A new form of suppressing liberty

Crime of ‘dissent’ and of murder

The killing of Roshen Shanaka Ratnasekara, a factory worker in the Free Trade Zone (FTZ), Katunayake, gives a signal to the country on how peaceful protesters would be dealt with.Those who are familiar with Police accountability will accept that Police cannot carry guns and ammunition, without accountability. The records of the Police must reveal as to who issued firearms and ammunition and who, in fact, ordered the Police to fire. The Police is required to make frank notes of their actions after they return to the station. However, all these come out only if a credible investigation is conducted.

Knowing the track record of governance in the country and impunity with which law enforcement and political authorities operate, there is hardly any genuine hope of such transparency in any investigation.

The purpose of this article is to briefly examine the legality of use of excessive force by law enforcement officers and the impact of the response of the Government on fundamental liberties of the citizens.

The issue on which the workers went on a protest was a legitimate demand affecting them. They challenged the proposed Pension Bill. This bill came into being without any discussion, at a time when the EPF fund is being used for questionable investments in share market. No wonder people have reservations.

There is no doubt that they had a legitimate Constitutional right of expression to object to the Government’s proposals. The Supreme Court had, in fact, given the green light to the bill. The Government with its two-thirds majority was confident of passing it through Parliament. Then came the workers’ protests centred on the main Katunayake FTZ.

With my own personal experience in and around this zone (where I associated myself for many years with a main women’s centre working towards unionisation of workers), I believe that the protests were spontaneous and were decisions of the workers themselves.

Contrary to what the Government says, I do not believe that they were manipulated by a political party or two. These workers were not initially unionised when FTZ was introduced but slowly they were. Suffice it to say that the workers in the FTZ are undoubtedly a legitimate group to raise their objections against the bill.

The protestors took to the streets and one assumes that this is a democracy. This is a usual form in legitimate protests involving workers all over the world. The motive of the crowd was abundantly clear – to have the Pension Bill withdrawn and to protect their savings against what they call “a robbery by the State”.

The TV footage and the eyewitness accounts appeared in some of the Sinhala newspapers clearly indicate that the protests were peaceful, until they were attacked by the Police. At one stage, the Police had broken open the gates and gone into the zone and attacked the unarmed workers mercilessly, when they were pleading.

An eyewitness account in another newspaper reveals the state of affairs: “We ran and hid as soon as we heard the noise, but the Police broke into our factory and pulled us out. They beat the boys and the women Police officers beat us. I was hit with a helmet.”

Then there was senseless firing from all over. Whom were they shooting at? Unarmed and unplanned workers who were agitating against the bill. Many protesters received gunshot injuries while hundreds of others, mainly women, received injuries and were admitted to hospitals.

One newspaper reported that some of the injured did not want to be admitted to hospitals close by in fear of arrest and they chose to go to their far away villages, so that they would avoid repercussions.

Let me say in no uncertain terms that the use of firearms by law enforcement is a matter of International Law now. For example, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Basic Principles) provide, in Principle 9, that firearms must not be used against persons except in self-defence or defence of others against the imminent threat of death or serious injury and only when less extreme means are insufficient to achieve these objectives.

The Principles explicitly provide that, in dealing with assemblies where people are using violence, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary and only under the conditions stipulated in Principle 9. Any other use of firearms is unjustified. Judging from the eye witness accounts appeared in media, there was no justification whatsoever to use firearms in this instance at Katunayake.

The legal position, as introduced by the Police Ordinance, Penal Code, Police Departmental Orders and practices in Sri Lanka is, in fact, compatible with the international standards, where the Police can use firearms only as a use of minimum force to prevent a crime or in self defence. To my recollection, the weapons used are also required to be examined and detailed notes kept for inspection thereafter. Let us hope that these rules are practiced by Police.

Though the confidential notes of the Police officers are yet unknown, it is clear that there were “over preparation” by Police for “some reason”. This fact is borne out from the fact that there were a large number of high ranking officers including DIGs present in the vicinity.

From crime to cover-up through propaganda and extra-judicial actions

Following its usual technique, the Government resorted to its infamous and confident propaganda mechanism to cover up. No doubt they would have taken many decisions at political level. The first decision seems to be to get the IGP to go on “leave prior to retirement” – just one week before his actual date of retirement. (I am not surprised if he is later appointed as a commissioner of one of the commissions or as an ambassador.)

Then, there was an effective move to prevent information leaking from hospitals of the conditions of the patients. Many were prevented from even entering hospitals to see patients. Then there was a statement from the Government blaming the JVP for the incident. The usual “conspiracy theory” came next.

Then came the news of the death of this young victim due to gunshot injuries. The TV coverage of the State media and the news items and political discussion programmes over the State media (not to mention the controlled private media), both print and electronic, made a herculean task to cover up the overall State responsibility.

Payments of millions to the victim’s family and the Government’s decision to withdraw the controversial bill dominated State media. Not to forget that there is, according to the Government, a top level Police investigation to ascertain whether “outsiders” have infiltrated into the Free Trade Zone.

Passing the buck to another is a clearly visible strategy. Let me quote the first line of the editorial of the Government’s leading English Sunday paper: “The Janatha Vimukthi Peramuna (JVP) has proved yet again that it has more faith in the bullet than in the ballot…”

Generally, the Government’s motives in a situation like this can be easily judged from its responses. Similarly, inferences can also be drawn on the Government’s bona fides from its behaviour.

Obviously the Government was worried with the series of protest rallies organised by trade unions, civil society groups and political parties and the crowds attending the rallies. At one point, there were announcements in Katunayake with loudspeakers announcing that the Katunayake zone was closed and requesting the workers (most of whom are boarders) to go home until further notice.

Many of those rallies held could not be obstructed firstly, because they were not organised by political parties and secondly, because they were spontaneous. The biggest rally, however, was organised by the JVP on Friday at Lipton Circus, Town Hall and the Government’s performance was the most visible there!

Police and Army were strategically placed, while bus loads of thugs (armed with clubs) were awaiting orders to attack the peaceful protesters. It is no secret that those thugs were brought by an MP, who is the “monitoring MP” to the Ministry of Defence and that those thugs were given protection by the Police.

I was not at all surprised with the statement of Police Media Spokesman SSP Prishanthe Jayakody, who said that “there are no restrictions for people to walk along the road carrying poles as a person armed with a pole could hit a dog if it tries to attack him” (‘Lanka Truth’ website quoting the spokesman).

What would be the response of the Police Spokesman if the FTZ workers had a few clubs in their hands? This just shows the level to which professionalism has gone down! We saw a similar crowd of armed thugs with clubs attacking unarmed civil protestors a year ago near the Supreme Court but no effective action was taken by Police against the identified offenders even then.

There were also credible information and news items in newspapers that a large number of posters pasted by many groups led by the JVP condemning the attack were taken into custody by Police/Army the day prior to the funeral. This is a certainly a counter measure to control the political criticism of the Government. Suffice it to say that this should not be the function of the law enforcement officers.

Funeral and State capture

Probably the most stunning operation of the Government was the “funeral” of the deceased itself. A democratic society must, I repeat MUST, not forget what happened at the funeral particularly because this may be the order of the day in time to come.

State media coverage of the funeral was no different to the coverage of the war. It was only State sponsored and one-sided news. Inexplicable military presence – thousands of them – raises the question whether it was the funeral of a terrorist leader. There was no doubt that the Government had taken all measures to prevent disturbances but whether a Government has any right to meddle with a private funeral to that extent is doubtful. I heard many saying it was a well-planned “psychological operation” (which term I am not very sure)!

One could not move without bumping on to a military person; or talk without someone approaching to listen to the conversation. People were disheartened to be there, to pay respect to the victim of a crime of the State. Newspapers reported that there was a Magistrate’s Court order placing restrictions on how to conduct funeral proceedings.

I am yet to understand the relevant provisions which give a Magistrate the power to control a funeral. Usually, the Magistrate has power under the Criminal Procedure Code to conduct an inquest and the Magistrate holding the inquest to make consequential orders such as visits to crime scene, pronouncing on apparent cause of death and to release the body to a family members, etc. The judge or the coroner may give directions not to cremate the bodies or to bury in an identified burial ground.

Nor can I recall an instance where there was a court order limiting the number of speeches at a funeral and how and where to carry the body. Let us hope that there is a serious academic discussion on the legality of the Magisterial Order.

Overall operations of the Government to control the funeral seem to have had at least two short-term objectives – firstly to prevent an event that can challenge the Government’s authority and secondly, to control freedom of expression at the funeral. Nevertheless, the outcome was an unusual ‘captive State funeral’ – a new lesson to learn from Sri Lanka: ‘We kill you and then bury in our own style.’

With what we heard and saw at the funeral, the role played by the Church (in particular, the Parish Priest) is a matter of concern. This is very unusual for the Church, which has maintained a good record of its integrity. Who is benefited from such an intervention of the Church? A story of a family member giving an affidavit cannot justify a State capture of a funeral of this nature. The support of the Parish Priest or a Church does not erase an immoral and impious conduct.

Intolerance and overstepping powers to stifle dissent

The law enforcement functions in Sri Lanka have been so politicised that any unlawful action of the Government can easily be justified with impunity. The other intricacy is the law enforcement has now been mixed with military action, just like in Syria, Egypt and Libya. This combination is certainly not conducive to a democracy which recognises a clear distinction between military action and Police action.

The continuous emergency situation and counter terrorist measures taken by successive governments have created a different psyche among the law enforcement officers. This I believe can be addressed. However, the abuse of authority by political masters under the cover of such emergency situations cannot be overcome so easily – because they believe that they have “majority power”. And they have a vested interest.

Perhaps the Government would attempt to justify the use of firearms due to possible political instability that can be created in the strikes and the wave of protests on the Pension Bill. This is not acceptable in a democracy. According to the UN Principles on use of firearms, “Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.”

According to the UN Basic Principles, governments are obliged to ensure that arbitrary or abusive use of force and firearms by law enforcement officials is treated as a criminal offence under the law. The Basic Principles also note that the government and law enforcement agencies must ensure that superior officers be held responsible if they know, or should have known, that law enforcement officials under their command are resorting to unlawful use of force and firearms and they did not take all measures in their power to prevent, suppress or report such use.

The law on illegal orders and right to disregard unlawful orders are very clear on national and international law. Sri Lankans cannot forget the famous Kataragama Beauty Queen murder case (Wijesuriya v. Queen 77 NLR 25), where the Court of Criminal Appeal of Sri Lanka held that it is no defence to plead “superior order” in committing a murder.

In that case, the Army officer shot and killed the detainee on the orders of the superior officer. Any law enforcement officer knows that it is illegal to kill a detainee. As decided in this case, under Section 100 of the Army Act, every person subject to military law is required to obey only lawful commands (and not unlawful orders). This legal position is equally applicable to the Police as well.

International criminal law is no different. Let me reproduce the UN Basic Principle 26: “Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.”

One can argue that the motive of the officer who fired at the crowd is not very clear. However, the motive of those who gave orders cannot be so unclear. Judging from the events leading to the killing and the past conduct of the Government, one can easily conclude that it was basically to control public dissent.

The public (including the trade unions and workers) have a duty to express their views by holding protest rallies or any mode of expression. Before winding up this article, I wish to advert to a clear Constitutional principle that is relevant here. The State does not have the authority to make criminal peaceful expression of unpopular views and to deal with protestors like criminals.

Let me conclude by quoting Justice Brandeis (Whitney v. California) on the constitutional importance of freedom of speech and expression: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They value liberty to both as an end and as a means… they believe that freedom to think as you will and to speak as you think are means indispensable to the discovery and the spread of political truth; that without free speech and assembly, discussion would be futile… that the greatest menace to freedom is an inert people; that the public discussion is a political duty and that this should be a fundamental principle...”

I sincerely hope that our leaders and the readers will read and re-read the following paragraph of the same judgment of this great judge, Justice Brandeis: “Those who won our independence were not cowards. They did not fear political changes... Fear of serious injury cannot justify suppression of free speech.”