Judicial intervention to control lawful rallies?

Basic liberties cannot be taken away by any state organ

Let me begin this article with the following often quoted words, worth reading and digesting: “The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries. In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect” – Jimmy Carter, Dallas-Times Herald, April 26, 1978.

When court orders are frequently obtained by the police to restrain lawful protests and meetings, the public begin to wonder whether there is any legal basis for such actions, particularly when the Constitution guarantees freedom of association and freedom of speech.

From colonial days until recently Sri Lanka has not seen the police making such unusual applications to courts to prevent mass protests, processions, strikes or peaceful meetings through judicial orders. This article is intended to examine some of the key legal provisions in this regards.

Article 14 of our Constitution recognises the citizen’s right to freedom of speech and expression, freedom of peaceful assembly and freedom of association. However, this right can be restricted in terms of the Constitution, through a particular legal mechanism.

Firstly there must be a law passed, restraining such rights and secondly, such law must be for a specific purpose such as “in the interest of racial or religious harmony, in the national interest, morality and for the purpose of securing due recognition of the rights and freedoms of others,” as stipulated in Article 15 of the Constitution. Each of such rights is subject to corresponding restrictions.

For example, freedom of speech is subject to restrictions such as contempt of court, defamation, parliamentary privileges and incitement to an offence. Our Supreme Court, time and again, has emphasised that there cannot be a restriction of any such rights without passing a law for that purpose or without acting under an existing law. Mere administrative or executive decisions are inadequate!

Article 14(1)(b) recognises freedom of peaceful assembly, and, in fact, this is a right that is recognised together with freedom of speech as a basic liberty guaranteed to the citizens to engage in political, social, artistic and various other non-criminal activities. Basically, these rights are exercised by all democracies to engage in participatory activities such as political dissents and challenging undemocratic actions of lawfully elected governments.

We cannot forget one basic principle in democracy i.e. that citizens in a country do not surrender all aspects of their sovereignty/supremacy at an election. True enough they elect their political leaders for a definite term but they retain with themselves their inherent right to engage in direct and participatory democracy. This is not a right any organ of the state, be it the Executive, Legislature or Judiciary, can ever take away from the people!

Let us not forget that processions, public assemblies and meetings are held all over the world in public places. These activities are respected by all organs of the state so long as they are peaceful. It is however not unusual for countries to regulate these assemblies for valid reasons provided they are regulated by specific laws. The regulation of those meetings, processions and assemblies are not purely left to the discretion of the Executive or the Judiciary.

In countries requiring prior permission for street demonstrations, there are safeguards against discriminatory exercise of these rights by law enforcement officers. Based on international legal literature one can argue that all such countries, if they are parties to the International Covenant on Civil and Political Rights, are required to ensure access to public space, (b) protection of the rally and (c) protection from hostile audience. Not mere regulations to control political rallies organised by opposition parties and groups.

The point I am driving at is that presently there is no specific detailed legal provisions regulating these types of meetings, demonstrations and processions in Sri Lanka and therefore, there is no justification for law enforcement officers to move for the court to introduce such restrictions in respect or identified rallies.

In fact, many governments seek to justify restricting freedom of expression and assembly, on the basis of protection of others. “Freedoms of others are seriously affected, unless freedom of assembly is regulated or restricted”, they will say.

We should then remind ourselves of the great words of Justice Brandeis: “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.”

A live case study – Application to prevent Black January protest

How come then the Police have sought orders from Magistrate Courts to stop lawful meetings? These issues cannot be answered without taking practical examples. Let me deal with one.

On 24 January 2012, the Officer in Charge of Fort Police Station filed a report in the Fort Magistrate’s, stating that the OIC (Intelligence) of the Police station had received information that an organisation called “Platform for Freedom” has organised a rally on 25 January, bringing in over 5,000 people and planning to obstruct the road and to walk to the Temple Trees!

Based on this information, the Police had sought orders from court under Sections 95 and 98(1)(a) of the Code of Criminal Procedure read with Section 106 to prevent the agitation/rally. The Magistrate, having considered this report and submissions made by the Police, without hearing affected parties, had issued an order directing that the agitation (protest) be limited to the Fort Railway Station premises and preventing the crowd from blocking the road or walking to the Temple Trees.

The Magistrate had also directed that the orders issued by the Court be handed over to three persons (Brito Fernando, Sunny [sic] Jayasekera and Dharmasiri Lankapeli) described in the report as ‘Conveners of the Platform for Freedom’. On 27 January 2012, again the OIC of Fort Police Station has filed another report stating that having regard to the order made by the Court, no such crowd convened and no breach of peace was reported. Based on this report, the case was laid by.

Apart from the legal issues, I can say without any hesitation, that the Police had deliberately misled the Magistrate on reporting facts in this instance. Let me give at least four reasons:

(a)    I am one of the conveners of the Platform for Freedom and this organisation never organised a rally or meeting on 25 January 2012. The rest of the conveners of this organisation are Brito Fernando, P. Saravanamuttu, Nimalka Fernando and Sudharshana Gunawardana. Police Intelligence Units of the country cannot be ignorant of that fact and reference to the Platform for Freedom is a complete distortion of facts. What is more plausible is that police intelligence units and secret services are taking things for granted, because people and authorities do take their world too seriously and they can easily deceive anyone for ulterior motives. Worse, when intelligence services are directly under politicians.

(b)    The posters and publicity given in media for weeks would have sufficiently revealed that the media organisations have organised a protest rally on 25 January afternoon opposite the Fort Railway Station (Black January) to condemn the continuous harassments meted out against media. This fact was not brought to the notice of the Judge.

(c)    On 25 January, the organisers of the protest had shifted the venue to Lipton Circus mainly because groups of armed thugs were deployed near the Fort Railway station to attack the protesters. They had conducted themselves in a violent manner causing breach of peace, in the presence of Police. This fact was never reported to the Magistrate on 27 January

(d)    The application was made by the police ex-parte and orders were obtained ex-parte. The Judge had ordered the service of his order on the three names mentioned but the police had not effected such service of the order.

For the purpose of clarity, we need to at least understand what those legal provisions in the Criminal Procedure Code are. Let me briefly set out the summary of those provisions:

Section 95 deals with unlawful assemblies. Where such an assembly is in progress, the Magistrate or a Police officer above the rank of an Inspector can command such an assembly to disperse. If the crowd does not obey, then use of force is permitted, but the military cannot be used. The military can be called in only if the crowd cannot still be controlled. This section can, therefore, be invoked only when such an assembly is in progress and therefore, the Magistrate could not have made any order one day before the scheduled meeting.

Section 98(1) deals with a totally different legal concept, i.e. public nuisances. When the Magistrate receives a report or evidence that there is an unlawful obstruction or nuisance to any “way (road), harbour, lake, river or channel [or other specified instances such as construction of buildings or excavations etc.]”, a conditional order may be issued by the magistrate requiring such person to “remove, suppress or alter” such obstructions. This is also intended, in my opinion, to remove an existing obstruction. This does not deal with a moving procession or a meeting, rather a nuisance that is created by way of prolusion, obstructive construction or any similar instance.

Section 106 gives the Magistrate the power to issue “absolute orders in urgent cases of nuisance”. This provisions is used when the “Magistrate considers that such direction is likely to prevent or tends to prevent obstruction, annoyance, or injury to any person or human life, health or safety or a riot or an affray.”

The judicial decision in this regard suggests that these provisions are used in certain generic and standard activities involving public nuisance, not involving civil liberties. For example, continuous publication of defamatory articles in newspapers might cause annoyance to a person or a group of persons but that does not attract this legal provision.

In view of these basic legal provisions, I wonder how a police officer seeks these orders from a Magistrate. We are conscious of the fact that Magistrates are under tremendous work pressure (due to the heavy load of work) and therefore, not much time could probably be spent by a Magistrate on an ex parte application made by the Police.

On the other hand, the criminal justice system requires the Police to act with utmost honesty with the court and therefore, the magistrates are taking the applications of the police officers seriously. I do not blame the judges for not carefully analysing the law in this instance because of two reasons - firstly, the police are making these unusual applications ex parte and therefore not much assistance is given to the court by any Counsel appearing for the affected parties.

Secondly, not all judges in the lower court do have much of judicial experience resolving issues relating to civil liberties, though they do deal with them move than higher courts. Of course, there are some judges who do not fall into traps and therefore, do not allow these applications for the sake of asking.

In my view there is no sufficient judicial education or awareness on protection of constitutional rights and civil liberties. This becomes aggravated with the criminal lawyers not having exposure to the area of civil liberties. This is certainly a contributory reason for the failure to detect “seemingly harmless” applications by the Police to control meetings and stop lawful assemblies, etc.

Let us not forget that Article 4(d) of the Constitution requires all organs of the state, including the courts to “respect, secure and advance” fundamental rights recognised by the Constitution. Notwithstanding this, judges and lawyers alike must remind themselves that “a judge must bear in mind that when he tries a case he is himself on trial” – (Philo, Special Laws, 1st century).

Ignoring Police ordinance and Police Departmental orders?

It is quite clear that if there is an unlawful assembly, the Police could always intervene and even proceed to arrest the participants of such an assembly. Two sections of the Police Ordinance and two Police Departmental Orders are directly relevant for this.

Section 56 of the Police Ordinance gives the basic answer to this question. In terms of this legal provision, “Every Police officer shall, for all purposes in Police Ordinance contained, be considered to be always on duty, and shall have the powers of a Police officer in every part of Sri Lanka. It shall be his duty

(a) to use his best endeavours and ability to prevent all crimes, offences and, public nuisance;

(b) to preserve the peace;

(c ) to apprehend disorderly and suspicious characters

(e)    To detect and bring offenders to justice…....”

Section 77 of the Police Ordinance requires the organiser of a procession to give notice of a meeting to the police. The purpose of this notice, as understood correctly and articulated in the Police Departmental Order E-5, is as follows: “There is no requirement in law that a person or persons taking out a public procession should obtain a permit from the police to do so…… this provision is made in order to enable the Superintendent or Assistant Superintended in charge of the area in which the Police Station is to consider whether the provision is likely to occasion a breach of the peace or disturbance of public order.”

Section 77(3) also permit a police officer above the rank of ASP, if he thinks it is expedient to do so in the preservation of public order, may give directions prohibiting the taking out of any procession and imposing upon the organisers such conditions as appear to him to be necessary. Again, as articulated in the Police Departmental Order E-5, “the only reason which will justify a police officer in prohibiting a procession will be the consideration that it is necessary to do so in the interest of the preservation of public order”. Nothing else! There are no provisions in the Departmental orders or the Police Ordinance that require the police officer to obtain orders from Magistrate to prohibit processions. Furthermore, in law the decision of the ASP cannot be substituted with that of a Magistrate.

Police Departmental Order A-19 is another relevant provision guiding all police officers. This Order guides the Police how to disperse the crowds and use of force. This also recognises that an unlawful assembly (not lawful assemblies) which is not actually committing or attempting to commit any crimes laid down in “Police Firing Orders,” can only be dispersed by special orders, which can be given both by a Magistrate and a Police officer in the rank of inspector and above. However these powers cannot be used in respect of peaceful rallies.

These provisions amply demonstrate that police do not require a Magistrate’s direction or order to perform their duties. It must also be remembered that the Police cannot intervene in a peaceful or lawful assembly under these provisions. However, the above provisions of the Police Ordinance read with Article 4(d) of the Constitution places a duty on the Police to intervene and prevent when armed thugs and hostile crowds disturbs lawful meeting, rallies and demonstrations. Why they do not exercise their authority to protect political rallies and peaceful assemblies is an indication of how politicised the Police is today.

If the Police have powers to control unlawful assemblies, then why are the Police seeking orders from the Magistrate? I have three possible answers to offer but there may be more.

Firstly, if the Police disperse lawful meetings, there is a likelihood of a fundamental rights application being filed against the Police. In Sri Lanka, the fundamental rights can be filed only in respect of executive or administrative decisions – and not against judicial decisions. Therefore, this is a possible move by the Police to take refuge under a judicial order for what they cannot do otherwise.

Secondly, there may be a brilliant police officer who has innovated “a new procedure” to obtain judicial orders to prevent all lawful rallies based solely on police reports. However, there is no information on whether such an officer is recognised by the IGP and commended.

Thirdly, there can be corrupt or weak Police officers who want to please the political masters who are afraid of dissenting voices and these applications are made for the asking. Having regard to the present status of governance, the Police has become another institution ruined and weakened by politicians. These are the guys who can manipulate information falsely and say there are intelligence reports for anything to support the higher ups.

Let us, therefore, hope that there will not be a repetition of unlawful restraint of lawful assemblies and meetings in Sri Lanka. Let us not forget the great freedom fighter’s words: “We who in engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive” – Martin Luther King, Jr.

(The writer is a Constitutional Lawyer, former Executive Director of Transparency International Sri Lanka, Eisenhower Fellow and Senior Ashoka Fellow.)