SC Denies Leave to Proceed with FR Claim in Magistrate Court Regarding GotaGoGama

A Supreme Court bench consisting of Justices BP Aluvihare PC, LTB Dehideniya and AHMD Nawaz last week dismissed a fundamental rights claim filed by a GotaGoGama activist to Galle Face, upholding the state’s right to uphold the law and order while facilitating citizens’ right to peaceful protest. .

Attorney Pulasthi Hewamanne appeared for the Petitioner and State Attorney Shaminda Wickrema appeared for the Respondents.

The fundamental rights claim had been filed by Nuzly Hameem, a civil engineer by profession. The petitioner named the Attorney General, the IGP, the Army Commander, the President’s Secretary and the Secretary of the Ministry of Defense as defendants.

In his petition, the petitioner listed the cases of violation and imminent violation of his fundamental rights enshrined in Articles 10, 11, 12(1), 12(2), 13(1), 13(4), 13(5 ), 14(1)(a), 14(1)(b), 14(1)(c), including those of freedom of peaceful assembly and expression, from the time of the Mirihana protest on 31 March 2022 until the declaration of a state of emergency and curfew, social media restrictions and police opening fire in Rambukkana. The applicant pleaded in favor of a declaration of violation of his fundamental rights and of an interim measure for,

Prevent respondents from:

(a) Interfering with any peaceful protest at GotaGoGama

(b) Take action to remove peaceful protesters and facilities from GotaGoGama

(c) Take any other action in accordance with the police complaint marked P6 to quell peaceful protests and

d) Order the IGP to indicate to the police that criticism of the government and of political parties and policies is itself an authorized exercise of freedom of speech and expression

The petitioner’s lawyer Pulasthi Hewamanne argued that due to several instances of violation of the fundamental rights of the petitioner and other protesters, the petitioner feared an imminent violation of his fundamental rights of peaceful protest, on the basis of a former provocative speech by then Prime Minister Mahinda Rajapaksa in early April. He said that just two hours after the application was filed on May 9, mob attacks took place in GotaGoGama, proving that his fear “had come true”.

He said he was informed that the police had filed a complaint with the Magistrates Court for an order to suppress or interfere with the protests in GotaGoGama, and therefore this fundamental request was filed to prevent an imminent violation of his fundamental rights (and other protesters). rights, including those of peaceful assembly and expression.

State Attorney Shaminda Wickrema, representing the defendants, denied the arguments and detailed the 29-page police complaint – P6. He said a police contingent of over 1,000 has been deployed to Galle Face since the protests began and that with the exception of the May 9 events which were not provoked by the police, the police had helped the demonstrators to move peacefully. demonstrate at GotaGoGama for more than 50 days.

He described the provisions of the “Joint Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies” as “the standard- gold” accepted worldwide. , in the Guidelines on Policing Protests, and that the police assisted protesters in GotaGoGama in accordance with these international standards.

He described the most relevant provisions of the joint report to which the police were linked during the Galle Face protests:

  • Paragraph 21: Freedom of peaceful assembly is a right and not a privilege and, as such, its exercise should not be subject to prior authorization by the authorities.
  • Paragraph 24: The State’s obligation to facilitate and protect assemblies includes simultaneous assemblies and counter-demonstrations, Assemblies… shall, to the extent possible, be facilitated to take place within sight and distance of their target.
  • Paragraph 25: The state’s obligation to facilitate extends to taking steps to protect those exercising their rights from violence or interference.
  • nParagraph 30: To comply with the principle of proportionality, any restriction (imposed on protests) must be appropriate to fulfill its protective function (and) it must also be the least intrusive instrument among those which could achieve the desired result.
  • Paragraph 33: Participants in assemblies are free to choose and express the content of their message.
  • Paragraph 34: “Time, place and manner” restrictions should never be used to undermine the message or expressive value of an assembly or to deter the exercise of the right to freedom of assembly.
  • Paragraph 38: Law enforcement and officials must take all reasonable steps to communicate with assembly organizers and/or assembly participants regarding the law enforcement operation and any safety or security measures, and help defuse tensions and prevent escalation.
  • Paragraph 40: The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and cleaning services.
  • Paragraph 41: In addition to the duty to facilitate, one of the main functions of law enforcement is to protect the safety and rights of those participating in assemblies, as well as observers and bystanders.
  • Paragraph 49(c): Public authorities, including law enforcement, must be able to demonstrate their attempts to engage meaningfully with assembly organizers and/or assembly participants

Citing the provisions above, Wickrema gave examples of how each provision had been fulfilled specifically, by police during Galle Face protests, since April 9. Wickrema stressed the importance of Colombo District’s senior police officer, DIG Chandrakumara, filing an affidavit and acting in accordance with these best practices. Notably, this is the first time a senior police officer has submitted an affidavit in a case of this nature.

Wickrema argued that the order sought from the trial court was simply to clear the entrance to the presidential secretariat so that staff and the public requiring the services of the secretariat could access the premises. He also argued that obstructing the entrance to a public building or public officials is a criminal offense that downgrades peaceful protest to criminality.

He said the defendants had no intention of dispersing or interfering with peaceful protests in GotaGoGama, even though there were specific and clear violations of criminal law, including unlawful assembly and offenses in under traffic laws. The state had opted to seek the intervention of the magistrate to manage the protests within legal parameters rather than arrest the protesters due to the severe hardships faced by the citizens of Sri Lanka already, as a last resort.

He asserted that the police were bound to respect the rights of citizens to peaceful assembly and that the responsibility of the state was not only to authorize but also to facilitate peaceful demonstrations.

He said protesters were allowed to use the entirety of Galle Face and the Green in front of Shangri-La for the protests, and the police complaint to the magistrates’ court sought an order to remove structures obstructing the entrance to the presidential palace. Secretariat. It has been argued that opening up the main entrance to the Secretariat might actually provide more visibility for protesters.

It was argued that illegality was an obstacle to a claim for fundamental rights. Wickrema pointed out that there were no imminent violations proven by the petitioner, that there was no connection between the body of the petition and the prayer, that some of the prayers perpetuated illegality and that a petition under fundamental rights could not be opposed to a court order. Numerous legal authorities have been cited, including the authority that “illegality and equity are not on good terms”.

The importance of minor legal aid to the management of the protests, as well as to the authorities to keep the protests within legal parameters, was underlined. Cases where this had not been done by the minor judiciary in the recent past have been provided to the Supreme Court.

He stated that this would benefit both the state and the protesters, stating that in fact the drop in participation in the protests, cited by the petitioner’s lawyer, could in fact be due to the illegal activities committed by some of the demonstrators without respect for the rule of law.

A request was eventually filed to deny leave to appeal and, in doing so, for the Supreme Court to also consider a directive that while the state should adhere to international best practices when handling protests, protesters must also respect the rule of law and refrain from illegal activities during a demonstration.

Considering the arguments of the petitioner and the respondents, the Supreme Court dismissed the petition. The police complaint in the Magistrates Court is due to be heard on June 13, 2022.