047-SLLR-SLLR-1982-2-MALALGODA-v.-ATTORNEY-GENERAL-AND-ANOTHER.pdf
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Wijewickrema v. Attorney-C n’nvrat (Siiiirvatiamla. J.i
m
MALALGODA
v
ATTORNEY-GENERAL AND ANOTHER
SUPREME COURT
SHARVANANDA, J.. COLIN-THOME. J.. AND SOZA, JS.C. APPLICATION NO. 95/82NOVEMBER 10 AND 12. 1982.
Fundamental Rights – Constitution, Articles 14 and 15(2) – Freedom of speech -Freedom ofpublication – Restriction on freedom ofpublication of defamatory material.
Fhe applicant, a writer and poet of- 41) years standing and author of severalhooks caused to be published on 17.9.1982 an anthology of poems under thetitle Nuthana Devadathtba. This anthology was full of diatribes defamatory ofnot only the President and the Prime Minister but also of members of the public.
On or about 24th September 1982 the Police seized all the publications:
The applicant contended that as a result of this seizure his fundamental right offreedom of speech was violated though it was guaranteed in the- Constitution.
Held –
Th'e fundamental right to freedom of speech is subject to such restrictionsas the law may impose under the heads mentioned in Article 15(2) of the Constitution.
Freedom of publication means that the applicant may publish whatever will1-not expose him to a prosecution or a civil action for defamation. The freedomof publication does not include the licence to defame and vilify others.
Cases referred to:
(1) Cohen v. California 29 U S. Supreme Court Decisions Lawyer's Ed. – Annotated2nd Ed. 248
(2) Schenck v. United Slates (1919) 249 U S. 47. 52
778
Sri Lanka Law Reports
(19X2) 2 S L R
’ Terminiello v. Chicago (1949) 337 U.S. 1, 36, 37
Bowman v. Secular Society Ltd.. (1917) A.C. 406. 466, 467
Babulal Parate v. Maharashtra-1 (1961) A.l.R. SC H84
Jang Bahadur v. Principal, Mohindra College (1951) A.l.R. Pep 59
(l)Akistan Apena of.lporo..y. Akinypande Thomas (1950) A.C. 227. 234
(8) Smith v. London Transport Executive .(1951) A.C. 555•*
APPLICATION alleging infringement of fundamental rights. .
V.S.A. Pullenayagam with Desmond Fernando and Miss. D. Wijesundera, forapplicant.
Sunil de Silva, Add!. S.G. with Suri Ratnapala S.S.C. for respondents.
( ur.adv.vutt.
December 2. 198^
SOZA, J.
The applicant in this case invokes the jurisdiction vested in thisCourt by Article 126 of the Constitution to hear and determine aquestion relating to the alleged infringement by the Police of hisfundamental right of freedom of speech and expression includingpublication guaranteed tohim by Article 14(l)(’a/)oftheConstitution.
The applicant claims he is a writer and poet of over 40 years’standing and the author of several works of literature. He has beenthe Secretary of the All Ceylon Sinhala Poets Union for the last• twenty-five.,years. On 17th September 1982 he caused to be publishedan anthology'of-his poems under the title “Nuthana Devadaththa”a copy of which .marked A he has annexed to his application. He -has named the Attorney-General as the first, .respondent and theInspector General of Police £sthe2nd respondent jo his, application.A perusal of the book A shows that the text has been printed atthe Piliyandala Kaviya Printing Press and the cover at the Veyangoda,.Press. The book''carries a foreword written by one Srilal KodikaraGunapala Senasinghe and is dedicated to Rev. Henpitagedera Gna-naseeha. For the purpose of sale the applicant distributed six hundredcopies of this anthology to Messrs. Godage Brothers, of MaradanaRoad, Colombo H and four hundred copies-to McCallum BookDepot. On or about 24th September 1982 police officers of theCriminal Investigation Department had seized the only two rernaiiitnp
SCMalalfcutlu V. Attorney-General ISoza, J.l779
copres from the Veyangoda Press. On the next day the applicantwas interrogated at the fifth floor of Police Headquarters and. alengthy statement by him was recorded. In the meantime the Policeled by Inspector Mohan Jayasuriya seized and removed the copiesthat were with the booksellers and even the copy presented to thewriter of the foreword. The applicant requested the return of thebooks but Inspector Mohan Jayasuriya refused. The applicant thenrequested the Inspector-General of Police the 2nd respondent toreturn the books but he too neither returned..the books nffr gaveany reason for failing to return them. The applicant, further statesthat the 2nd respondent has acted in this manner with the intentionrof interfering with the free and impartial conduct of the Presidentialelections and to further the candidature of Mr..J.R,-Jayewardene atthe Presidential Elections thus contravening Article 93 of;the Cons-titution. The petitioner complains-that the action of the 2nd respondentand his subordinates constitutes a violation of his fundamental, rightto freedom of speech and expression including publication .guaranteedto him by Article 14(T)('a) of the Constitution. .
The publication Nuthana Devadaththa is replete with scurrilousdiatribes defamatory Of the President and the Prime ; Minister andseveral other public men. Even the winners of.the Presidential literaryawards have not been spared the barbs of vitriolic invective.
At the hearing before us it is important to observe if was notsought to dispute that the publication us defamatory. The maincontention of the applicant howeVer is that the right to think as youwill, write as you think and publish what you write is a fundamentalfreedom guaranteed by the Constitution and cannot be abridged by 'restraints upon publication. The argument follows to some distancethe famous Blackstonian expostition in regard to the freedom of the press:
“The liberty of the press is indeed essential to the nature ofa free state: but this consists in laying no previous' restraintsupon publications, and not in freedom from censure for criminalmatter when published. Every freeman has an undoubted rightto lay what sentiments he pleases before the public?'to forbidthis, is to destroy the freedom of the press: but if he publisheswhat is improper, mischievous, or illegal, he must take'theconsequence of his own temerity.” Bl. Comm. IV pp 151,152. '* ‘
780
Sri Lanka Law Reports
(1982) 2 S.L.R.
Blackstone however drew the line where legitimate suppressionbegins chronologically at the time of publication. But the argumentput forward by learned Counsel for the applicant goes even further.The book cannot be seized even after publication though the offenceof defamation, if .it has been committed, can be punished. To seizeand impound the literature which a citizen prints and publishes wouldbe to muzzle the basic freedom of speech and expression includingpublication entrenched in the Constitution. The publication cannotbe tfJrred but if the publication is defamatory the law will take itscourse and punish the offence.
Learned Counsel for the applicant sought to derive support forhis proposition from the American case of Cohen v California (1).In this case the defendant Cohen was seen wearing a jacket imprintedwith the words ‘.‘F-k the draft,” in the corridor of the Los AngelesCounty Courthouse. This was Cohen’s way of condemning the SelectiveService System in the context of the Vietnam war. He was convictedby a C lifornia municipal court for disturbing the peace by offensiveconduc / i ne California Court of Appeal affirmed the conviction andrejected defendant’s contention that the conviction violated his federalconstitutional right to free speech. The California Supreme Courtdeclined review. By a majority decision the United States SupremeCourt reversed the conviction.
Justice Harlan who delivered the majority opinion held that oneof the prerogatives of the American citizen , is the right to criticizepublic men and measures and that meant not only informed andresponsible criticism but the freedom even to speak foolishly andwithout moderation. The State had no right to cleanse public debateto the point where it would not offend the susceptibilities of thegenteel. Although the particular vulgar expression used by the defendantwas more distasteful than others of its genre yet it is often true thatone man’s vulgarity is another man’s lyric. So long as there was no.exhibition of .an intent to incite disobedience to or disruption of thedraft, Cohen could not be punished for asserting the inutility orimmorality of the draft on his jacket. The State was free to ban theuse of‘fighting words” inherently likely to provoke violent reaction.But though the four-letter word displayed by Cohen in relation tothe draft was not uncommonly employed in a personally provocativefashion, in thi$ instance it was not clearly directed to the person ofthe hearer. No one who saw Cohen was violently'aroused.
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Mulalyoda v. Attorney-General tSoza. J.)
781
But a close examination of the facts of this case shows that whenCohen entered the courtroom itself he removed his jacket and stoodwith it folded over his arm. The State could not consistently withthe Constitution make the simple public display of the single four-letterexpletive a criminal offence. Justice Harlan, it is worth mentioning,added the caution that the Constitution did not give absolute protectionto every individual to speak whenever or wherever he pleases or touse any form of address in any circumstances that he chooses. Andit must be borne in mind in considering this and other decisions thatthe Constitutional provisions in regard to freedom of speech inAmerica are couched in terms very different from ours. Hence theAmerican decisions afford very limited guidance to us.
It would not be inapposite to examine the American provisions inview of the reliance on Cohen's case. The American Constitutionalprovisions in regard to freedom of speech are found mainly in theFirst Amendment to the Constitution of the United States of America.The first Amendment was' in a package of ten Amendments passedin 1791 and commonly referred to as the Bill of Rights. The FirstAmendment reads as follows:
“Congress shall make no law respecting an establishment ofreligion, or prohibiting the free exercise thereof; br abridgingthe freedom of speech, or of the press; or the right of thepeople peaceably to assemble, and to petition the Governmentfor a redress of grievances."
Blackstone's statement of the law is thought by many to haveinfluenced the First Amendment. This Amendment enacts an absoluteprohibition. It sets out no restrictions. It was left to the Courts toevolve them. It became evident that if freedom of speech meantliberty to calumniate others, liberty to subvert law and order, libertyto undermine the very foundations of the State, then these veryfreedoms could become a means to encompass their own destruction.The line had to be drawn somewhere. Holmes Ji, earlier an exponentof Blackstone’s view, drew it in the case of Schenck v United Sta-tes (2) in a famous pronouncement:
“The most stringent protection of free speech would not protecta man in falsely shouting fire in a theatre and causing a panic
The question in every case is whether the words used are
used in such circumstances and are of such a nature as to '
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Sri Lanka Law Reports
(1982) 2 S L.R.
create a clear and present danger that they will bring aboutthe substantive evils that Congress has a right to prevent. Itis a question of proximity and degree. When a nation is atwar many things that might be said in time of peace are sucha hindrance to its effort that their utterance will not be enduredso long as men fight and that no Court could regard them asprotected by any constitutional right.”
The “clear and present danger” test formulated by Holmes, J. wasaccepted by many American Judges but Jackson, J. felt this limitingtestjdid not go far enough. In a notable dissent in the case ofTerminiello v Chicagoi (3) he pointed out that:
“Invocation ofA constitutional liberties as part of the strategyfor overthrowing them presents a dilemma to a free- peoplewhich may not be soluble by constitutional logjc alone,”
and “ho liberty is made more secure by holding that its abusesare inseparable from its enjoyment.”
He then went on to conclude as follows:
“This court has gone far toward accepting the.. doctrine thatcivil liberty means the removal, of alb restraints from thesecrowds;and that all local attempts to . maintain; order areimpairments of the liberty of the citizen. The. choice is notbetween order and liberty. It is between liberty with orderand anarchy without either. There is danger that, if the Courtdoes not temper its doctrinnaire logic -with a little practicalwisdom, it will convert the constitutional Bill of Rights into asuicide pact.” – ■_
Later constitution makers-profited from the American experience.In many modem Constitutions- like the- Indian and Sri Lankan.- Constitutions, fundamental rights are entrenched but with appropriaterestrictions. In the Indian Constitution one whole Part comprisingArticles 12 to 35 is devoted to Fundamental Rights. Article 19(1) (a)of the Indian Constitution provides inter alia “that all citizens shallhave the right to freedom of speech and expression.” Sub-Article(2) of Article T9 as restrospectively amended by the Constitution
Malalnoda v. Attorney-General (So;a. J.)
781
SC-
First Amendment) Act 1951 provides as follows:
'Nothing in sub-clause (a) of clause (1) shall affect the operationof any existing law, or prevent the State from making anylaw in so far as such law imposes reasonable restrictions onihe exercise of the right conferred by the said sub-clause inthe interests of the security of the State, friendly relations withforeign State, public order, decency or morality, or in relationto contempt of Court, defamation or incitement to an offence
It-will be seen that the Indian-constitutibnal provisions in regardto> freedom of speech are subject to such'reasonable restrictions-asthe law may have imposed or may impose under the sub-heads SpeltOut in Article 19(2). The limiting provision of “reasonable restrictions”was probably inspired by Lord Sumner's celebrated dictum in theHouse of Lords decision in Bowman v Secular Society Lid'(4) wherethe question was whether the propagation of anti:Christian doctrinesconstituted the offence-of blasphemy:-'
‘ T'h^, words, as .well,-as the acts, which tend to endanger spcietydiffer from tiitfe. to .time in, proportion as society is stable, orinsecure, in fact, or :is .believed by its.reasonable members.to.be open to assault, In the present day meetings or processionsare held lawful which a hundred and fifty , years ago . wouldhave been deemed seditious, and this is not .because, the. lawis weaker or has changed, but because. t,he .times, hayijig
changed, society is stronger than before The fact.that
opinion grounded on experience has moved one way does notin law preclude the. possibility of its moving on fresh experiencein the other; nor- does it bind succeeding generations,, jtwhenconditions have, again changed. After all, the question whefhqra given ..opinion, is a danger to society is a question of the.titp^S'i and,, js ^ .question of fact. I desire to say nothing, .thatwould limit right of society to.protect itself.by proces$.qflaw from the dangers of the. moment, whatever, that righb-njaybe. but only to say that, experience, haying proved..-dangefsonce thought real to be now negligible,1 and dangers.pn.cejiiVgriypossibly imminent to have now passed^away.,; there js,,nothingin. the general rules as to blasphemy..and, irreligion, .as knertynto the law, which prevents us. from varying their applicationto the particular circumstances of our time in accordance withthat experience."
7 4
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Sri Lanka Law Reports
(19/12) 2 S L R.
Seervai in his Commentary on the Constitutiona' Law of India 2ndEd (1975) 1261 pp. 347, 348., has, on the question of freedom ofspeech and expression, emphasised the distinction between the Indianand the American Constitutions. Pre-censorship and preventive actionwere constitutionally permissible in India but m« in America. The‘clear and present danger’ test of Holmes, J. was rejected by theSupreme Court of India in the case of Babulal Purate v Maharashtra
. The test was already provided in the Indian Constitution – thereasonableness of the restriction. In fact the Indian Courts have evenbroadened the scope of the heads of restrictions to freedom of speechadumbrated in the Constitution. Seervai (ibid) p 353 refers to thecase of Jang Bahadur v Principal, Mohindra College (6) where TejaSingh, C.J. held that apart from the qualifications < ontained in clauses(2) to (6) of Article 19, there was the further qualification that therights conferred by Article 19(1) must not violate the rights of others.In that case, the petitioner had written a highly defamatory circulardefaming among others, the respondent, who w ts the Principal ofthe College in which the petitioner was studying. The respondentrusticated the petitioner, who contended that such rustication violatedthe freedom of speech guaranteed to him under Article 19(1) (a). Inrejecting the contention the court said that the lights conferred byArticle 19(1) were subject to the qualification ihat they did notviolate the rights of others. Article 19(l)(a) did not entitle thepetitioner to defame the respondent and the anion taken by therespondent w'as in the interest of discipline and did not violate Article19(1) (a).
Our Constitutional provisions in regard to freedom of speech aresimilar to but not – quite the same as the Indian provisions. In SriLanka freedom of speech whether it be the spoken, the written orthe printed word is guaranteed by Articles 14(1)(a) and 15(2) of theConstitution appearing in Chapter 111 on the subject-of FundamentalRights. Article 14(l)(a) declares- that “every citizen is entitled to thefreedom of speech and expression including publication.” Article15(2) however stipulates that “the exercise and operation of thefundamental right declared and recognized by Article 14(1) (a) shallbe subject to such restrictions as may be prescribed by law in theinterests of racial and religious harmony or in relation to parliamentaryprivilege, contempt of court, defamation or incitement to An offence. ”
:••O’.i'-j
It will be seen that the limitations to the rijVlit, Jdf freedom ofspeech are in Sri Lanka prescribed in more absolute terms than in
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Walalgoda i Attorney-General (Sosa, J.)
785
India. In Sri Lank i the operation and exercise of the right to freedomof speech are made subject to restrictions of law not qualified byany test of reasonableness. Neither the validity nor the reasonablenessof the law imposing restrictions is open to question unlike in Americaor India. Thisis not tosayof course thatthe Court should not be
reasonable inapplyingthelaw imposingrestrictions. Freedom of
speech in Sri Lanka therefore is subject to such restrictions as thelaw may impose under the heads mentioned in Article 15(2). Whatis the significant of the words “subject to”?
The phrase “s object to” as used in legislation came up forinterpretation in me Privy Council case of Akistan Apena of Iporov. AkinwandeTh omas(7).Lord Simondsdelivering the judgment
of the Boardexpessedtheview that thewords " ‘subject to' are
equivalent to ‘wittiout prejudice to.’ ” In the case of Smith v LondonTransport Executi e (8) the House of Lords had to consider themeaning of the expression “subject to” as it appeared in the TransportAct 1947. By section 1 of this Act the British Transport Commissionwas set up. Section 2 spelt out the powers conferred on the Commission“subject to the provisions of this Act.” Lord Simonds in his speechfrom the Woolsack explained that these words enafct that the powersgiven are subject o restrictions or limitations found elsewhere in theAct and went on to say at p. 569:
“The words ‘subject to the provisions of this Act" are
naturally words of restriction. They assume an authorityimmediately given and give a warning that elsewhere a limitationupon that authority will be found.’*
In the same case (p.577) Lord MacDermott in his speech said thatthe expression “subject to” “is commonly used to avoid conflictbetween one part of an enactment and another."
The language or Article 15(2) of our Constitution makes it clearthat the fundamental right of freedom of speech can only be exercisedsubject to the limitation that there can be no transgression of therestrictions prescribed in Article 15(2). So far as concerns the casebefore us freedom of publication means that the applicant may publishwhatever will not expose him to a prosecution or a civil action fordefamation. In exercising his fundamental right of freedom of publicationhe cannot shake off the contraints imposed by law. The freedom ofpublication does not include the licence to defame and vilify others.
. Sri LankaLaw Reports
(1^X2) 2 S.L.R
• 786
There..is. therefore op merit ii>vthe complaint that the applicant’sfundamental rights have. been infringed .by. the seizure ol his book,Nuthana Devad^ththa ,hy the Police. The application is accordingly.dismissed with,.costs..,
SHARVANANDA, J. – I agree.
^OLIN-THOMfc, J. – I agree.
Application dismissed '