opportunity of being informed with regard to the proposed policies. The election of representatives is based on an appeal to reason and not to emotions; a system of government based on representative democracy assumes it to be so. There can be no appeal to reason without the freedom to express and propagate and disseminate ideas, based on adequate and reliable information.[page 333 paras E-G]

3. Social Significance of Freedom of Expression
In its social dimensions, freedom of expression is a means for the interchange of ideas and information among human beings and for mass communication. It includes the right of each person to seek and communicate his or her own views to others, as well as the right to receive opinions and information from others. Freedom of speech necessarily protects the right to receive information, regardless of the social worth of such information. The right is fundamental to a free society. [page 333 paras H-I]

4. Freedom of Speech as an Individual and Collective Right
Freedom of Speech requires on one hand, that no one is arbitrarily limited or impeded in expressing his or her own thoughts. In that sense, it is a right that belongs to each individual. Its second aspect, on the other hand, in general, implies a collective right to receive information and have access to the thoughts expressed by others. The right to receive information is an important aspect of free speech and expression. [page 334 paras B-C]

On the Record: Per Amerasinghe, J.
“Freedom of speech and expression protects not only information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb the state or any sector of the population.” [page 336 para E]

5. Freedom of Speech and Expression Protects not only Content of Information but the Mode of its Expression
The principles relating to freedom of speech and expression do not apply solely to certain types of information or ideas or forms of expression. Freedom of speech protects not only the substance of the ideas and information expressed but also the form they are conveyed. Freedom of speech and expression includes all forms of freedom and expression, including the right to use audio-visual media, and indeed whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible, and it includes artistic expression. It also encompasses information of a commercial nature and even music, and commercials transmitted by cable. [page 334 paras D-G]

On the record: Per Amerasinghe, J.
“In Amaratunga v. Sirimal and Others, ... disapproval of the policies and actions of government on a range of issues was expressed by a fifteen minute, noisy cacophony of public protests – Jana Ghosha - which included the banging of saucepans and the beating of drums. It was held … citing several opinions of the U.S. Supreme Court, that “speech and expression” extended to forms of symbolic speech and expression and that Jana Ghosha could be regarded as speech and expression. In Abeyratne v. Gunatilake and Others, … it was held that the guarantee of freedom of speech and expression and freedom of peaceful assembly “could be rendered meaningless if permission for the use of amplifying mechanical devices in furtherance of free speech is unreasonably withheld.” [page 334 paras H-I, page 335 paras A-B]

6. Freedom of Speech and Expression Pivotal to Fostering Participatory Governance and Holding Elected Representatives Accountable
It is only by informed discussion that the political, social and economic measures desired by voters can be brought about. Furthermore, and in between elections, it is only through free and informed debate and exchange of ideas that the elected majority can remain responsive to and reflect the will of the people. The fact that people have elected representatives does not imply that such representatives may always do as they will; members of the public must, in matters affecting them, be free to influence intelligently the decisions of those persons for the time being empowered to act for them. [page 335 paras C-E]

On the Record: Per Amerasinghe, J.
“Every legitimate interest of the people or a section of them should have the opportunity of being made known and felt in the political process. Moreover, in a representative democracy there must be a continuing public interest in the workings of government which should be open to scrutiny and well-founded constructive criticism. Indeed, a central value of free speech, and the concomitant rights of freedom of association and assembly, lies in checking the abuse of power by those in authority.” [page 335 paras E-F]

7. Freedom of Speech and the Press Acts as a Check on Government in a Democratic Society
The free press has a legitimate interest in reporting on and drawing the public's attention to deficiencies in the operation of Government services, including possible illegal activities. It is incumbent on the press to impart information and ideas about such matters and the public has a right to receive them.[page 335 paras G-H]

On the Record: Per Amerasinghe, J.
Journalism, it has been held, “is the primary and principal manifestation of freedom of expression of thought.” With regard to the press, it has been stated that it has a pre-eminent role in a State governed by the rule of law and, whilst it must not overstep the bounds set, it is nevertheless incumbent on the press, in a way consistent with its duties and responsibilities, to disseminate information and ideas and stimulate debate on political issues and on other matters of public interest. … Freedom of press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in political debate which is at the very core of the concept of a democratic society.” [page 335 paras H-I, page 336 paras A-D]

On the Record: Per Amerasinghe, J.
“… in a democracy, freedom of speech performs a vital role in keeping in check persons holding public office.” [page 340 para E]

8. Freedom of Speech does not Confer Absolute Right to Irresponsible or Unregulated Talkativeness
There are occasions where the important right of speech must give way to other considerations. National security is one of such considerations. Indeed the enjoyment of freedom of speech entails the observance of duties and obligations that take cognizance of the rights and freedoms of others, and laws have evolved to safeguard those rights against the unreasonable use of freedom of speech. Social interest in order and morality, and the integrity of democratic institutions like the judiciary, also place further emphasis on the need for the regulated use of speech. The right to speak must always be tailored to the occasion.[page 339 paras B-C, page 340 para H]

9. Prior Restraint of Freedom of Speech or Press may be Justifiable
Even where the governing instrument, be it the Constitution or some international convention does not prohibit prior restraint on free speech or publication, the imposition of restraints by law is not impermissible. If prior restraint were not possible, irreparable harm could be caused in certain circumstances. However, the dangers inherent in prior restraints are such that call for the most careful scrutiny on the part of a court that is called upon to consider the validity of such restraints. [page 341 para B-D]

10. Restriction of a Fundamental Right Must be Predicated on a Legitimate Purpose
To be valid, restrictions on the constitutional right of freedom of speech, besides the requirement that they must be prescribed by law, must also have a legitimate aim recognized by the Constitution. A restriction, even if justified by compelling governmental interests, such as the interests of national security, must be so framed as not to limit the free speech and expression more than is necessary. That is, the restriction must be proportionate and closely tailored to the accomplishment of the legitimate governmental objective necessitating it. [page 354 para C]

On the Record: Per Amerasinghe, J.
“Necessity” and, hence, the legality of restrictions imposed under Article 15(7) on freedom of expression, depend upon a showing that the restrictions are required by a compelling governmental interest. If there are various options to achieve this objective, that which least restricts the rights protected must be selected. Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental liberties of citizens when that end can be narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose. Shelton v. Tucker (106) (U.S.) at p. 488 (S.Ct.) at 252. Given this standard, it is not enough to demonstrate, for example, that a regulation performs a useful or desirable purpose; to be compatible with the constitution, the restrictions must be justified by reference to governmental objectives which, because of their importance, clearly outweigh the social need for the full enjoyment of the right.[page 364 paras G-I, page 365 para A]]

11. Duty of Court in Relation to Overbearing Censorship of Communications
Where laws or regulations, vest in administrative officials a power of censorship over communications not confined within standards designed to curb the dangers of arbitrary or discriminatory action, such laws, being unnecessary to achieve even a legitimate aim may be struck down as being over-broad.[page 369 paras B-C]

Cases referred to in the Judgment:
1. Abeyratne v. Gunatilake and Others, (1994) 2 Sri L. R. 294
2 Abrams v. United States, 250 U. S. 616; 40 S. Ct. 17; 63 L. Ed. 1173,(1919).
3. Adams and Benn v. United Kingdom, (1997) 23 E. H. R. R. C. D. 160
4. Amaratunga v. Sirimal and Others (1993) 1 Sri L. R. 264.
5. App. No. 10628/83 v. Switzerland, (1987) 9 E. H. R. R. 107.
6. App. No. 11508 v. Denmark, (1989) 11 E. H. R. R. 543
7. App. No. 12230/86 v. Germany, (1989) 11 E. H. R. R. 101.
8. Arrowsmith v. United Kingdom, (1982) 3 E. H. R. R. 218.
9. Autronic AG v. Switzerland, (1990) 12 E. H. R. R. 485
10. Barfod v. Denmark, (1991) 13 E. H. R. R. 493.
11. Barthold v. Germany, (1985) 7 E. H. R. R. 383
12. Bernard Soysa and Two Others v. The A. G. and Two Others, (1991) 2 Sri L. R. 56.
13. Bombay v. R. M. D. Chamarabagawalla, (157) S. C. R. 874
14. Bowman v. U. K., (1996) 22 E. H. R. R. C. D. 13.
15. Brandenberg v. Ohio, 395 U. S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d.430, (1969).
16. Brind and Others v. United Kingdom, (1994) 18 E. H. R. R. C. D. 76.
17. Cantwell v. Connecticut, 310 U. S. 296; S. Ct. 900; 84 L. Ed. 1213, (1940).
18. Casado Coca v. Spain, (1994) 18 E. H. R. R. 1.
19. Castells v. Spain, (1992) 14 E. H. R. R. 445.
20. Channa Pieris and Others v. The Attorney General and Others, (1994) 1 Sri L. R. 1.
21. Chaplinsky v. NewHampshire, 315, U.S. 568, (1942).
22. Debs v. United States, 249 U. S. 211, (1919).
23. Dejonge v. Oregon, 299 U. S. 353, 57 S. Ct. 255, 81 L. Ed. 278 (1937).
24. Dennis v. United States, 341 U. S. 495; 71 S. Ct. 857; 95 L. Ed. 1157 (1951).
25. Deshapriya and Another v. Municipal Council, Nuwara Eliya and Others, (1995) 1 Sri L. R. 362.
26. Dissanayaka v. Sri Jayewardenapura University, (1986) 2 Sri L. R.254.
27. Ekanayake v. HerathBanda, S. C. App. 25/91 (F. R.), S. C. Minutes of 11.10.91.
28. Express Newspapers (Private) Ltd. v. Union, (1959) S. C. R. 12.
29. Fernando v. The S. L. B. C. and Others (1996) 1 Sri L. R. 157.
30. Frohwerk v. United States, 249 U. S. 204 (1919).
31. Gay News v. United Kingdom, (1983) 5 E. H. R. R. 123.
32. Gaskin v. United Kingdom, (1987) 9 E. H. R. R. 279.
33. Gaskin v. United Kingdom, (1989) 11 E. H. R. R. 402.
34. Gitlow v. New York, 268 U. S. 652; 45 S. Ct. 625; 69 L. Ed. 1138,(1925).
35. Goodwin v. United Kingdom, (1996) 22 E. H. R. R. 123.
36. Griswold v. Connecticut, 381 U. S. 479; 85 S. Ct. 1678; 14 L. Ed.2d 510 (1965).
37. Groppera Radio AG v. Switzerland, (1990) 12 E. H. R. R. 321.
38. Gunawardena and Another v. Pathirana, O. 1. C., Police Station, Elpitiya and Others, (1997) 1 Sri L. R. 265.
39. G. v. Germany, (1984) 6 E. H. R. R. 467.
40. Handyside v. The United Kingdom, (1976) 1 E. H. R. R. 737.
41. Hess v. Indiana, 414 U. S. 105; 94 S. Ct. 326; L. Ed. 303, (1973)
42. Hins and Hugenholtz v. Netherlands, (1996) 21 E. H. R. R. C. D. 124.
43. Hodgson, Woolf Productions and National Union of Journalists and Channel Four Television v. United Kindgom, (1988) 10 E. H. R. R. 503.
44. Information sverein Lentia v. Austria, (1994) 17 E. H. R. R. 93.
45. Jerslid v. Denmark, (1995) 19 E. H. R. R. 1.
46. Joseph Perera alias Bruten Perera v. The Attorney General and Others, (1992) 1 Sri L. R. 199.
47. Karunathilaka and Another v. Dayananda Dissanayake, Commissioner of Elections and Others,(1994) 1 Sri L. R. 157.
48. Klass and Others v. Federal Republic of Germany, (1979 80) 2 E. H. R. R. 214.
49. Kingsley International Pictures Corporation v. Regents of the University of New York, 360 U. S. 684; 79 S. Ct. 1362; 3 L. Ed. 2d
50. Kunz v. New York, 340 U. S. 290; 71 S. Ct. 312; 95 L. Ed. 280, (1951).
51. Lamont v. Postmaster General, 381 U. S. 301; 85 S. Ct. 1493; 14 L. Ed. 2d. 398 (1965).
52. Leander v. Sweden, (1987) 9 E. H. R. R. 433.
53. Lingens v. Austria, (1986) 8 E. H. R. R. 407.
54. Lingens and Leitgens v. Austria, (1982) 4 E. H. R. R. 373.
55. Lovell v. Griffin. 303 U. S. 444; 58 S. Ct. 666; 82 L. Ed. 949, (1938).
56. Mahinda Rajapakse v. Kudahetti and Others, (1992) 2 Sri L. R. 223
57. Malalgoda v. A. G. and Another, (1982) 2 Sri L. R. 777.
58. Mallawaarachchi v. Seneviratne, S. C. Application 212/88, S. C.Minutes of 28.09.1989.
59. Marian and Another v. Upasena, (1998) 3 Sri L. R. 177.
60. Markt Intern and Beerman v. Germany, (1989) 11 E. H. R. R. 212.
61. Markt Intern Verlag and Beeman v. Germany, (1990) 12 E. H. R. R.161.
62. Martin v. City of Struthers, 319 U. S. 141; 63 S. Ct. 862; 87 L. Ed.1313 (1943).
63. McCray v. United States, 195 U. S. 27, 56; 24 S. Ct. 769, 776; 49 L. Ed. 78, (1904).
64. McLaughlin v. United Kingdom, (1994) 18 E. H. R. R. 84.
65 Mohottige and Others v. Gunatillake and Others, (1992) 2 Sri L. R.246.
66. Muller v. Switzerland, (1991) 13 E. H. R. R. 212.
67. Near v. Minnesota, 283 U. S. 697; 51 S. Ct. 625; 75 L. Ed. 1357,(1931).
68. New York Times Co. v. U. S., and United States v. The Washington Post Company et al., 403 U. S. 713; 91 S. Ct. 2140, (1971).
69. Oberschlick v. Austria, (1995) 19 E. H. R. R. 389.
70. Open Door Counselling and Dublin Well Woman v. Ireland, (1993) 15 E. H. R. R. 244
71. Otto Preminger Institute v. Austria, (1995) 19 E. H. R. R. 34.
72. Palko v. Connecticut, 302 U. S. 319, 327; 658 S. Ct. 149, 152; 82L.Ed.288 (1937).
73. Pierce v. Society of Sisters, 268 U. S. 510; 45 S. Ct. 571; 69 L. Ed.1070 (1925).
74. Piermont v. France, (1995) 20 E. H. R. R. 301.
75. Prager and Obserschlik v. Austria, (1996) 21 E. H. R. R. 1.
76. Ratnasara Thero v. Udugampola, (1983) 1 Sri L. R. 461.
77. Re Compulsory membership of journalists association, (1986) 8 E.H.R. R. 165.
78. Red Lion Broadcasting Co. v. F. C. C., 395 U. S. 376, 89 S. Ct. 1794;23 L. Ed. 2d. 371, (1961).
79. Rohr v. Switzerland, (1989) 11 E. H. R. R. 81.
80. Saranapala v. Solanga Arachchi, Senior Superintendent of Police, and Others, (1999) 2 Sri L. R. 166
81. Sata v. New York 334.U. S. 558; 68 S. Ct 1148; 92 L. Ed. 1574, (1948).
82. Schenck v. United States, 249 U. S. 47; S. Ct. 247; 63 L. Ed. 470,(1919)
83. Shantha Wijeratne v. Vijitha Perera and Others, S. C. Application 379/93, S. C. Minutes of 03.02.94.
84. Shelton v. Tucker 364 U. S. 479, 81 S. Ct. 247, (1960).
85. Siriwardene and Others v. Liyanage, (1983) 2 Sri L. R. 164.
86. Stanley v. State of Georgia, 394 U. S. 557; 89 S. Ct. 1243; 22 L. Ed. 2d 542 (1969).
87. State of Arizona v. State of California, 283 U. S. 423; 455; 51 S. Ct.522; 75 L. Ed., 1154, (1931).
88. Sumith Jayantha Dias v. Reggie Ranatunge, Deputy Minister of Transport and Others, (1999) 2 Sri L.R.8.
89. The Observer and the Guardian v. United Kindgom, (1992) 14 E. H.R. R. 153.
90. The Sunday Times v. The United Kindgom, (1979) 2 E. H. R. R. 245.
91. The Sunday Times v. United Kingdom (No. 2), (1992) 14 E. H. R. R.
92. Thorgeirson v. Iceland, (1992) 14 E. H. R. R. 843.
93. Times Newspapers Ltd. and Neil v. United Kingdom, (1993) 15 E H.R. R. C. D. 49.
94. Tolstoy Miloslavsky v. United Kingdom, (1995) 20 E. H. R. R. 442
95. Travancore Cochin v. Bombay Co. Ltd., (152) S. C. R. 1112.
96. United States v. Carolene Products Co., 304 U. S. 144, 58 S. Ct. 778; 82 L. Ed. 1234, (1938).
97. United States v. David Paul O'Brien, 391 U. S. 367; 88 S. Ct. 1673,(1968).
98. Vereinigung Democratischer Soldaten Osterreichs and Gubi v. Austria, (1995) 20 E. H. R. R. 56.
99. Vereniging Radio 100 et al. v. Netherlands, (1996) 22 E. H. R. R. C.D. 198.
100. Vereninging Weekblad Bluf v. Netherlands, (1995) 20 E. H. R. R. 189.
101. Visuvalingam and Others v. Liyanage and Others (1983) 2 Sri L. R. 311.
102. Visuvalingam and Others v. Liyanage (1984) 2 Sri L. R. 123.
103. Walker v. City of Birmingham, 388 U. S. 307; 87 S. Ct. 1824; 18 L. Ed. 2d 1210, (1967).
104. Wallen v. Sweden (1986) 8 E. H. R. R. 320
105. Weber v. Switzerland (1990) 12 E. H. R. R. 508
106. West Virginia Board of Education v. Barnette, 319 U. S. 624; 633 S.Ct. 1178; 87 L. Ed. 1173, (1943).
107. Wickremabandu v. Herath and Others, (1990) 2 Sri L. R. 348.
108. Whitney v. California, 274 U. S. 357; 47 S. Ct. 641, 71 L. Ed. 1095
109. Wickremasinghe v. Edmund Jayasinghe, (1995) 1 Sri L. R. 300.
110. Wingrove v. United Kingdom, (1997) 24 E. H. R. R. 1.
111. Winters v. New York, 333 U. S. 507; 68 S. Ct. 665; 92 L. Ed. 840(1948).
112. Worm v. Austria, (1996) 22 E. H. R. R. C. D. 7.
113. Yasapala v. Wickramasinghe, (1980) 1 F. R. D. 143.

Statutes Referred to in the Judgment:
1. The Constitution of Sri Lanka, Articles 12(1), 14(1)(a), 15(2)& (7), 27, 28(c),(e), 155
2. Public Security Ordinance, Section 5, Cap 5 Legislative Enactments
3. Emergency (Restriction on Publication and Transmission of Sensitive Military Information) Regulations No. 1 of 1995

Foreign Statutes Referred to in the Judgment:
1. Constitution of the Republic of India, Article 19, 22(3)
2. Constitution of the United States of America, First Amendment

Other Resources Referred to in the Judgment:
1. Jeremy McBride – Widening Case Law Horizons, Vol 1 No. 4 Interights Bulletin
2. Bangalore Principles declared by the Commonwealth Jurists on 26 February 1988, at the end of a colloquium on Domestic Application of Human Rights Norms; Interights Bulletin Vol 3, 1988, No. 1 p. 2.
3. Johannesburg Principles on National Security, Freedom of Expression, and Access to Information
4. Nowak, Rotunda and Young, Constitutional Law, 3rd Ed., pp. 853 874.
International Instruments Referred to in the Judgment:
• European Convention on Human Rights, Article 10

Representation:
• R. K. W. Goonesekera (with S. H. Hewamanne, J. C. Weliamuna and Kishali Pinto Jayawardena) for the petitioner.
• Saleem Marsoof P. C., A. S. G. (with U. Egalahewa, S. C.) for the respondent
Cur. adv. vult.


AMERASINGHE, J. (Delivering the judgment)

The Impugned Emergency Regulations and their Precusors
On 21 September 1995, the President of Sri Lanka (hereinafter referred to as the President) made the following regulations under section 5 of the Public Security Ordinance.

“ 1. These Regulations may be cited as the Emergency (Restriction on Publication and Transmission of Sensitive Military Information) Regulations, No. 1 of 1995.

2. The President may for the purpose of these regulations, appoint, by name or by office, any person or body of persons to be the Competent Authority.

3. No Editor or Publisher of a Newspaper or any person authorized by or under law, to establish and operate a Broadcasting Station or Television Station shall, whether in or outside Sri Lanka, print, publish or distribute or transmit, whether by means of electronic devices or otherwise, or cause to be printed, published, distributed or transmitted whether by electronic means or otherwise, any material containing any matter which pertains to any operations carried out, or proposed to be carried out, by the Armed Forces or the Police Force (including the Special Task Force), the procurement or proposed procurement of arms or supplies by any such Forces, the deployment of troops or personnel, or the deployment or use of equipment, including aircraft or naval vessels, by any such Forces.

4. Where any person prints, publishes , distributes or transmits, or causes to be printed, published, distributed or transmitted, whether by electronic means or otherwise, any matter in contravention of the provisions of regulation 3, the Competent Authority may, after issuing such directions, as he considers necessary to effect compliance with the provisions of such regulation, make order that the press or equipment used for such printing, publication, distribution or transmission shall, for such period as is specified in that order not be used for the purpose of printing, publication, distribution or transmission of any matter referred to in regulation 3 and the Competent Authority may by the same order authorise any person specified therein to take such steps as appears to the person so authorised to be necessary, for preventing the printing, publication, distribution or transmission of any such material.

5. Any person who prints, publishes, distributes or transmits, any material in contravention of the provisions of regulation 3, shall be guilty of an offence. ”

On October 02, 1995, (Gazette Extraordinary No. 891 /3) the President amended the regulations made on 21 September 1995 by adding, “any statement pertaining to the official conduct or the performance of the Head or any member of any of the Armed Forces or the Police Force”, to the list of restricted subjects.

On December 20, 1995, the President, acting under section 5 of the Public Security Ordinance, rescinded the Emergency (Restriction on Publication and Transmission of Sensitive Military Information) Regulation No. 1 of 1995, as amended by the regulation of October 2, 1995.

On 19 April 1996, the President made the following regulations under section 5 of the Public Security Ordinance.

“1. These Regulations may be cited as the Emergency (Prohibition on Publication and Transmission of Sensitive Military Information) Regulations No. 1 of 1996.

2. No Editor or Publisher of a Newspaper or any person authorised by or under law to establish and operate a Broadcasting Station or a Television Station shall, whether in or outside Sri Lanka, print, publish, distribute or transmit, whether by means of electronic devices or otherwise, or cause to be printed, published, distributed or transmitted whether by electronic means or otherwise, any material containing any matter which pertains to any operations carried out or proposed to be carried out, by the Armed Forces or the Police Force (including the Special Task Force), the procurement or proposed procurement of arms or supplies by any such Forces, the deployment of troops or personnel, or the deployment or use of equipment, including aircraft or naval vessels, by any such Forces, or any statement pertaining to the official conduct or the performance of the Head or any member of any of the Armed Forces or the Police Force.

3. Where any person prints, publishes, distributes or transmits, or causes to be printed, published, distributed or transmitted, whether by electronic means or otherwise, any matter in contravention of the provisions of regulation 2, the Competent Authority may, after issuing such directions as he considers necessary to effect compliance with the provisions of such regulation, make order that the press or equipment used for such printing, publication, distribution or transmission shall for such period as is specified in that order not be used for the purpose of printing, publication, distribution or transmission of any matter referred to in regulation 2 and the Competent Authority may by the same order authorize any person specified therein to take such steps as appears to the person so authorized to be necessary, for preventing the printing, publication, distribution or transmission of any such material.

4. The President may for the purpose of these regulations, appoint, by name or by office, any person or body of persons to be the Competent Authority.

5. Any person who prints, publishes, distributes or transmits, any material in contravention of regulation 2 shall be guilty of an offence.”

On 8 October 1996, the Emergency (Prohibition on Publication and Transmission of Sensitive Military Information) Regulations No. 1 of 1996 were rescinded by a regulation made by the President under section 5 of the Public Security Ordinance.

On 5 June 1998, the President made the following regulations under section 5 of the Public Security Ordinance:
“1. These Regulations may be cited as the Emergency (Prohibition on Publication and Transmission of Sensitive Military Information) Regulations No. 1 of 1998.

2. No Editor or Publisher of a Newspaper or any person authorized by or under law, to establish and operate a Broadcasting Station or a Television Station shall whether in or outside Sri Lanka, print, publish, distribute or transmit whether by means of electronic devices or otherwise, or cause to be printed, published, distributed or transmitted whether by electronic means or otherwise, any material containing any matter which pertains to any operations carried out or proposed to be carried out, by the Armed Forces or the Police Force (including the Special Task Force), the deployment of troops or personnel, or the deployment or use of equipment, including aircraft or naval vessels, by any such forces, or any statement pertaining to the official conduct or the performance of the Head or any member of the Armed Forces or the Police Force.

3. Where any person prints, publishes, distributes or transmits, or causes to be printed, published, distributed or transmitted, whether by electronic means or otherwise, any matter in contravention of the provisions of Regulation 2, the Competent Authority may, after issuing such directions as he considers necessary to effect compliance with the provisions of such regulation, make order that the press or equipment used for such printing, publication distribution or transmission shall for such period as is specified in that order not be used for such printing, publication, distribution or transmission of any matter referred to in Regulation 2 and the Competent Authority may by the same order authorize any person specified therein to take such steps as appears to the person so authorized to be necessary for preventing the printing, publication, distribution or transmission of any such material.
4. The President may for the purpose of these regulations, appoint by name or office, any person or body of persons to be the Competent Authority.

5. Any person who prints, publishes, distributes or transmits any material in contravention of the provisions of Regulation 2 shall be guilty of an offence.”

On 6 November 1999, the President made the following regulations, hereinafter reffered to as the ‘impugned regulations', under section 5 of the public security Ordinance;
“1. The Emergency (Prohibition on Publication and Transmission of Sensitive Military Information) Regulation 01 of 1998 published in Gazette Extraordinary No. 1030/28 of 05th June, 1998 and deemed to be in force by virtue of Section 2A of the Public Security Ordinance, is hereby amended by the substitution for Regulation 2 thereof, of the following new Regulation:

2. No Editor or Publisher of a newspaper or any person authorized by or under law to establish and operate a Broadcasting Station or a Television Station shall, except with the permission of the Competent Authority, print, publish, distribute or transmit whether by means of electronic devices or otherwise cause to be printed, published, distributed or transmitted any material (inclusive of documents, pictorial representations, photographs or cinematograph films) containing any matter pertaining to military operations in the Northern and Eastern Province (sic.) including any operation carried out or being carried out or proposed to be carried out by the Armed Forces or by the Police Force (including the Special Task Force), the deployment of troops or personnel or the deployment or use of equipment including aircraft or Naval vessel by any such forces or any statement pertaining to the official conduct, moral[e], the performance of the Head or any member of the Armed Forces or the Police Force or of any person authorized by the Commander in Chief of the Armed Forces for the purpose of rendering assistance in the preservation of national security.”

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