Revoke declaration of state of emergency - BASL

The Bar Association of Sri Lanka (BASL) has called upon President Gotabaya Rajapaksa to revoke the proclamation declaring a state of emergency.

Issuing a statement, the BASL urged the President to ensure the protection of several fundamental rights, including those concerning the freedom of expression, speech and publication and peaceful assembly.

Referring to these rights as "aspects of the sovereignty of the people", the BASL urged that they be"respected and protected and not violated by the State or its agents".

Expressing their grave concerns over the Extraordinary Gazette issued by Rajapaksa last night (01) declaring a state of public emergency in the country, the BASL was of the view that such actions were not the answer to the ongoing crisis.

Instead, they proposed that the Government make people aware of its policies and plans for the recovery of the economy in order to alleviate their suffering.

"These protests reflect the desperate situation of the people who are seeking to secure for themselves, and their families some of the most basic essentials in life", the BASL said.

Speaking in relation to the violence incited at the protest that took place near President Gotabaya Rajapaksa's residence in Mirihana on 31 April, the BASL noted that while such violent acts involving the destruction of property need to be condemned, "a distinction must be made between those engaged in peaceful protests exercising their constitutional rights and those who engage in violence".

"The BASL for its part is committed to protecting the rights of the people of Sri Lanka and will take all necessary steps for that end including the providing of assistance to those whose rights may be infringed during this time",

the statement concluded.

Given below is the full statement:

STATEMENT BY THE EXECUTIVE COMMITTEE OF THE BAR ASSOCIATION OF SRI LANKA ON THE DECLARATION OF EMERGENCY

The Bar Association of Sri Lanka (BASL) is gravely concerned by the declaration of a state of emergency by His Excellency the President on the night of April 1st, 2022.

Consequent to the declaration of a state of emergency the President is empowered to make Emergency Regulations which can override, amend or suspend the provision of any law, except the provisions of the Constitution.

The BASL is of the view that a declaration of a state of emergency is not the answer to the present situation in the country, including the spate of public protests which have occurred. These protests reflect the desperate situation of the people who are seeking to secure for themselves, and their families some of the most basic essentials in life.

Over the past several months the country has been heading towards a grave economic crisis and early warnings given by professionals and experts in the field both local and international have gone unheeded.

The BASL too issued a statement on the present plight of the economy on the 14th of January 2022 setting out the consequences of the impending crisis.

Unfortunately, those in authority have until very recently failed to understand the gravity of the situation and the grave impact the crisis has on the life of the people and the community. The unprecedented power cuts extending for over half the day, the fuel shortages, gas shortages, drugs shortages, the foreign exchange crisis and the escalating prices of essential items have all resulted in the people of this country being driven to desperation. There has been a failure to understand the aspirations of the people, and to empathize with the suffering of the people of the country.

The Government of Sri Lanka must make people aware of its policies and plans for the recovery of the economy in order to alleviate their suffering.

The BASL is firmly of the view that the right to protest and the right to dissent are important aspects of the fundamental rights of the people including the freedom of expression and the freedom of peaceful assembly.

These rights are of course subject to the restrictions set out in Article 15 of the Constitution including in the interests of public order. However, any restrictions that are imposed by law must be proportionate and reasonable.

If a peaceful protest becomes violent, that will only dilute the objective and purpose of a peaceful expression of dissent and strengthen the hands of those who seek to supress legitimate dissent. As such violent acts which occur during a protest and destruction of property whether public or private cannot be condoned and must be condemned. Similarly, those engaged in protests must take utmost care to ensure that such protests remain peaceful and must be wary of persons who might seek to cause violence and destruction during such protests.

However, whilst the authorities including the police have a right to deal with an unlawful assembly and to bring perpetrators of violence to book, a distinction must be made between those engaged in peaceful protests exercising their constitutional rights and those who engage in violence. The state ofemergency must not be used to stifle peaceful protests and dissent or to make arbitrary arrests and detentions.

In the recent case of U. N. S. P. Kurukulasuriya, Convenor, Free Media Movement, and J. K. W.Jayasekara, V Sri Lanka Rupavahini Corporation SCFR 556/2008 and 557/2008 decided on 17.02.2021,the Supreme Court quoted with approval the following passages found in several decisions of Sri Lankan courts:

“The right to support or to criticise governments and political parties, policies and programmes is fundamental to the democratic way of life; …and democracy requires not merely that dissent be tolerated, but that it be encouraged”

“Criticism of the Government, and of political parties and policies, is per se, a permissible exercise of the freedom of speech and expression under Article14 (1) (a).”

In the aforesaid the BASL calls upon His Excellency the President to forthwith revoke the proclamation declaring a state of emergency, and to ensure that the fundamental rights of the people such as the freedom of expression including the freedom of speech and publication and the freedom of peaceful assembly which are aspects of the sovereignty of the people are respected and protected and not violated by the State or its agents.

The BASL for its part is committed to protecting the rights of the people of Sri Lanka and will take all necessary steps for that end including the providing of assistance to those whose rights may be infringed during this time.