Can freedom of speech lead to jail?

Attorney Nethmini Medawala speaks to Attorney Thishya Weragoda and Attorney Ermiza Tegal on the role of Freedom of Speech in a discussion organized by the Hashtag Generation

“There wouldn’t be this much of a public uproar if it wasn’t for the statement of the Police,” said Attorney Thishya Weragoda.
“Just because the Police say that they can take legal action for exercising a form of freedom of speech, the simple answer is, they can’t actually do it. Even if they arrest someone for it, the judge would dismiss it since they haven’t done anything illegal,” Weragoda said.

In the light of the recent events when several civilians who were lined up near a milk powder store at Mirihana, allegedly booing down the President’s motorcade, three legal professionals came together to discuss the concerns surrounding freedom of expression in Sri Lanka.

Attorney Nethmini Medawala spoke to Attorney Thishya Weragoda and Attorney Ermiza Tegal on the role of freedom of speech surrounding the issue in a discussion organized by the Hashtag Generation.
The controversy unfolded when Police Media Spokesperson and Senior Superintendent of Police Nihal Thalduwa, said that it was prohibited to publish and exchange statements that insulted the President on social media or any other media.

He added that the Police are vested with the authority to take legal action against those who do so. Even though he later tried to change this statement, a public debate emerged on the nature of freedom of speech and its limitations.

What exactly is freedom of speech?

“Freedom of Speech comes under Freedom of Expression. It’s the Constitution that gives us the right to express different thoughts through different mediums,’’ said Attorney Ermiza Tegal.
“It’s the Constitution that provides the base to every other law. There’s a part in this Constitution that protects the basic rights of civilians. In one of these sections, it is mentioned that every citizen is entitled to the Freedom of Speech and Expression including publication. Also, people in authority have sworn to protect this freedom of speech, serve people without compromising it and promote it,” she said.
Tegal added that it was through dissent that people could express to the leaders that any decision or action was harmful or had a negative influence on them.

"The limitations of freedom of speech can only be prescribed by the law and the police can’t just come and accuse you of saying something illegal and threaten you with prosecution"
- Thishya Weragoda

“These leaders have the responsibility of listening to the people. It is through this communication that public trust is built. An expression only becomes illegal when it results in anything harmful or criminal. Dissent or disagreement manifested by conduct or action is a cornerstone of the Constitution.
“Whether an expression is illegal should be decided by judges who must decide on controversies according to their considered opinion. And if this freedom is infringed, we can complain about it to the Supreme Court.”

The Police should be securing human rights, not violating them

Attorney Thishya Weragoda also said that if the Police decided to arrest someone for a crime in this regard, then they should produce that person properly in the court.
“But they can’t just take them to the CID, take a backup of their phone’s data, advise them and send them away which is a serious violation of one’s privacy. Also, the Police or the Army cannot restrict what we speak of. Only the Parliament and the Courts have the authority to enforce that restriction,” he said. 

“The Police Spokesman can’t say that he can charge someone using any laws and therefore we can’t speak of certain things. Even if they do, they won’t be able to win any of the cases, because Freedom of Speech has a wide definition to it.
“The judicial system always leans towards the Freedom of Speech, not towards the limitation of it. The limitations of it must be interpreted in the most restrictive way,” Attorney Weragoda said.
Attorney Ermiza Tegal added that if someone is arrested for such an action, they should check under what law that they’re being arrested.

"These leaders have the responsibility of listening to the people. It is through this communication that the public trust is built"
-  Ermiza Tegal

“Unless they were exercising Freedom of Speech using unlawful methods, they have the freedom to secure their basic Human Rights. The Police should work with the intention of securing Human Rights, not violating them and abusing their powers ignorantly.
“Therefore these careless actions of the Police should be changed and disciplinary action should indeed be taken if they keep on happening. And the judicial system should also look well into the accusations regarding these basic Human Rights and work towards it responsibly and quickly.”

What can be the limitations of freedom of speech?

“According to our Constitution, there are no limits to the freedom of thought and conscience. But we might not be able to express all those thoughts,” quoted Attorney Thishya Weragoda.
“Article 10 denies the government the power to control mens’ minds while article 14a excludes the power to curb their tongue’ the above-mentioned laws may explain and justify differences in regard to restrictions, he said quoting the law.

"Freedom of Speech comes under Freedom of Expression. It’s the Constitution that gives us the right to express different thoughts through different mediums"

“Also our Constitution permits no restrictions in relation to the freedom of thought while Article 15 permits some on freedom of speech. Another section says that the exercise and operation of the Fundamental Right declared and recognized by Article 14 (1a), which is the Freedom of Speech, shall be subject to such restrictions as may be prescribed by law in the interest of racial and religious harmony or relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”
“Therefore it is clear that the limitations of Freedom of Speech can only be prescribed by the law and the Police can’t just come and accuse you of saying something illegal and threaten you with prosecution.

“They can’t also severely restrict one from saying something just because it insults someone. According to the Penal Code, it is said that one’s not allowed to speak against the President or Government but that’s only by using unlawful methods such as armed rebellions and conspiracies.
“It is also mentioned in Section 120 that it is not an offence under this section by intending to show that the State has been misled or mistaken in its means or to point out errors or defects in the government or any part of it or in the administration of justice, which is why criticism is considered important and is always allowed.”

Democracy requires dissent  

People have criticized the Government since ancient times and now we can see it a lot more because of social media.
“Social media has become a platform where criticism is exposed the most to the public,” said Tegal.
She added that anyone who bore a popular status in the world knows that they were under public scrutiny.
“Fame is a status that the society gives that person. Without the public, that status or reputation won’t exist as the entire process works between the person in fame and the public. If a person is engaged in public service, then the public has the right to criticise them.

"Therefore it is clear that the limitations of Freedom of Speech can only be prescribed by the law and the Police can’t just come and accuse you of saying something illegal and threaten you with prosecution"

“If we take the law surrounding insulting into consideration, people who are famous are undoubtedly more exposed to it and the effect of it on them is also much higher as opposed to ordinary people. Therefore they can use the law to prove the fact that their reputation is harmed if the insult is targeting something personal and is harmfully dishonest. People of power and fame should also have the strength to receive and handle criticism,” she said.
Criticizing politicians on the other hand is common and also a necessity. Their dignity is created within that public discourse.

“Dissent in freedom of speech where unpopular and different ideas are expressed is a vital part of democracy. It requires dissent not only to be tolerated but also to be encouraged,” Tegal said.
She also stated that it was the people who are Sovereign, and not those who sit in the seats of power. It is the voice of the people which ultimately prevails. Free political discussion is thus necessary to the end that the Government may be responsive to the will of the people and changes may be obtained by peaceful means.

"Article-10 denies the Government the power to control mens’ minds while Article-14a excludes the power to curb their tongue’- the above-mentioned laws may explain and justify differences in regard to restrictions"

What can we do if we are denied the right to dissent?

If we are denied the right to dissent, we can seek support from the law regarding the violation of basic Human Rights. It is advisable that anyone who gets into a similar situation should immediately consult legal support or invoke discussion through social media.
Reaching out for journalism could be considered as another option. In conclusion, slandering someone is not a criminal offence and therefore the Police cannot investigate you. Even if the President complains about it, a Minister or any other person of high authority complains about it, the Police don’t have the authority to investigate it, the professionals agreed.