November 29th, 2021: The right to protest, as manifested in the freedom of assembly, association, and expression, is an important feature of a democratic society that facilitates civic engagement in political processes beyond just voting at elections. This right is vital for the healthy functioning of a democracy, and while it is recognized that the right to protest can be subjected to certain limitations, it is equally important to ensure that these limitations are not the results of ad-hoc and arbitrary measures contrary to the rule of law and the equal protection of the law as guaranteed by Article 12 of the Constitution.
Sri Lanka has a rich history of protests as means of airing grievances, and for demanding accountability and recognition for rights and freedoms. In the recent months, a large number of protests have taken place across the island, including but not limited to the many protests over the controversial Kotelawala National Defence University (KNDU) Bill, the fertilizer ban, and the ‘Pottuvil to Polikandy’ (P2P) march.
However, on 6th July 2021, the police announced that protests and public meetings were banned until further notice to contain the spread of COVID-19. The police further stated that transgressors will be dealt with according to quarantine regulations. Since then, there has been a host of arrests of persons for engaging in public protests, which stood in contrast with the relaxation of several regulations put in place to prevent the spread of Covid-19 in July.
On 9th November 2021, new regulations were introduced by way of Gazette (Extraordinary) No. 2253/10 to limit the size of public gatherings and make it mandatory to obtain prior approval of Director General of Health Services to hold gatherings, activities, events or similar places of meetings. Incidentally, the regulations were introduced days before the Samagi Jana Balawegaya (SJB) planned to hold a mass demonstration in Colombo. On 15th November, updated health guidelines applicable from the 16th to the 30th of November were also issued. It is notable that while indoor gatherings were among the permitted events mentioned in the schedule of the guidelines, “outdoor private gatherings” were not allowed to be held.
In his address to the nation on 20th August 2021, President Gotabaya Rajapaksa said that “[I]t is clear that this is not a time for strike actions and protests. Do not attempt to destabilize the country.” Similarly, insinuations were made by several others assigning blame to protesters for the recent surge in Covid-19 cases across the island. However, Professor Tissa Vitharana, a prominent virologist and Member of Parliament for the SLPP reportedly stated that there is no evidence to show that the recent protests contributed to the rapid spread of Covid-19.
The press release announcing the ban in July failed to establish the legal basis for the ban on protests and demonstrations, raising concerns about the legality of this measure.
Restriction of fundamental rights by way of issuing regulations has also raised similar concerns. Arrests and forcible quarantine of protesters, discussed later in the document, highlight instances of the misuse of quarantine regulations to quell dissent and enable arbitrary and selective action on the part of law enforcement authorities, with significant implications for rights and freedoms relating to assembly, association, and speech.
The Centre for Policy Alternatives (CPA) has consistently raised concerns regarding the legality of COVID-19 related restrictions, and despite this questionable legality, a considerable number of arrests have been made due to alleged violations.
Several guides, comments, and other documents were issued previously by CPA on a range of legal and policy issues linked to COVID-19. The present comment will briefly examine the limitations imposed on the right to peaceful protest under the guise of managing the health crisis, with a particular focus on the current ban on protests and public gatherings. The comment will first provide an overview of the constitutional and legal basis for the right to protest in Sri Lanka, followed by an outline of the state response to several protests that were held during the Covid-19 pandemic. The comment will then identify areas of concern by assessing the ban on protests based on three criteria relating to legality, proportionality, and purpose, to demonstrate that the state response to the recent protests has adverse implications for the rule of law, independence of the judiciary, and the fundamental rights of citizens.
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