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Article 14 vs. Article 15
Freedom of expression is not an inviolable right

An op-ed on the freedom of speech in these troubled times

11.05.2020  |  

Viranjana Herath has many years of experience in both print and electronic media. He is an activist who struggles for freedom of expression. He joined us to discuss media behaviour, social media responses and the government’s actions before COVID-19.

With 17 arrests relevant to the expression of ideas, society has started to think about the freedom of speech seriously. Many people argue that it is a fundamental right. So why do the arrests continue to happen? Are the laws insufficient? Or has the media not understood their responsibilities?

Article 14 of the constitution has guaranteed freedom of speech and expression which is a fundamental right of citizens. However, it is not infringeable as some people misunderstand it. Freedom of expression has its limits. The 15th article of the constitution demarcates such boundaries. For example, we cannot use freedom of speech to create conflicts among ethnic communities. Citizens have no right to use freedom of expression as they wish, the government also has no power to restrict freedom of expression covering the constitutional containment.

Some who expressed their views via social media were arrested recently on the accusation that they made false statements. The charges were framed against them in the court were framed controversially. ICCPR Act has been used to frame charges against some persons. There is an argument that the authorities misuse the law. What is happening?

No government in Sri Lanka has not acted positively concerning the right for free speech. Police have manipulated the law to suppress freedom of expression. For example, the ICCPR Act was managed to take actions against short story writer Shakthika Sathkumara. When a suspect is produced before the court under the ICCPR Act, the lower-courts cannot grant bail. The same practice is followed by police even now. No case under ICCPR Act has yet concluded. The judiciary has not yet decided whether the ICCPR Act can be used to frame charges in this manner. However, ICCPR stands for International Convention on Civil and Political Rights, and it was ratified in Sri Lanka to broaden the scope of human rights. The objective of the convention does not contain human rights in any way. In another example, we must use the Quarantine Act to control pandemic and not to restrict the fundamental rights.

People have the right to criticize their government, and the government must bear it. We must not forget that the people also make sacrifices in the way same as the President, security forces, and health workers. Many do not have proper food. There is no appropriate to access essential goods. Moreover, people have no one to complain to about their difficulties. Public officials do not investigate them. People have no chance to express their views to the media, and the media does not give priority to such issues. People have the right to write about their woes on social media, and if it is not allowed, it is a awful situation.

A student of Peradeniya University was arrested for sharing a piece of news regarding allocating the hospital of Kothalawela Defense Academy to treat the VIPs. How many fake news posts are published regarding the promises of the government? How can we segregate fake and real news? How fair is deciding the accuracy of a report based on the criteria of the government?

Throughout history, governments have decided truth and falsehoods on comparative terms which are beneficial to them. The student might have expressed his view with some kind of shared content. The citizens must follow the advice of the health authorities and stay at home as much as possible. Sharing the unconfirmed content is also a problem. However, there must be proportionate punishment for that. Is it essential to remand that person? If he admits that he has done it without proper investigation, why shouldn’t he be given a chance to correct it?

One doctor expressed his view on social media about the possible decline of diagnosing COVID-19 cases due to of lack of essential materials to conduct PCR tests. Let us assume that these news stories are wrong. But this can be countered by the state by publishing accurate information on PCR tests conducted. However, the law was not implemented in the same way the student was penalized. The doctor should not be arrested. He admitted that he had committed an error and the issue ended there. Also, we know that people may make mistakes. How many fake news is posted on mainstream media? Sometimes, they correct such reports, but there are instances that media do not worry even to post a correction. How is the law implemented in such cases? These are serious matters.

The government can argue that these actions are taken due to the present context. The majority seems ready to admit it. That means the argument of the government has more weight and recognition.

People are bearing difficulties and respect the regulations like a curfew. People stayed home for a long time without complaining. We admired the law. Human rights are also like that, and it may be limited sometimes. We know that the right to organize and meet are human rights. Restrictions on such rights are practiced everywhere in the world now. However, the authorities must explain how these restrictions help the control of the disease.

What is the impact of sharing the news about special privileges to VIPs? Was it detrimental to the control of the disease? Didn’t the doctor’s idea affect disease control measures? We have a problem as to whether the government is manipulating the laws to control the situation or to suppress potential dissent.

For instance, a group conducted a protest in Gampola on the grounds that they had not received essential commodities and they had been distributed partially. One can argue that they have committed an offence under the present context. Likewise, we have to admit that people have no other alternative in a backdrop as no one takes care of their needs. When people are helpless individually, they have to organize and come out onto the streets. What should the government do then? Must they provide a solution or do they arrest people? Laws are implemented to safeguard people, and no one has the right to suppress people and make them helpless by law.