Sunday Times 2
Aragalaya’s Fundamental Right farce: When lawyers distort facts
View(s):By H.R.H. Amarasinghe, Convenor, Citizens Collective for Law and Order
In July, Sri Lanka went through one of the most turbulent chapters of its post-independence era with the departure and resignation of its President, the election of a new President by Parliament, and the takeover of the President’s House, the Secretariat, the Prime Minister’s office and residence by Protestors, the attack on the Speaker’s Residence, the takeover of Rupavahini and the burning of the Prime Ministers private residence.
Only the parliament building was left and the first step to that was the attack on the Speaker’s residence. The country was nose-diving into anarchy at a time when the IMF and donor countries had stipulated that political stability was a sine qua non to grant financial aid to Sri Lanka. It was a time when responsible political, religious, civil society, media and business leaders should have called for restraint, counselled citizens to remain calm and not engage in illegal and disruptive acts. Instead, most chose to remain silent. It demonstrated how threadbare the moral fabric of Sri Lankan society is.
But if the silence was bad what came after was worse. For this was the gross misrepresentation of fact and law by lawyers and fundamental rights activists indulged in a bid to discredit the country and the President in the eyes of the world. Following the eviction of protestors who had forcibly entered the Presidential Secretariat and continued to prevent its functioning, they attempted to paint a picture of a country where police brutality was the order of the day.
THE FACTS
As at July 22, there were three separate and distinct sections of the Aragalaya in the area referred to as Galle Face which generally covers the area from Galle Face Hotel to Kingsbury Hotel and the Lighthouse.
1) Galle Face Green
The Aragalaya began in April on the Galle Face Green. This was a peaceful protest which was gradually infiltrated by various groups and eventually hijacked by violent groups who had motivation going beyond protesting against the suffering inflicted on the masses by a corrupt Rajapaksa regime and demanding a solution to their problems.
2. Bandaranaike Statue
This area by the entrance to the Presidential Secretariat had stalls erected around the statue. As this obstructed the movement of people and vehicles to and from the Presidential Secretariat, the police obtained a Court Order on July 20 prohibiting any gathering or structure in an area of 50 meters around the Bandaranaike statue.
3. Presidential Secretariat
This building was occupied forcibly by Protestors from July 9 when they broke through the barricades erected by the police and gained entry after Gotabaya Rajapaksa had left the country. They also entered the President’s House, Temple Trees and the Prime Minister’s Office, overpowering the Police guarding these state buildings.
The occupation of the Presidential Secretariat by protesters: A fact that was left out in the statements issued by Aragalaya lawyers and human rights groups
The original protest site was the Galle Face Green which was where peaceful protestors had gathered. However, after July 9, protestors had taken over the Presidential Secretariat even though the objective of their protest #Gotagohome had been achieved.
These locations were distinct and separate from each other due to the widely differing nature of the sites and the purposes they were used for. The Galle Face Green could be considered a public space often used to stage peaceful protests. The Bandaranaike statue and the Presidential Secretariat were on the opposite side of the Green across Galle Road next to each other. Anyone attempting to lump these three locations together and create the impression that it was one site is guilty of a gross misrepresentation of fact designed to deliberately mislead the public.
THE LAW
What are Fundamental Rights?
Fundamental rights are the basic rights of an individual to live life with safety and security. They are guaranteed to all citizens and enshrined in the Constitutions of democracies and are enforceable by law.
The Covenant on Civil and Political Rights, the UN Human Rights Declaration and the European Charter are some documents that guarantee the freedom of expression and freedom of peaceful assembly. However, it should be noted that these freedoms are not absolute but subject to restrictions.
The Sri Lankan Constitution states as follows :
Article 14(1) – Every citizen is entitled to
(a) the freedom of speech and expression including publication
(b) the freedom of peaceful assembly
(c) the freedom of association
These freedoms are subject to the following restrictions.
“Article 15(7) – The exercise and operation of all the Fundamental Rights declared and recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order, the protection of public health and morality or for the purpose of securing due respect and recognition for the rights and freedoms of others or of meeting the just requirements of the general welfare of a democratic society. For the purposes of this paragraph, “law” includes regulations made under the law for the time being relating to public security.”
It is clear that there is no absolute Fundamental Right that people can exercise regardless of other citizens or the welfare of the State. The Fundamental Right of a citizen to protest is under no condition unlimited and unfettered. In countries where the Rule of Law prevails, this right is strictly confined to a PEACEFUL protest.
What is considered a PEACEFUL protest by law?
The International Covenant on Civil and Political Rights Article 21 states as follows:
“The right of peaceful assembly shall be recognized. No restrictions may be placed on this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health and morals or the protection of the rights and freedoms of others.”
Forcible entry and occupation of the office of a Head of State would not be considered a peaceful protest under any circumstances according to the law on fundamental rights and peaceful assembly. The Presidential Secretariat was vital for the smooth functioning of the State. This occupation was detrimental to national security and public order and was in violation of the rights and freedoms of public servants to carry out their duties.
The US and the UK have introduced legislation to specify various aspects of these rights while having judicial interpretations of the nature and scope of the exercise of these rights.
In the UK, two landmark judgments have held that the right to a peaceful protest has to be exercised in conjunction with the rights of others. The judgments in the cases of Mayor of London vs Hall (Parliament Square) and Mayor Commonality and Citizens of London vs Samede (St Paul’s) established the position in respect of public land and protest camps. It was held that
“While protestors’ Article 10 and 11 Rights are engaged it is very difficult to see how they can prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and convention rights of others and causing other problems.”
According to the Public Order Act 1986, the police have a right to limit the exercise of the right to protest if there is a breach of the peace. The Police, Crime, Sentencing and Courts Act 2022 has introduced a number of measures to address the disruption caused by Protestors and allows the police to impose any type of condition on a public assembly to prevent serious disorder; serious damage to property; serious disruption to the life of the community. Protests and demonstrations in the Controlled Area of the Palace of Westminster and Parliament Square are not permitted at any time.
This has been done taking into consideration the importance of all arms of government being able to function smoothly. The UK government’s stand on this has been clearly stated by Home Minister Preeti Patel.
“We do not make policy by mob rule in this country “
In the US, the position on the occupation of public buildings is best set out by the Freedom Forum Institute analysis wherein to the question “Do we have an unfettered right to occupy public Buildings?” it answers “No”. The government can limit such protests depending on several factors. Firstly violent protests are outlawed anywhere. The text of the First Amendment provides for “the right of the people to peaceably assemble”. The key word is “peaceably “– violent protesting is not allowed.”
……”the right to protest is often affected by the location and purpose of the government property where the protest takes place.”
In the landmark case US vs Kokinda, the Supreme Court ruled that “the government’s ownership of property does not automatically open that property to the public.”
According to the FFI analysis “government officials could limit protests inside a courthouse because the government has important operations to conduct. It must be able to control its operations to carry out its functions. The government must be able to carry on its own speech and expression free from interference”
Surrounding private residences is not considered peaceful protest and is banned in most areas of the US.
The current trend in the west is to have designated protest sites where people can exercise their freedom of expression and peaceful assembly without infringing on the rights of others to move freely and engage in their activities without interruption.
APPLICATION OF THE LAW TO THE FACTS
As noted above there were three distinct and separate locations
1. Galle Face Green
The original site where the Aragalaya started and was considered the designated protest site was not attacked by the security forces. In fact, video footage is available of Police asking those occupying the Presidential Secretariat to move to the Galle Face Green as occupying the Secretariat was an offence. The two major independent news channels, Derana and Hiru, while giving extensive coverage to this event refer to the Presidential Secretariat being cleared of occupants. There is no mention of protestors on the green being attacked.
However, references have been made consistently and continuously by lawyers and civil rights activists to peaceful protestors being attacked or the protest site on the Galle Face Green being attacked. The Galle Face Green was the only site where protestors could have been considered peaceful and references to peaceful protestors being attacked were designed to deliberately create the impression that it was those on the green who were evicted and therefore there had been a violation of their Fundamental Rights.
2. Bandaranaike Statue
By erecting tents and occupying this area, protestors were able to impede movement to and from the Presidential Secretariat thereby obstructing public servants from discharging their duties. As requests to clear this area had been ignored, the Police on July 20 obtained a Court Order prohibiting the obstruction of 50 metres around this statue. Occupying this area was in violation of a court order and, therefore, illegal.
3. The Presidential Secretariat
This is the office of the Head of State and the centre of the administration of the Executive arm of the State. It also contains the most important documents of the State. By occupying this Secretariat, the protestors prevented the highest-level public officer from carrying out his duties. The Prime Minister was to be sworn in at 10a.m and a request by the police to hand over the building by 6 a.m. was refused. This occupation was without precedent in the world but the manner in which similar situations have been dealt with by the West indicates that it would never be considered legal or peaceful or be tolerated. The manner in which rioters were beaten back by the Police on Capitol Hill demonstrated that the US would not tolerate any attempt to take over vital state buildings. The Police Crime Sentencing and Courts Act makes protests outside Westminster Palace illegal. This makes it clear that the occupation of important state buildings is not in any way considered a peaceful protest.
The surrounding circumstances of this period have also to be taken into consideration.
On July 9, the Aragalaya ceased to be a peaceful protest.
On July 13, Aragalaya protestors entered the Rupavahini building, shut down transmission and telecast their own messages.
On July 13, they attacked the Speaker’s Residence in an attempt to take over the access to Parliament
On July 9, they surrounded the private residence of the Prime Minister and set fire to it while looting valuables.
On July 10, the leaders of Aragalaya protestors held a press conference where they stated their intention of occupying the Presidential and Prime Ministerial Offices and residences until the President, the Prime Minister and the entire Government resigned. They outlined their planning for July 9,including joint action with the Inter-University Student Federation (IUSF). IUSF convener Wasantha Mudalige announced his intention to take over the parliament building.
Could anybody with any sanity say that these were the actions of a peaceful protest movement?
It is in this context that we have to analyse the statements made by lawyers in respect of the July 22 events as they contain a serious misrepresentation of fact and law.
The Bar Association:
“The Bar Association of Sri Lanka strongly and unreservedly condemns the use of force and violence last night by the authorities in attacking protestors in the vicinity of the Presidential Secretariat.”
The protestors were not in the vicinity of the Presidential Secretariat but in the Secretariat itself which they had entered by force on July 9. Despite having this information why did the President of the Bar Association suppress the fact that the Presidential Secretariat was the site that was cleared?
Bhavani Fonseka Human Rights lawyer:
“The protestors were very clear that they were going to leave today”
Protestors in all other locations had left by July 14 and according to a statement released by the Police, several attempts by the police officials requesting the occupants to leave had not yielded results for over a week. The police were of the opinion that these occupants who were the hardcore elements could not be trusted.
“And what happened in the early hours of the morning was extremely worrying with violence targeting peaceful protestors”
This is a deliberate falsehood. Is it her position that forcibly entering and occupying the office of the Head of State is considered a peaceful protest in law?
“This is an indicator of what this government is going to do in terms of repression and the threat to basic rights and rule of law in Sri Lanka.”
Another lie was calculated to discredit the government of Sri Lanka. President Wickremesinghe is a Liberal who introduced the 19th Amendment to the Constitution, whose performance regained GSP+ and made Sri Lanka the best location to visit in the world. His commitment to democracy is internationally recognised.
Centre for Policy Alternatives:
Addressing a letter to the Attorney General the CPA states as follows:
“Based on media reports hundreds of military personnel and police blocked the access roads to Galle Face Green shortly after midnight on 21st July 2021 preventing the public from entering the area. Following this the military and police armed with riot gear attacked the protest site.”
The protest site on Galle Face Green was not attacked. Video footage is available showing police calling out to protestors to move from the Presidential Secretariat to the Galle Face Green.
“Assaulting peaceful protestors”
The forcible entry to and occupation of the office of a Head of State can never be deemed a peaceful protest in accordance with the universally accepted definition of what constitutes a peaceful protest.
“Dismantling the tents.”
The list of tents given by Aragalaya leaders were all in the area of the Bandaranaike statue and covered by the Court Order issued on 20th July. Refusal to obey the Court order resulted in the dismantling of the tents.
“Video footage shows unarmed protestors being assaulted by the police.”
Video footage also shows heated confrontations with the Police by Protestors defying the Police leading to their evacuation. Any citizen taking part in a riot would be aware that the Police would use riot gear. There were no serious injuries and this is pure exaggeration to gain sympathy.
The Human Rights Commission stated as follows:
“The Human Rights Commission condemns the brutal and despicable act by the military at the Galle Face vicinity in the early morning hours today. A total violation of the Fundamental Rights of the people by the Executive”.
This statement is a gross misrepresentation of the facts pertaining to the incident. Galle Face vicinity is the area surrounding the Bandaranaike statue and the occupation thereof was illegal due to the court order. This shows that there was an awareness that it was not the Galle Face Green (the only peaceful site in the Galle Face area) that was affected. But by omitting to mention the Presidential Secretariat as the correct location and referring to Galle Face it has created the impression that it was the original site that was affected. Why is it that the Presidential Secretariat is not mentioned? It is doubtful that the HRC has the requisite knowledge of the law relating to Fundamental Rights, the restrictions of these rights and their interpretation.
If the above statements were made bona fide by these lawyers and the experts on fundamental rights it becomes clear that they had not verified facts and had absolutely no knowledge of the law relating to the Fundamental Right to conduct a peaceful protest.
These statements were made in tandem with statements from the western world which were also gross misrepresentations of law and fact.
These were as follows
Julie Chung US Ambassador
“Deeply concerned about the action taken against the protestors at Galle Face.”
This is a deliberate attempt to conceal the truth regarding this incident and by confusing the locations to inform the world that Sri Lanka was violating the Fundamental Rights of its citizens.
Action was taken against the protestors occupying the office of the Head of State and not against those on the designated protest site on Galle Face Green. Was the ambassador not aware that there were three distinct locations with three different legal ramifications involved?
Sarah Hulton, High Commissioner of the UK
“Very concerned about reports from the Galle Face Protest Site.”
This again is a misrepresentation of fact as the incident was focused on the office of the Head of State and the adjacent area around it which was the subject of a court order. The Galle face Protest Site was not attacked.
The news telecast of Ada Derana of July 22 shows persons occupying the Presidential Secretariat being moved to the protest site on the Galle Face Green by the Police as it was accepted that occupation of this site was legal.
UN Human Rights Committee
“The use of force against peaceful protestors runs contrary to international law and we urge the authorities to immediately halt the use of such force.”
Could the UN Committee state categorically that forcibly entering and occupying the office of a Head of State is a peaceful protest
“We are alarmed by the unnecessary use of force reportedly used by the Sri Lankan forces to break up a protest camp near Presidential offices in Colombo”
This was not action taken against a protest camp near the Presidential Offices but action in the Presidential Secretariat itself to evacuate those who continued to occupy this building a week after the original protestors had vacated other buildings.
“Only hours before the protestors indicated that it was due to be dismantled.”
Is it the UN position that those who break the law can dictate to law enforcement officers when they will cease to break the law?
Security personnel including police and military stormed the area and tore down their tents.
The tents that were torn down were in the area around the Bandaranaike statue and they were being used in violation of a court order to clear 50 metres around the statue.
The list of tents given by the leaders including the IT Centre, the Water and food supply Centre, the disabled soldiers’ tent and the Gate Zero tent were all in the area specified in the court order.
“Protestors were not allowed to leave the site for several hours.”
The Police using hailers requested the occupants of the Presidential Secretariat to leave that building and move to the original protest site. After the evacuation, there is video footage of the police escorting the evacuees to the Galle Face Green.
The geopolitical power struggles that are taking place among the powerful nations have resulted in weaker countries being made their pawns. Regime change is a game played by the US consistently. Installing weak leaders and disposing of those who will not dance to their tune has become an effortless exercise. The tools of modern warfare are not limited to bombs and guns and the process of installing puppet regimes has been made easier by the growth of electronic and social media. In a country such as Sri Lanka where the total economy has collapsed leading to widespread discontent among its citizens, it becomes very easy to spread disinformation to destabilise the leaders and cause chaos which would lead to anarchy.
There is a deliberate and calculated attempt to attack the President, tarnish the image of the country especially internationally and ramp up discontent among the citizens to create a climate conducive to more rioting. Is it focused on creating a hate campaign around the President in an attempt to achieve another regime change?
The lawyers and civil rights activists mentioned have misrepresented the truth and have deliberately and maliciously created a picture of Sri Lanka as a country where the Rule of Law does not exist and the new President and the military are engaged in attacking innocent civilians and suppressing their Fundamental Rights.
Is it that the President of the Bar Association, leading human rights lawyers, NGOS and the Human Rights Commission are unaware that the law that relates to the exercise of the right to hold protests is confined to PEACEFUL protests? Why is it that they have suppressed the second part of Article 21 of the Covenant on Civil and Political Rights and Article 15 of our Constitution?
By skillfully playing on the words Galle Face and omitting to mention the occupation of the Presidential Secretariat they have attempted to fan the flames of hatred against the President and Security Forces to enable another riot to take place. Is this what Sri Lanka needs at this juncture?
It is well known that Western Countries like Germany suspend purchasing from countries that violate human rights. Potential tourists reading of a brutal army in a country where the due process of law is said to be absent would prefer a safer destination.
The relentless painting of a dire human rights situation in Sri Lanka are acts which will undoubtedly damage the economy, incite hatred and violence and further destabilise the country. This should be halted before greater damage is done for it is becoming clear with each passing day that Colombo’s foreign-funded NGOs and professional bodies are to the Law and Order of this country what Cabraal Professor Lakshman and PB Jayasundera were to the economic stability of Sri Lanka.