•  A right guaranteed by the Constitution, protected by the Supreme Court
• Quarantine regulations to suppress Covid or to suppress dissent?
• Peaceful protests an antidote to governmental excess

BY Sumudu Chamara After the arrests of some 30 activists who staged a protest against the General Sir John Kotelawala National Defence University (KNDU) Bill and the quarantining of about 16 of them, widespread opposition against the said Bill has morphed into an opposition against the Police’s arbitrary employment of quarantine regulations and a defence of the people’s right to engage in peaceful assembly and association. However, there is an ongoing debate as to whether the protesters in fact violated the quarantine regulations or whether they were arrested and sent to quarantine because the law enforcement authorities misinterpreted the regulations. In a context where there are more protests by activists on the cards, today’s Spotlight looks into the people’s right to engage in peaceful assembly and enjoy their freedom of expression and speech. The use of quarantine regulations Prominent private and unofficial bar lawyers association, the Bar Association of Sri Lanka (BASL), in a letter addressed to Director General of Health Services (DGHS) Dr. Asela Gunawardena and Inspector General of Police (IGP) Chandana D. Wickramaratne in this connection, said the quarantine regulations should not be misused to deal with the people exercising their constitutionally guaranteed rights. The BASL noted that public protests involve three important fundamental rights mentioned in the Constitution, namely the freedom of speech and expression, the freedom of peaceful assembly, and the freedom of association, which have been guaranteed by Articles 14(1)(a), 14(1)(b), and 14(1)(c), respectively, of the Constitution, and that public protests also strengthen the freedom of thought, which is entrenched as a fundamental right in Article 10 of the Constitution. The BASL observes that even though the rights under Article 14(1) may be restricted by law in the interests of public health, such restrictions must be done by law and must have a nexus to the objective sought to be achieved and also must be reasonable. Expressing its grave concerns over the arrests and detention of protestors by the Police, ostensibly for violating Covid-19 health regulations, the BASL added: “These arrests have been made subsequent to a press release by the Police Media Division bearing reference number PMD/PR/845/21, dated 6 July 2021, which purports to convey an extract from a letter bearing reference DDG (PHS)1/DO2/7/13/2017/20, sent by the DGHS to the Police. The date on which the said letter of the DGHS had been issued has not been disclosed. During the past few days, Sri Lanka Police carried out a number of arrests of persons engaged in peaceful protests on different issues and produced them before courts. The BASL has carefully perused the health guidelines issued by the DGHS, and the said guidelines permit several indoor and outdoor activities. These include, inter alia, the operation of spas, supermarkets, and restaurants, and they also allow the opening of liquor shops. The said guidelines have not listed public protests or outdoor meetings as prohibited activities.” Adding that the said press release, issued by the Police Media Division, had informed the media that the IGP has received a communication from the DGHS that public meetings and protests involving mass gatherings should not be permitted due to the risk of the spread of Covid-19, the BASL said that even the contents of the said press release do not contemplate a total prohibition of meetings and protests but only seeks to prevent meetings and protests involving a mass gathering of people, and that as such, meetings and protests that are carried out in compliance with the health guidelines are not prohibited. In a context where the DGHS has decided to ease the restrictions imposed previously, the BASL sees no reasonable cause whatsoever for the Police to act in a heavy-handed manner when dealing with protesters, the BASL said in its letter. “The BASL has taken note of several such instances and is deeply concerned as to how individuals, after having been granted bail, were forcibly seized from the precincts of the courts and were sent to quarantine against their will. There is scant evidence that such decisions were based on the advice of health officials such as the public health inspectors (PHIs).” Even though The Morning attempted to contact DGHS Dr. Gunawardena and Minister of Health Pavithra Wanniarachchi to inquire as to whether the health authorities were involved in the process of deciding to send the arrestees in question to quarantine centres, they were not reachable. Raising a concern many have raised in connection with the incident, the BASL said the arrestees were sent to be quarantined in a context where even persons infected with Covid-19 and their first contacts are allowed to be quarantined at their respective homes and hotels (hotel quarantine facilities) rather than being taken to quarantine centres. “Your attention is drawn to the regulations made by the Health Minister, published in the gazette extraordinary No. 2197/25, dated 15 October 2020, which is applicable to Covid-19 in terms of regulation 91 of the said regulations – ‘as quarantining necessarily relates to a person who has contracted the disease or is suspected to have contracted the disease and to no other, clearly, quarantine is a health precaution, and should not be used as a punishment or mode of detention’,” the BASL stressed, adding, therefore, that the said acts of forced detention in quarantine centres are arbitrary and unlawful, and are an affront to the Judiciary who have released the persons in question on bail. “Such arrests and forcible detentions have a negative effect on and undermine the genuine efforts that are being taken by the health authorities, the security forces, and the Police to combat Covid-19.” In addition, the BASL requested the DGHS not to allow the health guidelines to be abused in a manner which has a chilling effect on the freedom to dissent, and to hence take steps to ensure that the health regulations and guidelines are used only for the purpose that they were promulgated for, i.e. to curb the spread of Covid-19. Also, the BASL requested the IGP to direct police officers to refrain from arresting and detaining persons who are exercising their right to protest. “The BASL is alarmed at the increasing threat posed to the rights of individuals by the press releases and circulars issued by the Police under the guise of controlling the spread of Covid-19, and expresses concerns about ‘excessive force’ used by the Police in dealing with protesters.” Sri Lanka’s Constitution: Articles 14 and 15 As the BASL noted, Sri Lanka’s Constitution ensures the people’s right to expression and speech, and right to engage in peaceful protests. Section 1 of Article 14 of the Constitution says that every citizen is entitled to: a) The freedom of speech and expression including publication, b) the freedom of peaceful assembly, c) the freedom of association, and d) the freedom to form and join a trade union, among others. However, Article 15 describes the restrictions applicable to enjoying the rights specified under Article 14, and among them are that Section 2 on the exercise and operation of the fundamental right declared and recognised by Article 14(1)(a) shall be subject to such restrictions as may be prescribed by the law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation, or incitement to an offence; Section 3 on the exercise and operation of the fundamental right declared and recognised by Article 14(1)(b) being subject to such restrictions as may be prescribed by the law in the interests of racial and religious harmony; and Section 4 on the exercise and operation of the fundamental right declared and recognised by Article 14(1)(c) being subject to such restrictions as may be prescribed by the law in the interests of racial and religious harmony or national economy. The ‘Jana Gosha’ case Throughout the recent past, Sri Lanka’s court system has heard several cases which involved looking into the people’s fundamental right to engage in peaceful assembly and protest, and the 1992 Jana Gosha case takes a special place among them. The incident occurred when several political parties including the Sri Lanka Freedom Party (SLFP), which is a part of the incumbent Government, expressed their disapproval of the actions of the then Government based on several issues, including the rising cost of living, the privatisation of public enterprises, corruption and the waste of public funds, and several other social issues. The protesters had decided to launch a 15-minute protest composed of a noisy cacophony, which involved ringing bells, using the horns of motor vehicles, and beating drums, among other means – hence the term “Jana Gosha”. The case was based on a petition, through which the relevant petitioner claimed that he was obstructed by the respondents of the case when he was beating his drum as part of a protest and that his fundamental rights guaranteed by Article 14(1) were violated by the respondents’ act. The case was based on the petitioner’s right to exercise the said fundamental right. “There is ample authority that ‘speech and expression’ extend to forms of expression other than oral or verbal including placards; picketing; the wearing of black armbands; the burning of draft cards; the display of any flag, badge, banner, or device; the wearing of a jacket bearing a statement; etc.,” the Supreme Court judgement said. The verdict explained that regardless of the nature of the views expressed, they are still within the ambit of the freedom of expression and speech. “The Constitution demands the protection of the right to think as you will, and to speak as you think, subject to limitations which are inherent, as well as restrictions imposed by the law under Article 15. Subject to that, the expression of views, which may be unpopular, obnoxious, distasteful, or wrong, is nevertheless within the ambit of freedom of speech and expression, provided of course that there is no advocacy of, or incitement to, violence, or other illegal conduct.” Concluding that the petitioner’s fundamental rights, which are specified under Article 14(1)(a) of the Constitution, have been violated, the court said: “The right to support or to criticise governments and political parties, policies, and programmes is fundamental to the democratic way of life, and that the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.” This is not a borderline case or a sudden emergency in which a quick decision had to be taken. “If in fact a riot or violence had been anticipated, the Police would have known that they had to act when there was incitement to riot or violence, or actual violence. However, the second respondent acted when slogans were shouted against the government; not that he understood those slogans as an incitement to riot or violence, and not that there was a need to prevent any such breach of the peace or obstruction as is referred to in Section 78(1) of the Police Ordinance. It was thus a grave, deliberate, and unprovoked violation of the petitioner’s freedom of speech and expression, and I am of the view that the petitioner should be awarded compensation in a sum of Rs. 50,000. “Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day. Hence, the obligation cast upon this Court by Article 4(d) of the Constitution, to respect, secure, and advance fundamental rights, would amply justify the exercise of our power under Article 126(4) to give directions to the Police to ensure that they will respect the citizens fundamental right of speech and expression, and will not suppress peaceful protest. We trust, however, that the IGP will of his own volition issue appropriate directions and instructions to all Officers-In-Charge of police stations, that the criticism of the government, and of political parties and policies, is, per se, a permissible exercise of the freedom of speech and expression under Article 14(1)(a).” Politics Following the recent arrest and the controversial quarantining of the activists, including prominent education activist Ceylon Teachers’ Union (CTU) General Secretary Joseph Stalin, the Samagi Jana Balawegaya (SJB) filed several fundamental rights petitions in the Supreme Court against the Government’s decision. Their argument was that even if the DGHS may have issued new directives regarding the gathering of the people, if the protesters adhere to all Covid-19-related safety guidelines, including the wearing of masks and maintaining social distancing, they should be granted and are entitled to the freedom of launching a peaceful protest. In addition, the lack of or absence of the involvement of a health authority such as a PHIs when sending the arrestees to a quarantine facility was one of the main arguments raised by the Opposition to claim that the Police’s conduct was arbitrary and has nothing to do with the quarantine regulations. However, Minister of Public Security Sarath Weerasekera maintained that arrests will continue and those launching protests in violation of the quarantine regulations would be arrested and produced before court. “Even in the future, we will arrest anyone who engages in protests or public meetings, and will produce them in court irrespective of their social status,” he said in Parliament last week. However, another protest was held on Monday (12) by the Inter-University Students’ Federation (IUSF) and the Students’ Movement for Free Education at the Lipton Roundabout, demanding the protection of the right to protest, condemning the forced quarantine measures imposed by the State, and against the KDNU Bill due to its threats to free education and the potential militarisation of education. Interestingly, there were no arrests made at this protest. Earlier, some members of the Government such as Minister of Youth and Sports Namal Rajapaksa had questioned the Police’s conduct in arresting and sending protesters to quarantine centres. He also said the public (protesters) too had a responsibility. On Sunday (11), CTU General Secretary Stalin told The Morning that his fellow protestors and himself had not been provided clothing or proper food at Sri Lanka Navy’s Mullaitivu camp, where they are undergoing quarantine. “Minister Sarath Weerasekara said in Parliament that the people who were sent to quarantine were sent according to proper health recommendations. Those were lies! How could they make a health recommendation without even having been checked by a PHI? We were given toothpaste by a monk. We were not given any clothes. These people had to wear bed sheets since morning. The Police said everything they need is in the quarantine centre,” he said. “Minister Weerasekera says the Negombo Police gave us medicine. We were stopped at the Chilaw Police Station and given a quarter-loaf of bread and a banana. It was union members in the Mullaitivu area who bought us clothes. One of those arrested needed an inhaler, but the Negombo Police refused to get one, claiming that it cost Rs. 1,200,” he added. We cannot rule out the fact that even though quarantine regulations are a serious concern, the people have a right to express their approval or disapproval of the status quo. Any protest that does not violate the quarantine regulations should not be subjected to arrests or unnecessary quarantining, which, according to some who were critical about the matters, constituted the “excessive use of power”. Quarantine is not, and cannot be, a punishment, and in a context where the apex court has upheld the people’s right to protest as long as they do not pose a threat to the public, which in this case involves adhering to the Covid-19 safety guidelines, there is no reason to ban or restrict protests.