By Jayampathy Wickramaratne –

Dr Jayampathy Wickramaratne PC

‘Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.’ Justice Mark Fernando in Amaratunga vs Sirimal.

The recent arrest of a young man who called upon fellow motorists to sound their horns in protest at the sudden interruption of traffic in Colombo to facilitate a “VIP movement” has led to a discussion on the right to protest by making noise.

The video recording of the incident has gone viral. As was later found, the “VIP movement” concerned was the motorcade of the visiting Chinese Defence Minister. The Police had not announced in advance that the road would be closed. While people resent road closures to facilitate movements of local VIPs, hardly anyone would object if it was known that the VIP was a visiting senior Minister of a friendly country, whether it be China, India or other. President Gotabaya Rajapaksa has set an example by moving around almost unnoticed with only a few vehicles in convoy. In May 2019, when a video showing motorists honking loudly in protest when a road was blocked to facilitate a VIP movement went viral, President Sirisena ordered an end to such road closures. On that occasion, Mr. Mahinda Rajapaksa said that “the displeasure shown by the public against the closure of roads for VIP vehicular movements by unceasingly sounding the horn were a reaction to the Government’s policies”.

Watching last week’s video, it is clear that the young man thought that it was a local VIP who was being conducted—it would not have made a difference to his right to protest even if it was otherwise. He only called upon others to sound their horns in protest; he did not instigate violence. According to media reports, Police claim that he obstructed the Police in performing their duties. The recording belies that claim. He is even accused of instigating an “unlawful assembly”! That the young man expressed his regret for what he did after being released on bail is immaterial.

The right to protest peacefully is so central to a functioning democracy. It is a right that may be exercised individually or collectively. It is in authoritarian states that the right to protest is not tolerated. A democratic state has a positive obligation to protect the right of peaceful protestors.

Last December, in the matter of the farmers’ protest blocking the roads in Central Delhi, Chief Justice Bobde stated: “We clarify that this court will not interfere with the protest in question. Indeed, the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens. … We are of the view at this stage that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police”.

The incident also brought to focus an important judgment of our Supreme Court, Amaratunga vs Sirimal, reported at [1993] 1 Sri Lanka Law Reports 264. Ironically, the case related to a protest called “Janagosha”, the main organizer of which was Mahinda Rajapaksa, the present Prime Minister. Pictures of Rajapakse blowing a horn during the protest were widely circulated via social media after last week’s incident. Janagosha was a 15-minute peaceful protest conducted on 01 July 1992, organized by several Opposition parties, including the SLFP, during the Premadasa era. The protest was to show disapproval of the policies and actions of the Government on a range of issues such as the unbearable increase in the cost of living, the privatization of public enterprises and the consequent retrenchment, wasteful expenditure on political extravaganzas, corruption, the suppression of discussion on certain matters of public interest, escalating abductions and killings, and the North-East War. According to the judgment of the Supreme Court, delivered by Justice Mark Fernando, “prospective participants were asked to orchestrate their efforts in a noisy cacophony of protest—the ringing of temple and church bells, the tooting of motor vehicle horns, the beating of drums, the banging of saucepans, and the like—so that there might resound, throughout the nation, a deafening din of disapproval.”

Petitioner Amaratunga was a member of the Horana Praddeshiya Sabha. His complaint was that two Police officers had destroyed and silenced his drum, which he used at the Janagosha. The first respondent officer had used a “molgaha” —a rice pounder—to destroy the drum. Justice Fernando was satisfied that the Police acted simply because anti-Government slogans were being shouted. The learned Judge stated that there was ample authority that “speech and expression” guaranteed by Article 19 (1) (a) of our Constitution extended to forms of expression other than oral or verbal—placards, picketing, the wearing of black armbands, the burning of draft cards, the display of any flag, badge, banner or device, the wearing of a jacket bearing a statement etc. The right to support or to criticize Governments and political parties, policies and programmes, is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions, Justice Fernando stated.

A European case involving the use of sound to protest was Hashman and Harrup vs The United Kingdom, where proceedings had been brought against the applicants, hunt-saboteurs on their own admission, who disrupted a fox hunt by blowing a hunting horn and shouting. They were each bound over by a Magistrate in a sum of £100 not to breach the peace and to be of good behaviour for twelve months. The European Court of Human Rights held that while the protest took the form of impeding activities which the applicants disapproved, nonetheless, it constituted an expression of opinion within the meaning of Article 10 of the European Convention. The measures taken against the applicants were, therefore, an interference with their right to freedom of expression.

Mazdoor Kisan Shakti Sangathan vs Union of India was a batch of cases against decisions of the National Green Tribunal (NGT) which concerned the right to protest near the iconic Jantar Mantar in Central Delhi, a popular place of protest.  The NGT had prohibited all protests, agitations, assembling of people, public speeches, using of loudspeakers etc near Jantar Mantar. Residents of the area had complained that their right of movement had been restricted and that they had been greatly inconvenienced by the sound emanating from the protests. The NGT had issued directions that included the shifting of protestors, agitators and people holding dharnas to an alternative site in Delhi.

The Indian Supreme Court observed that undoubtedly, the right of people to hold peaceful protests and demonstrations etc is a fundamental right. The question was whether disturbances etc caused to residents is a larger public interest which outweighs the rights of protestors to hold demonstrations and, therefore, amounts to reasonable restriction in curbing such demonstrations. While the demonstrations had caused serious discomfort and harassment to the residents, it is also to be kept in mind that for quite some time Jantar Mantar had been chosen as a place for holding demonstrations and was earmarked by the authorities as well. Primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing a right of one class to some extent so that the right of the other class is also protected. Justice Sikri directed the Commissioner of Police, New Delhi to devise, in consultation with other concerned agencies, a proper mechanism for the limited use of the area for protests, demonstrations etc but to ensure that they are regulated in such a manner that they do not cause any disturbance to the residents of Jantar Mantar Road or the offices situated there. Detailed guidelines in this respect should be formulated.

The Police should not be over-zealous in dealing with peaceful protests. The state must not only tolerate peaceful protests but also safeguard the right of citizens to protest. There are enough and more examples from all over the world on what befell governments that did not tolerate dissent. As Justice Mark Fernando warned in Amaratunga vs Sirimal, “stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.”