Squeezing out public rights
In a tantalisingly conservative majority finding
this Tuesday, a Chamber of the European Court on Human Rights has
refused to hold that rights of freedom of expression secured under
the European Convention, creates rights of entry to 'quasi-public'
property in order to fully demonstrate that freedom. The Court has
declared moreover that such rights of entry may not even, exist
necessarily, to all publicly-owned property (Government offices
and ministries, for instance).
the European Court, though not binding on Sri Lanka, are of high
persuasive authority and have been cited to full effect in several
judgements of the Supreme Court in this country.
finding was particularly important in that it involved attempts
by environmental activists to use the town centre, to impart information
and ideas about proposed local development plans that they said
would have a severely detrimental effect on the environment.
town centre, originally built by a public body on the direction
of the government and later sold to a private company, was situated
in close proximity to public services and though essentially a shopping
centre, was commonly regarded as the town centre. The applicants
argued therefore that this was 'quasi-public- space within which
they had the right to exercise freedom of expression in a reasonable
manner. They had been refused permission to use this space to demonstrate
their concern on crucial environmental issues and on one occasion,
were prevented by security guards of the company from collecting
signatures from members of the public using the centre.
was that the State was directly responsible for the interference
with their freedom of expression. A public entity had built the
centre on public land and a politician had approved the transfer
into private ownership. As the information and ideas that which
they wished to communicate were of a political nature, their expression
was entitled to the greatest level of protection. Access to the
town centre was essential for the exercise of those rights as it
was the most effective way of communicating their ideas to the population
and the State had a positive obligation in this respect. Another
facet of the complaint was that the local authority itself used
the centre to advocate a political proposal regarding the re-organisation
of local government even though the company had refused to allow
environmental activists to demonstrate their freedom of expression
in the centre.
On the other
hand, the government pointed out that the town centre was owned
by a private company that, in the exercise of its rights as property
owner, had refused the applicants' permission to use the centre
for their activities. The government could not be regarded as bearing
direct responsibility for any interference with the applicants'
exercise of their rights.
In these circumstances,
the fact that ownership of the land had previously vested in the
local authority, was irrelevant. In the alternative, the Government
would be put under a heavy burden when selling land, to obtain the
consent of a prospective purchaser to allow canvassing on the land.
merits of these competing arguments this week, the European Court,
in a six to one finding in Appleby and Others vs the United Kingdom
Application no. 44306/98) substantially agreed with the government
stand, affirming a particular balance between property rights and
freedom of speech that many rights activists would critique as being
restrictive. Given that the United Kingdom has long been engaging
in a wholesale privatisation of public property, the finding is
expected to trigger protests that people will ultimately have no
rights over what used to be cherished public space.
The Court did, however, make the quiet qualification that this rationale
would not apply in two circumstances. Firstly, where the bar on
access to property has the effect of preventing any effective exercise
of freedom of expression. Secondly, where it would be clear that
the essence of the right has been destroyed.
In these situations,
it may well be that a positive obligation could be imposed on the
State to ensure the protection and the enjoyment of expression rights
by regulating property rights. The citation of the corporate town,
where the entire municipality is controlled by a private body as
a fitting example in this regard, would however been seen by critics
as an extreme example.
in the instant case, had a different complaint. They could not have
denied that they had other methods of campaigning for their cause
among the local people. Rather, their argument was that the easiest
and most effective method of reaching people was in using the centre,
which should not be barred from them. This was a point of view deemed
to be too far reaching for the Court to accept.
the European Court willing to be persuaded about the concept of
'quasi-public' space. The finding was accordingly that no element
of State responsibility can be derived from the fact that a public
development corporation transferred the property to the private
company or that this was done with ministerial permission. Connected
complaints relating to violation of the right to assembly on the
same facts, were also not found
dissenting opinion of the sole member of the Court however, raised
some important questions in relation to the rights involved. The
opinion identifies the primary issue in the case as being the State's
positive obligations in a modern liberal State where many traditionally
state-owned services like post, transport, energy, health and community
services and others have been (or could be) privatised. In this
situation, the dissenting opinion asks as to whether private owners'
property rights should prevail over other rights or whether the
State should still have some responsibility in securing the right
balance between private and public interests?
factors predominated in the formation and functioning of the town
centre in the instant case. Not only was the centre originally planned
and built by the government and continued to be situated close to
essential public facilities but there was a specific involvement
of the public authorities and public money in the functioning of
This translated into the centre being a "quasi-public"
space, or in other words an entity where public interests and money
were and still are involved, distinguishing it effectively from
purely private property or as was put tongue-in-cheek, "my
home is my castle" type of situation. Moreover, it was sought
to be used for peaceful dissemination of information on issues of
great local concern, a request that, in the circumstances of the
case, should have been allowed.
the dissenting opinion strongly affirms the view that public authorities
cannot be allowed to divest themselves of any responsibility to
protect rights and freedoms otherwise guaranteed to the people through
privatisation. The State should still bear responsibility for deciding
how forums created by them are to be used and for ensuring that
public interests and individuals' rights are respected. The majority
decision therefore 'unnecessarily gave priority to the property
rights of the private company over the applicants' freedom of expression
The European Court decision this week, has interesting implications
for this country, currently following along the same enthusiastic
lines of privatising public interests as is the United Kingdom.
The coercion of public rights into adopting defensive positions
against the might and power of private stakes appears to be however,
now a foregone conclusion for both countries.