COVID-19 and the right to peaceful protest

The Bar Association of Sri Lanka (BASL) has quite correctly responded to news reports that magistrates were instructed to use certain sections of the Criminal Procedure Code to control public gatherings considering the COVID-19 situation in the country. The BASL has flagged concerns arising from the alleged contents of the seminar, and its impact on the independence of the Judiciary and the rule of law.

On 13 August, magistrates serving in all districts of the country were mandated to attend a seminar conducted by the Sri Lanka Judges Institute in Colombo by the Judicial Service Commission (JSC). News reports emerged soon after the seminar, reflecting the shock and dismay of magistrates in attendance, after they were urged to use Sections 98 and 106 of the Criminal Procedure Code to control public gatherings and demonstrations. The reports said magistrates had noted that it was the first time in their judicial careers that a meeting with the JSC had resulted in an impression that magistrates should “follow those instructions rather than applying their judicial mind”.

On Tuesday (17), BASL President Saliya Peiris PC wrote to Chief Justice Jayantha Jayasuriya in his capacity as Chairman of the JSC regarding the seminar titled ‘Matters relating to judicial proceedings in the context of the COVID-19 Pandemic’. The BASL letter noted that the seminar had included the participation of non-judicial personnel including at least one official whose administrative orders and decisions form part of the matters that are currently under judicial consideration in several cases pending before courts.

The BASL President emphasised that while building awareness among judicial officers about the need to ensure the courts are administered according to health guidelines was welcome, the contents of such a meeting should not leave the impression, “either in the mind of the participating judges or the public, that it has any bearing on the manner of the discharge of judicial functions or that it was intended to have the effect of stifling any judicial officer from the independent exercise of his or her judicial mind and discretion”.

BASL has urged the JSC to address the impression that has already been created that the meeting had been conducted to impress upon judges to make “particular orders in a particular matter” and called for a correction of that impression.

The instructions, if indeed they were issued to magistrates, come in the wake of a spate of protests against the ruling Government – 847 according to a count by at least one Government minister – against fuel price hikes, the Kotalawela National Defence University Bill, the agrochemical ban and the X-Press Pearl ecological disaster. The Government has spent the past two weeks attempting to build the narrative that these demonstrations were directly linked to the massive spike in COVID-19 cases in the country, rather than admitting its own mismanagement of the public health crisis that has now cost over 6,000 Sri Lankan lives. The contents of last Friday’s seminar for judicial officers were interpreted as a fresh attempt to co-opt lower court judges into an effort to suppress public protest in the guise of controlling the spread of the coronavirus, and a direct assault on judicial independence.

Three days after the seminar, when FSP Propaganda Secretary Pubudu Jagoda’s case came up in her courtroom on Tuesday (17) Additional Magistrate for Colombo Lochana Abeywickrema proclaimed in open court that no quarantine law to curb the spread of COVID-19 could be used to quash the people’s constitutional right to free speech and peaceful protest. Jagoda was arrested by the Muttuwal police for organising a protest by fisher-folk in the area, whose livelihoods were badly affected by the MV X-Press Pearl disaster. Those rights guaranteed by the Constitution of Sri Lanka were sacrosanct, the Additional Magistrate noted, urging the police not to use laws to control the spread of COVID-19 to impinge on the people’s fundamental rights. It was as resounding a response from a magistrate as any, to the events that allegedly transpired at the Judges Institute seminar last Friday, and a hopeful sign that irrespective of nudging, the courts of first instance will continue to defend the citizens’ fundamental rights to criticize and challenge their rulers.