Photo courtesy of Breitbart
Citizens participate in the democratic process by electing their representatives but in the five or so years between elections, peaceful protests serve as a tool to ensure that these representatives remain accountable. In order to be effective, protests are intended to be disruptive so that public attention and discourse are directed to the issues being canvassed. In Sri Lanka, the right to protest is encompassed in three constitutionally guaranteed rights: the freedoms of speech and expression, peaceful assembly and association (Articles 14(1) (a), (b) and (c) of the Constitution.
Protests take place often across the island from trade unions, political organizations and student groups to human rights movements and families of the disappeared. In August this year, a State Minister tweeted that more than 800 protests had taken place across the country since April; this is a testament of the tendency to voice dissent by protest. But many people do not appreciate for their importance and much of the surrounding public discourse relates to the traffic congestion they cause. It is, however, an integral right for ensuring the health of a democracy.
Using Covid-19 to suppress dissent
In July 2021 it was announced by the police that, based on a order of the Director General of Health Services, public gatherings such as protests were banned until further notice and that the police would take action based on that directive. The notice didn’t make reference to where the power to enforce such a ban stemmed from. The legality of the ban was dubious as the right to peaceful assembly can only be restricted by a law made by Parliament, with emergency regulations during a state of emergency being the only exception.
This is not the first time that the government has attempted to regulate protests; in early 2020 protesters were asked to limit themselves to a designated ‘agitation site’ in a vacant space opposite the Galle Face Green. This out of sight out of mind approach to dissent completely defeats the purpose of protests as a way to spark discourse in a democracy.
Despite its questionable legality, there have been a spate of arrests of protesters since the announcement of the ban, mostly at demonstrations relating to the Kotelawala National Defence University Bill, salary anomalies of teachers and the chemical fertilizer ban. While the pandemic was used as justification, the surrounding circumstances suggest that it is just a guise to defend a larger pattern of crackdown on dissent.
The ban on protests citing health restrictions was announced on July 6, in stark contrast with the relaxed restrictions on measures to combat Covid-19 announced just days later. While protesters were being arrested for gathering in public, weddings with up to 150 guests, conferences with up to 50 attendees and cinemas and theatres at half capacity were allowed to function. No rationale was provided for why protests were more conducive to the spread of the virus or a less important exercise of freedom than these other events. Similarly ironic was when Highways Minister Johnston Fernando said that only the unintelligent would protest during a pandemic while he attended a ceremony to inaugurate the Kelaniya Bridge.
This mixed messaging from the government continued when there were attempts to suggest that protests would lead to the emergence of a ‘protest cluster’ of Covid-19 cases. This coincided with the government further relaxing restrictions by opening places of worship and allowing indoor concerts. In his address to the nation announcing lockdown on August 20 President Gotabaya Rajapaksa said, “It is clear that this is not a time for strike actions and protests. Do not attempt to destabilize the country.” However, in contrast to this, the Kandy Esala Perahera was allowed to continue with a large procession despite the lockdown.
Had concerns for public health been the genuine motivation, protesters congregating could have been advised to maintain social distancing and held to the same standards as those massing for other events such as weddings. These double standards leave no doubt that the crackdown on protests is motivated by a desire to silence dissent rather than concerns for public health. Using the pandemic as an excuse for the crackdown, and going as far as to vilify protesters by blaming them for the spread of Covid-19, demonstrates an attempt by the government to exploit the pandemic to chip away at democratic rights to save face in light of the mounting displeasure among the public.
Legality of the ban
It is no easy feat for any government to manoeuvre a country through a global pandemic but democratic institutions provide for such challenges and have the necessary tools to do so. In the wake of the pandemic, several countries drafted new laws to deal with the situation. Sri Lanka, 18 months into the pandemic, has chosen not to follow this course thus far. Instead, for the most part, there has been reliance on quarantine regulations made under the Quarantine and Prevention of Diseases Ordinance to deal with the pandemic.
What is important in this regard is that quarantine regulations cannot be used to restrict constitutionally guaranteed fundamental rights. While the Constitution does recognise that certain rights (including the freedoms of peaceful assembly, speech and expression and association) can be restricted in requisite circumstances, it necessitates that such restrictions are contained in laws enacted by Parliament. With the exception of emergency regulations under the Public Security Ordinance, mere regulations, circulars or guidelines cannot be used to restrict fundamental rights. Thus, on the face of it, the announcement banning protests is unconstitutional.
It appears however that the police utilises the law on public nuisance when arresting protesters, a practice that has been followed even before the pandemic, the legality of which has previously been questioned. In any event, preventing a protest on the basis of public nuisance must be based on an order from a Magistrate having considered the particular circumstances and not an outright banning of all protests by the police or the Director General of Health Services.
In August, the Bar Association of Sri Lanka (BASL) raised concerns about a meeting that had taken place with the attendance of Magistrates from across the country where instructions had purportedly been provided on using the Criminal Procedure Code for controlling protests. The BASL, noting that “There was a perception among judicial officers that there was an effort to impress upon them to give orders”, raised concerns on the impact this could have on judicial independence or the perception thereof. They reiterated that the decision in each case of a protest should be decided on its own merits.
Not only were protesters arrested but in some instances, after being granted bail, they were packed off to quarantine centres against their will. The use of quarantine as a form of extrajudicial detention or punishment is a dangerous precedent that can lead to the suppression of rights by bypassing the legal system.
Crackdown on freedoms
The ban on protests comes in tandem with a crackdown on comments made in instances that don’t involve public assembly raising serious concerns for the freedom of expression, including media freedom. There have been multiple affronts to the freedom of speech and expression, some surrounding statements made relating to the pandemic response. Early on in the pandemic, the Acting IGP instructed police officers to take legal action against peole who criticised government officials and obstructed their duties on social media. Responding to this, the Human Rights Commission cautioned that such a move would be unconstitutional and warned of the chilling effect it would have on the freedom of expression.
Concerns were also raised this year about a statement the President made in public, suggestive of a threat to certain media organisations critical of the government. Additionally, there have been several cases of journalists arrested, threatened or intimidated for their work. In April, a journalist covering a protest by health workers was arrested and allegedly assaulted while in remand. In August, web journalist Keerthi Ratnayake was arrested under the PTA and is being held on a 90-day detention order. His computer and phone were reportedly seized and other journalists connected to him have been interrogated. Punniyamoorthy Sasikaran, a Batticaloa based journalist, is also reported to have been harassed and intimidated by police on numerous occasions in recent months.
The crackdown on the freedom of expression hasn’t been limited to journalists. An activist involved in the black flag campaign by the Catholic Church was reportedly called in for questioning by the CID over statements he made on social media. The CID also reportedly questioned a doctor who spoke out on social media about the situation in a national hospital, allegedly inquiring about his mental state. Trade Unionist Ananda Palitha was also arrested for making statements on an imminent fuel shortage but was released on bail by the Magistrates Court, which held that factual statements could not be a reason for arrest.
While the protection of the freedom of expression is vital to a democracy as the free flow of information allows for accountability and transparency, it is clear that right is currently under siege in Sri Lanka. A continued move in this direction may gradually lead to an environment of self-censorship in fear of repercussions.
The need for a balance
Using the pandemic to restrict rights is not only unconstitutional but also sets an extremely dangerous precedent. The pandemic is well into its second year and the prolonged ignoring of these freedoms will create a new normal where rights and democratic institutions are undermined beyond just this crisis. The government must find a balance that protects both the health of our democracy and the health of the people. Authorities in power need to do better and the opposition and the citizenry must hold them to it, continuously pushing them towards this balance.
In the words of Justice Mark Fernando in the famous Jana Ghosha case, “Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day”. Sacrificing democracy in the name of Covid-19 will have repercussions that last long beyond the pandemic.