State of the nation: Civil rights in peril

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With the turmoil in Sri Lanka is continuing, the legal fraternity and several stakeholders have expressed concern of the continuing violation of the provisions of the Constitution through action and inaction of those in power.

The Constitution is the highest law of the island and increased contravening acts have inevitably also gained negative International attention. The Human Rights Watch (HRW) has also urged institutions that are offering assistance, to address the economic crisis, to insist the Government to respect fundamental freedoms.

Cabinet of Minister and secretaries

With former Prime Minister Mahinda Rajapaksa stepping down from his position following the tragic turn of events in which anti-government protesters were attacked by Sri Lanka Podujana Peramuna supporters, the Cabinet stood dissolved.

Accordingly, Article 52 (3) of the Constitution states that the Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers under the provisions of the Constitution or upon a determination by the President under Article 44 or Article 45 which results in such Ministry ceasing to exist.

However, three Secretaries to the Ministries of Defence, Public Security and Finance were appointed two days after the Premier’s resignation to ensure normalcy to civic life, in accordance with the powers vested in the President.

Constitutional lawyer Thisath Wijayagunawardane PC observed that this appointment in itself is in contravention to Article 52 (3) of the Constitution in a backdrop where the relevant Ministers were not appointed prior to the appointment of secretaries.

Simultaneously concerns on the failure to appoint Ministers in such a crucial juncture to overlook the Ministries has also been raised together with the positions of secretaries, who according to Article 52 (2) of the Constitution, the Secretary to the Ministry shall, subject to the direction and control of his Minister, exercise supervision over the departments of Government or other institutions in the charge of his Minister.

Wijayagunawardane said in such a situation where the operation of Ministries is crucial, there should be a Secretary to the President who is able to overlook the smooth functioning of Ministries and this could be the only plausible solution and will not be in contravention to the Constitution.

Shooting orders

Amidst the tension that unfolded following the attack on anti-government protesters, Secretary to the Minister of Defence,  Kamal Gunaratne on 10 May ordered tri-forces to open fire on rioters by quoting a large number of incidents involving violent behaviour, causing disturbance, vigilantism, assaulting Police officers and destroying public and private property.

TNA, MP M.A. Sumanthiran commenting on such order observed that in a backdrop where the Cabinet of Ministers ceased to function, the work of Ministry Secretaries also fall under the same category, thus, such individuals could not issue any edicts or orders. Therefore, Sumanthiran argued that Gunaratne’s directive is not legally binding and should be declared null and void by the Courts.

Speaking on the shooting orders, South Asia Regional Director at Amnesty International , Yamini Mishra regarded it as the provision for ‘a licence to kill’, adding that violent mobs should be contained, however lethal force must not be the first resort.

“Any restrictions on human rights during times of emergency must be necessary and proportionate to the exigencies of the situation and must not be used as a tool against freedom of expression, peaceful assembly, right to personal security, liberty and freedom from arbitrary detention. Further, any derogations from human rights guarantees under the International Covenant on Civil and Political Rights, to which Sri Lanka is a state party, should be formally communicated with a clear explanation of the reasons for them to other State parties,” she said

Thereby AI urged Sri Lanka to immediately rescind the emergency regulations and shooting orders that provide excessive powers to the Police and military, and take immediate steps to respect, protect and fulfil the human rights of peaceful protestors.

Sovereignty

According to Article 3 of the Constitution, sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.

Accordingly, the Sovereignty of the People shall be exercised and enjoyed by legislative power of the People by Parliament, consisting of elected representatives of the People and by the People at a Referendum, the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People, the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by law, except in immunities and powers of and of its wherein the judicial power of the People may be exercised directly by Parliament according to law.

Wijayagunawardane observed that public has voiced their displeasure against the Executive due to his failure to perform his executive duties in a lawful manner adding that the power is given to President only to exercise it for the benefit of people. While noting that the President is only a trustee, he has most evidently breached public trust.

Right to peaceful protest

Article 14 (1) (a) (b) of the Constitution states that every citizen is entitled to the freedom of speech and expression including publication and the freedom of peaceful assembly. Following the attack and previous arrest of peaceful protesters, several urged for this crucial right guaranteed by the Constitution to be upheld.

The HRW stated the Government should uphold the right to peaceful protest, ensure that the security force response to public disorder is proportionate and rejects excessive force, and promptly investigate and appropriately prosecute acts of violence.

US Ambassador to Sri Lanka Julie Chung also reiterated their support for the rights of peaceful protesters. Commenting on an incident where 13 peaceful protesters were arrested by Police near the Parliament complex, Chung noted that the freedom to engage in peaceful protests “without fear of arrest” is a fundamental right to democracy.

UK High Commissioner Sarah Hulton, in a Twitter message, stated, “A democratic and peaceful approach is essential to resolving the current challenges. Rights to peaceful protest and freedom of expression must be respected alongside all fundamental rights. Emergency laws restricting those rights work against democratic dialogue and solutions.”

New Zealand High Commissioner to Sri Lanka Michael Appleton observed “Sri Lankans, whose recent protests have been overwhelmingly peaceful, deserve to have their voices heard. We encourage all to focus on solving Sri Lanka’s political and economic challenges.”

Canadian High Commissioner David Mckinnon, also expressing concern, tweeted, “Over the past weeks, the demonstrations across Sri Lanka have overwhelmingly involved citizens enjoying their right to peaceful freedom of expression, and are a credit to the country’s democracy. It’s hard to understand why it is necessary, then, to declare a state of emergency.”

Emergency regulations

Lawyers also raised concerns over the recently declared Emergency Regulations, observing that it gives tremendous executive powers of control, directed at protests and strikes.

Attorney-at-Law and activist Ermiza Tegal observed that the powers of arrest, under the new Emergency Regulations, are overly broad given the long list of offences, adding that armed forces are empowered to arrest and investigate in a manner that contravenes international standards. She added that a stark absence of requirements to protect human rights of citizens could be observed.

Tegal noted that freedom of assembly related regulations are also heavily disproportionate to context and imposes heavy penalty. She added that the regulations on detention are heavily disproportionate and is decentralised to DIGs for first time in Sri Lanka and fails to safeguard the human rights of citizens.

She further noted that the regulations create a culture of surveillance, as the failure to give information to the local Grama Niladhari and to the local Police and the failure to give information or deliver any document or thing, to the Police or person authorised, are termed as an offence under the Emergency Regulations.

“It is very concerning that this regulation specifically states that it applies to persons irrespective of the capacity in which such person has received such information or knowledge of the contents of such document,” she added.

She noted that the Emergency Regulations could also be used to compel lawyers and doctors to divulge confidential information and documents received in confidence and thereby creates in effect a culture and system of suspicion and surveillance.

“Over fifty offences are specified in the ER. Some offences are offences under the Penal Code and have been recast as offences carrying life or 20-year imprisonment,” she added.

Tegal said the Emergency Regulations also provide for the expansion of the President’s power and reach to appoint a Commissioner General of Essential Services (CGES) to coordinate essential services, to appoint a Coordinator-in-Chief to supervise Coordinating Officers and to appoint Coordinating Officers with same powers as GA.

“The above essentially creates a highly centralised administrative structure. Considering the President’s own background and depending on the appointments made this structure could look very military like,” she added.

AI also noted that the Emergency Regulations lack due process safeguards, such as the right to be informed of the reason for arrest, and the issuance of an arrest receipt at the time of arrest informing family where they would be detained. Access to legal counsel is subject to conditions. The offences are broad and can be used to bar trade union strike actions, give powers to the President to shut down public processions, restrict access to public spaces, restrict the right to freedom of expression including the right to information, freedom of movement and peaceful assembly.

US Ambassador Julie Chung, in a Twitter message said, “Concerned by another State of Emergency. The voices of Peaceful citizens need to be heard. And the very real challenges Sri Lankans are facing require long-term solutions to set the country back on a path toward prosperity and opportunity for all. The State of Emergency won’t help do that.”

The European Union (EU) delegation in Sri Lanka said that the State of Emergency will certainly not help in solving the country’s difficulties and could have a counterproductive effect.

Wijayagunawardane stated that although the Constitution CHAPTER III provides for Fundamental Rights exercised by people, Article 15 provides restrictions on such freedom adding that Emergency Regulations should be broadly assessed to determine whether if it falls within the restrictions contained in this Article.

By Faadhila Thassim