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A petition challenging the Government's media censorship of military news imposed in November last year was dismissed yesterday by the Supreme Court. The inter alia held that the restriction imposed was not disproportionate to the interest of national security. The Bench comprised Justices, Dr. A.R.B. Amerasinghe, S.W.B. Wadugodapitya PC and L.H.G. Weerasekera. The court made no order as to cost. The petitioner is Sunila Abeysekera, President of the Movement for Interracial Justice (MIRJE), Executive Director of INFORM (Sri Lanka Information Monitor) and member of the Executive Committee of the Movement for Free and Fair Elections (MFFE). She has cited Ariya Rubasinghe, the Competent Authority Government Information Department, Deputy Defence Minister, Gen. Anuruddha Ratwatte, Posts, Telecommunications and Media Minister, Mangala Samaraweera and the Attorney General as respondents. In the judgement (with the other judges agreeing) Justice Dr. Amerasinghe inter alia stated. Article 28(e) of the constitution draws our attention to the fact that - "the exercise and enjoyment of rights and freedom is inseparable from the performance of duties and obligations", and reminds us that accordingly it is the duty of every person in Sri Lanka to respect the rights and freedoms of others. Article 15 (2) states that "the exercise and operation of the fundamental right declared and recognised by article 14 (1) (a)" namely, freedom of speech and expression including publication, shall be subject to such restrictions as may be prescribed by law in the interest of racial and religious harmony or in relation to parliamentary privileges contempt of court defamation or incitement to an offence." Article 15 (7) states that the exercise and operation of the fundamental rights declared and recognised by article 14" shall be subject to such restrictions as may be prescribed by law in the interest of national security public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others or of meeting the just requirements of the general requirements of the general welfare of a democratic society. In his judgement Justice Dr. Amarasinghe also observed that although one may think what one may wish no intelligent person articulates or ought to articulate every thought that happiness to pass through his or her mind, anywhere at any time. In the exercise and operation of a person's freedom of thought conscience and beliefs and right to impart opinions, one might be restrained by the Buddha's advice to be watchful of one's speech recalling the fate of the ever hungry spirit (Peta) with the head of the pig and the body of a human being with its mouth swarming with maggots who ignored the Buddha's admonition. Dhammaththa Vagga xx6. "If it turns out that the regulations are abused, we would have a different kind of case than that presently before us. All that is now here is the validity of the regulations ex facie, not the review of particular actions of the Competent Authority, and I am unable to agree that in this posture of things the regulations can be said to be unconstitutional. Shelton v. Tucker, (106) at (U.S.) p. 499 and (S.Ct.) p. 258. Moreover, in matters of this nature, although this Court has the power to decide whether regulation made under section 5 of the Public Security Ordinance is "necessary", see Channa Pieris' case, (3) at pp. 140-141: Siriwardena v. Liyanage, (107) at p.329: or 'expedient'. in the sense of being a timely measure, neither too early nor too late, having regard to prevailing circumstances, yet "due weight" ought to be given to "the opinion of the President that the regulation is necessary or expedient in the interests of public security and order." Per Sharvanada, C.J., in Joseph Perera's case, (1) at pp. 216-217. It said, "Although the Government in Brind's case, (19) did not contend that the interference with the applicant's rights was a prime element in the struggle against terrorism, the European Commission of Human Rights found that it could be regarded as "one aspect of a very important area of domestic policy." Vide pp. C.D. 83-84. Having regard to the extensive experience of the executive and legislature on terrorist matters, and "bearing in mind the margin of appreciation permitted to States," the limited extent of the interference with the applicant's rights and the "importance of measures to combat terrorism", the Commission found that it could not be said that the interference with the applicant's freedom of expression was disproportionate to the aim sought to be pursued. Vide p. C.D. 84. Similar views were expressed by the Commission in McLaughlin v. U.K. (49) at p. CD 92. The margin of appreciation in assessing the pressing social need, and in choosing the means, and fixing the conditions for achieving the legitimate aim of protecting national security is a wide one. Klass and others v. Federal Republic of Germany, (108) at p. 232; Leander v. Sweden, (60) at p. 453; The Observer and the Guardian v. U.K., (15) at p. 178. See also Yasapala v. Wickramasinghe, (115). In Visuvalingam & Others v. Liyanage, (27) at p. 375, Soza, J. said: "It would be difficult for anyone but the repository of power to form an opinion as to the occasion for its exercise. He is entrusted with the maintenance of public security. He has a better "feel" of the crisis with the intelligence services at his command than anyone else..." The petitioner contended that "the imposing of censorship in this manner has, in any event, been rendered an obsolete exercise by the advent of the communication revolution with its laptop publishing facilities, satellite telephones, portable scanners and TV transmission equipment that transmit news at the speed of light." I agree that if information has been already made public or had ceased to be confidential, it would unnecessary to prevent disclosure. Weber v. Switzerland, (105) at p. 524; The Observer and the Guardian v. U.K., (15) paras 67-70; The Sunday Times v. U.K., (16) at pp. 243-244; Vereninging weekblad Bluf v. The Netherlands, at p. 203. However, there was no evidence in the instant case that information that had in fact been disclosed or ceased to be confidential was being suppressed by the regulations. The possibility that prohibited information may be transmitted always exists; but that does not carry with it the corollary that such information should not, in the interests of national security, be classified as confidential. It said: Having regard to all the circumstances, I am of the view that the restrictions imposed were not disproportionate to the legitimate aim of the regulation, namely, the furtherance of the interests of national security within the meaning of Article 15 (7) of the Constitution, and that a fair balance between competing interests has been struck. The restrictions complained of correspond to a countervailing social need sufficiently pressing to outweigh and overbear the petitioner's, (and having regard to the societal value of Article 14 (1) (a), as well as the public's) interest in freedom of speech and expression, within the meaning of the Constitution. For the reasons set out in my judgment, I declare that the petitioner's fundamental rights guaranteed by Articles 10, 12 (1) and 14 (1) (a) have not been violated, and dismiss the petition. Mr. R. K. W. Goonesekera with Suranjith Hewamanne, J.C. Weliamuna and M/s Kishali Pinto Jayawardene appeared for the petitioner. Additional Solicitor General Saleem Marsoof PC with Uditha Egalahewa SC appeared for the respondents.
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