Lankadeepa, Hiru, and other media had reported a news that civil servants who express their opinions on social media will face trouble. The news was regarding a circular bearing the number 04/2022 and issued on September 27 by the Secretary of the Ministry of Public Administration M.P.K. Mayadunne’s.
If Mayadunne, who issued the circular, or any head of an organization tries to implement this, we can fight against them in court. If it is implemented, there will definitely be lawsuits.
The second section of this circular states that ‘comments by a government official on social media networks’ without following the provisions of the Establishment Code is an offense that can lead to disciplinary action. But it is not meant to prevent a schoolteacher from sharing a post against the president, even in the Establishment Code. As clearly states, this is applicable to revealing grievances, news, and such things related to the institution.
However, even that was later challenged by the Supreme Court. There is a court verdict given to a teacher who told television media about an injustice that happened in her institution. We will elaborate later. The point is that the Supreme Court said that she has the right to speak in such a manner according to fundamental rights even though she spoke in violation of the even the clearly stated articles of the Establishment Code.
So, how can you limit social media comments that are not mentioned at all?
The clauses in the Establishment Code are related to the media. Social media and media are not the same. Social media is the personal space of a person. In no way can these clauses be used to limit the opinions published on social media.
The third article deals with officials who are not entitled to political rights. In the Establishment Code, a judicial officer, an officer of the armed services, a police officer or any other peace officer carrying out police work under the Code of Criminal Procedure, a prison officer, a staff or supervisory officer of the public service or an officer of the election department are listed those who do not have political rights. Excluding voting in elections, these people are restricted from participating in elections or supporting election candidates. Accordingly, such people cannot show support for parties through social media or media. But, beyond that, even they have rights of expression based on their positions.
In our inquiry, Joseph Stalin, the general secretary of the Ceylon Teachers’ Association, pointed out the following:
“The Establishment Code states that statements cannot be given to the media. But there is the historic Supreme Court judgment 76/2012 that challenges even those provisions. It was a case that invalidated the actions taken against a teacher at Mahanama Vidyalaya for commenting to the media. It confirmed that civil servants have the right to comment on certain matters to the media. We hope to take this matter to court.”
Mr. Stalin also gave us the above judgment for reading.
In the case 76/2012, the Supreme Court ordered those who tried to restrict the rights of expression to pay compensation of one lakh rupees.
It happened like this:
On November 11, 2011, teacher Samanthi Pelaketiya gave an interview to the Sirasa Vimarshana Program. She gave that interview at a time when justice had not been done for many of the injustices against her. In that interview, she spoke directly about the injustices that had happened to her.
After that, they brought up the Establishment Code and took action against her. In defense, the teacher and one of Sri Lanka’s most prominent President’s Counsels, J. C. Weliamuna acting on her behalf went before the Supreme Court and got this historic judgment. The Ceylon Teachers’ Union and its leaders including its general secretary Joseph Stalin fully intervened in this case.
It is very clear in that decision that there is no ‘possibility of restricting fundamental rights by presenting articles of the Establishment Code’. It also states that rights can be restricted only in matters of national security, public order, public health protection etc.
The Supreme Court has clearly ruled that institutions cannot use the Establishment Code to restrict people’s freedom of expression at the whim of despicable government officials who shamelessly protect the power of politicians.
The ruling further states that freedom of expression is essential for the democratic process to function properly. The judgment also states that the freedom of public opinion is of high importance as it is essential for modern democracy. As the court decision points out, citing page 212 of the book ‘Fundamental Rights in Sri Lanka’ by former Chief Justice Sharvananda, the fundamental right to freedom of expression under article 14(a) of the Constitution is based on the First Amendment of the US Constitution and article 19(1) of the Constitution of India.
Based on that concept, the court decision also cited several court rulings in India and the United States of America.
The Supreme Court of Sri Lanka has cited the 1971 American ruling of Austin vs. Keel. It states that the fundamental right to criticize the government is not limited to ‘responsible’ and ‘fact-based’ criticism. The judgment states that even the criticism of uncontrolled, ‘stupid’ comments have the same rights as long as they don’t harm anyone else. That means that we even have the right to share a simple meme criticizing someone on social media.
Here the Supreme Court also quotes a part of the 1964 judgment called New York Times vs. Sullivan. There, the US Supreme Court has said that comments made in debates on public, social incidents should be free, strong, and open and that they can even be sharp criticism of the government and public officials that use emotional, strong, insulting, and unpleasant words.
Accordingly, this decision by the bench including Chief Justice Sripavan didn’t just confirm the freedom of expression, but the freedom of expression of sharp, insulting comments.
Whether you are a woman, a man, a Buddhist, an atheist, tall, short, from Badulla, from Ampara, in the government service, in Nishanka Senadhipathi’s mercenary Facebook army, or in Iraj Weeraratne’s service army is irrelevant. You have freedom of expression.
It may be restricted if it incites extreme racism, harms national security, or causes criminal harm to another person, etc. If you are the chairman of the Election Commission or a judge, there are certain restrictions related to professional ethics and professional matters. In addition, some government officials are restricted from things like going on public political platforms to support parties.
Apart from that, our constitution gives us the right to criticize the government through a Facebook post and even through media if it’s something that people need to know. The constitution is based on those of the world. Even the judgments given in relation to them have confirmed that freedom.
So, the freedom of public servants cannot be restricted by an average joe like Mayadunne who has maliciously protected the government.
Human rights organizations are ready to take legal action and provide legal support if any officer is restricted through these circulars. Just like how teacher Samanthi Pelakatiya was paid compensation, the law will be implemented. Or ask P. K. Mayadunna to shove the circular up his ass.