Do we actually have the right to protest?

By Kishali Pinto Jayawardene

(October 19, Colombo, Sri Lanka Guardian) Much has been said regarding the right to freedom of assembly and association in Sri Lanka. It has been maintained for example that these are rights that are recognized in the country. However, as much as these rights are legally recognised in our law, it is a matter for doubt as to whether they are allowed to be practically recognised.

Raising public awareness regarding disappearances

One example suffices out of a plethora of such instances in recent times. On December 10 2007, (International Human Rights Day), a group of activists who had been working inter alia, on the issue of enforced disappearances, health rights, workers’ rights, trade, development and human rights for several decades, printed and distributed two leaflets during a public demonstration in Colombo.

These leaflets raised public awareness regarding two primary matters. First, the right to invoke the jurisdiction of the Court in protesting against unlawful harassment etc by security forces and police officers was detailed. Secondly, the leaflets outlined the right to protest against forced disappearances, given the hundreds of cases pending in the High Courts which have named officers of the military and police establishments as being responsible for grave human rights violations, including enforced disappearances and extrajudicial executions as well as the relevant reports of the Disappearances Commissions of 1994 and 1998 which in some cases under confidential cover and in other cases, in the Commission Report itself, named the alleged perpetrator.

One leaflet highlighted the fact that thousands had disappeared in Sri Lanka between 1989-1991 and many of those responsible have not been brought to justice, rather, they have been glorified and many are now responsible for the same patterns of grave human rights violations. The leaflet also contained two pictures of mothers (one Tamil mother and one Sinhalese mother) weeping for their disappeared sons (2006 and 2007) in public events along with a translation of a poem by pastor Martin Niemoller outlining the importance of speaking up against abuses, because ‘if we don’t speak up for others, there won’t be anyone left to speak up for me.’

Demonstrators threatened with arrest

Though the contents of the leaflets were innocuous and were firmly within the rights of legitimate speech, expression and publication, mid last year (many months after the initial protest), the organizers and participants of this demonstration were threatened with arrest on the basis that they had infringed the law. The demonstrators were therefore questioned, in some cases intensively after presenting themselves at the relevant police station. One particular intimation made by the questioning police officers was to the effect that when general allegations against abuses by police and military are made, they can demoralize the security forces and create a bad opinion about them amongst the general public.

A firm stand was taken by the demonstrators however and the threat was thereafter dropped. The significance of these incidents lies not so much on actual action being taken against protestors and dissenters but rather in the threat of what it is held out to be as the probable consequences of such actions. In the ultimate, the chilling of freedoms essential for public life including for that matter, the right to freedom of expression becomes inevitable. A corollary of this is that many fear to even talk or write about these incidents openly. The quality of the society that we live in consequently suffers.

Such deterrent threats by state authorities against persons organizing or participating in protests of this nature are, of course, prohibited by the Constitution. We have several decisions to this effect all of which however appear now to be disregarded. Indeed, as has been judicially observed though in a somewhat different context of university discipline - “The right to criticize public men and matters includes the freedom to speak ‘foolishly and without moderation” (per Sharvananda CJ in Dissanayake v Sri Jayawardenpura University, [1986]2, SLR, 254).

The vague and arbitrary nature of emergency regulations

The problem lies in the nature of the relevant emergency regulations which enables the Secretary to the Minister of Defence to make an order imposing upon a person restrictions on association or communication, and in relation to “dissemination of news or the propagation of opinions”, to prevent that person acting “in any manner prejudicial” to national security, public order or the maintenance of essential services. These regulations also make it an offence to distribute leaflets that are “prejudicial” to public security, public order or essential services. They state further that no person shall, by words of mouth or by any other means whatsoever, communicate or spread any rumour or false statement which is likely to cause public alarm or public disorder. The above regulations are phrased in so broad terms as to render them unconstitutional, also amounting to a form of prior censorship which is greatly inimical to free speech.

In several decisions, (most notably, Joseph Perera Vs The Attorney General (1992) 1 Sri LR 199, 230), the Supreme Court has maintained that the right to initiate a responsible and responsive communication of public interest issues assumes crucial importance in times of national emergency and civil unrest where any restrictions imposed on the right to free speech and expression in the interests of national security can only be to the extent strictly required by the exigencies of the situation. Therefore it is of extreme importance that the pretext of national security is not used to place unjustified restrictions on the exercise of these freedoms.

The principle is that any law which confers unguided and unfettered discretion upon an executive authority without narrow objectives and definite standards to guide such authority is unconstitutional.

The above principles have been laid down in Sri Lankan jurisprudence as well as by the Courts in other jurisdictions as for example, New York Times C. Vs U.S. (1971 403 US 713), Organization for a Better Austin Vs Keefe (1971 402 US 415),Venugopal & Or (AIR 1954 Madras 901) and In Himat Lal, (Ahemedabad AIR 1972 SC 87 1973 2 SCR 226).

Rolling back of emergency regulations needed

We must see a stop to persons being interrogated and threatened with action under emergency regulations from disseminating legitimate information to the public. One by one, each freedom which was so painstakingly developed by the Supreme Court in the late eighties and early nineties is being gradually diminished. We need to see a public call for a rolling back of the Emergency Regulations in this ostensibly post-conflict stage.

What justifies the continuance of these regulations in their spirit and form? This is a question that should be asked repeatedly by us time and time again.

-Sri Lanka Guardian