By Lal Wijenayake –
When thousands of people from several villages around Weliweriya were demonstrating and if the law enforcement authorities considered this to be an unlawful assembly which is a threat to the maintenance of Law and Order, then under our law the Police is vested with powers to disperse such an assembly under Section 95 of the Criminal Procedure Code.
Under Section 95(3), the military can be used only when such an assembly cannot otherwise be dispersed and if it is necessary for the public security that it should be dispersed. In such a situation a Magistrate or a Government Agent of the District or any police officer not below the rank of Superintendent of Police may cause it to be dispersed by requiring any commissioned or non commissioned officer in command of any personal of the Sri Lanka Army, Navy or Air Force, to disperse such an assembly using such military force as necessary to disperse the assembly. The Section specifically states “In so doing he shall use as little force and do as little injury to person and property”.
The powers under section 96 of the Criminal procedure code for a commissioned military officer to disperse an unlawful assemble is not relevant to this incident as police officers were present and handling the situation at the time.
There are universally accepted procedures that has to be followed by the police in dispersing an unlawful assembly. The assembly is 1st informed that they have to disperse and that action will have to be taken to disperse them if they failed to heed the order. Thereafter if necessary water cannons are used, and then tear gas shells and thereafter, if necessary rubber bullets are used. If all these steps fails, and if the life or property of the police is in danger live ammunition can be used and it is accepted procedure that they should try to disperse the crowd by firing into the air and that they can shoot only in self defense and even in such extreme situations should shoot below the knees.
It is accepted in all civilized societies that only minimum or the necessary force should be used. We have never heard of dispersing a crowd by chasing them for miles to places of worship to shoot them and in such an event the action amounts to murder.
The Supreme Court in the well known Manamperi murder case, Wijesuriya Vs. the State 77NLR 25, regarding a soldier subject to Military Law, it was held that a military officer “continues to remain the custodian of the Civil Law and it will be his duty to shoulder the responsibility of police duties, in the discharge of which he is as much subject to the civil law as an ordinary policeman”
Therefore, there is no room in our law to pursue an attack those running when dispersing a crowd and to shoot at them and in such an event the offenders has to be tried for committing the offence of murder.
In this incident Police has not acted to disperse the crowd and what emerges is that the Army Officers pushed the police aside and has taken upon themselves the task of dispersing the crowd. The question then arises as to under what Law the Army acted.
It is now revealed that on the 3rd of July 2013, President has issued a proclamation in the gazette extraordinary No. 1817/31, under section 12 of the Public Security Ordinance No. 25 of 1947 as amended, calling out all the members of the Armed Forces specified in the 1st schedule for the maintenance of public order in the areas specified in the 2nd schedule.
The Armed Forces named in the 1st schedule are ‘The Sri Lanka Army’, ‘The Sri Lanka Navy’, and ‘The Sri Lanka Air Force’. The 2nd schedule gives all the 25 districts as the specified area.
The question arises regarding the legality of this proclamation issued under Section 12 of the Ordinance.
Under Section 2 of the Public Security Ordinance, the President may by proclamation published in the gazette declare a state of emergency and then the provisions of part II of the Ordinance come into operation. In which case under Section 5 of the Ordinance, the President may proclaim emergency regulations in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the maintenance of supplies and services essential to the life of the community.
The emergency that was declared by proclamations monthly for several years was not extended after the end of the war and hence ceased to operate.
The President is entitled to make a proclamation under Section 12 even though an emergency is not declared.
To call out the armed forces under Section 12 of the Ordinance several conditions has to be satisfied.
I. Circumstances endangering the public security in any area has arisen or are eminent.
II. President is of the opinion that the police are inadequate to deal with such situation in that area
III. Call upon the armed forces for the maintenance of public order in that area.
A plain reading of the section shows that this proclamation can be made for a specific area to deal with a specific situation by use of the specified armed forces, when the President is of the opinion that the Police is inadequate to deal with the situation.
The question arises whether the President can make such a broad proclamation under Section 12 without mentioning a specific area in which specific situation has to be dealt with and he is of the opinion that the police cannot deal with the situation.
Therefore the legality of the proclamation arises though it is plainly clear that this proclamation was not made to deal with the Ratupaswela incident as this proclamation was issued a month before the incident.
The question arises whether this proclamation as it is proclaimed is another step in militarization that we see in our country.
The government has a duty to place before the people the answers to these questions.
*Lal Wijenayake – Chairman – Standing Committee of the Bar Association on Rule of Law and Independence of Judiciary