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).

Decisions of 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.

This week's 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.

Vitally, the 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.

Their position 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.

Deciding the 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.

The applicants 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.

Neither was 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

The partly 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?

Particular 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 the centre.
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.

Importantly, 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 and assembly.'

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.

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