Apart from the peace that would hopefully pass understanding (despite those who somewhat justifiably claim that the understanding has been obtained shamefully), it seems scarcely harsh to conclude - seven months after a new administration was voted into power at the December polls last year - that little else has changed in the process of governance in Sri Lanka. The nature of what has transpired within the course of this week alone is sufficient to substantiate this necessary though highly regrettable coming to judgement.

One particularly apt illustration is the police assault of Chief Ministers and Provincial Council members, attempting to proceed towards Temple Trees to hand over a memorandum to the Prime Minister on the reduced allocation of funds to the councils.

Why a baton charge was considered necessary with regard to, what was to all intents and purposes, a peaceful procession, is still to be clarified. Suffice to say that if what is maintained by those who were charged (and of whom, one was injured) is accurate, it is no wonder that this bothersome sense of déjà vu persists.

The right to march peacefully in order to hand over petitions and protest letters is, without a doubt, one of the most common rights of individuals in this country, regardless of whether it is Temple Trees that is the target or some other lowlier abode. Marching, parading and picketing on the streets and holding meetings in parks and other public places have been long accepted as constitutionally protected activities. And instances where the Inspector General of Police (that same gentleman who sanctimoniously preferred to call a press conference in order to castigate a senior DIG for saying on television that many police officers had links with the underworld) and his predecessors have been reminded of this fact, even in cases of actual marches involving slogan shouting and the like, by none less than the Supreme Court of this country are legion.

One remembers a notable instance for example, three years after the People's Alliance came to power in 1994, when the right to freedoms of speech and assembly of members of the NSSP to march in procession on May Day had been seriously restricted by the police, interestingly revoking permission that had been granted earlier on the grounds of security reasons. The contention of the then IGP, that Section 77(3) of the Police Ordinance gives the police an unlimited power to prohibit the taking out of processions or to impose conditions on the holding of processions and that "there is no fundamental right to use a public highway for a demonstration" was emphatically disagreed with by the Court.

Here, in a caustic reference to a 'misunderstanding' prevailing in the mind of the police regarding their power over the conducting of marches and processions, Justice A.R.B. Amerasinghe (who headed a Bench comprising Justices Wijetunge and Gunewardena), emphasized the fact that the Police Ordinance was necessarily subject to the provisions of the Constitution. Streets, parks and public places are held in trust for the use of the public and have been customarily used for purposes of assembly, communicating thoughts between citizens and discussing public questions. Such use of the streets, parks and public places is (therefore) a part of the privileges, immunities, rights and liberties of citizens. Whatever restrictions placed by police officers on these rights must, however, be unrelated to the suppression of free expression and must be no greater than is essential to maintain public order. In other words, the Police Ordinance was ruled by Justice Amerasinghe, somewhat picturesquely, not to empower police officers to "roam at will" in prohibiting or restricting public marches.

In that particular factual context, the Court found it easy to hold that the prohibition of the NSSP procession was for the purpose of the suppression of the free expression by members of that party and not for security reasons, particularly in view of the fact that processions of other political parties had been allowed. The police was held not to have acted evenhandedly in applying the provisions of section 77(3) of the Police Ordinance and the Emergency Regulations under which they exercised their powers, thereby violating the fundamental right of the NSSP marchers to equality before the law (Article 12(1)) as well as their right not to be discriminated against on the ground of political opinion. (Article 12(2)) together with the rights to freedom of expression (Article 141(a)) and assembly (Article 14(1)(b)).

The NSSP case (Palihenage Don Saranapala vs S. A. D. B. R Solanga Arachchi, SSP, the IGP and others, 1997) illustrates well the judicial warning that the police cannot act with impunity in their responses towards the conducting of public marches and processions. Instead, they must act cautiously and above all, proportionately to the right of the marchers to exercise their expression. This is a salutary reminder that our guardians of law and order appear to have completely lost sight of, in the instant case of the unfortunate Provincial Councillors, which indeed involved not only a prohibition of a procession but an actual assault. A thorough and effective inquiry into the incident is therefore imperative, notwithstanding the fairly astounding claim made in Parliament by Interior Minister John Amaratunga that nothing untoward had, in fact, happened.

Wednesday's incident is, in fact, the latest in an increasingly evident pattern of police assaults on processions and demonstrations where marchers, including university students have been baton charged. This is an alarming trend that should be swiftly checked by the Government, for its own good.

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