- Yes, but with restrictions, says the Constitution
With the ongoing peaceful protests at Galle Face Green, which have since expanded all throughout the island, a commonly brought up topic of conversation has been the citizens’ right to protest.
Peaceful citizen protests have, in many instances, seen the Police and numerous authorities attempting to take varying steps to obstruct protestors. A notable example is the recent Inter University Students’ Federation (IUSF) protest march which was faced with roadblocks and barricades. It’s important to note here that the Colombo Magistrate’s Court rejected the request made by the Police to issue an enjoining order against the march to be held by the IUSF, stating that Police may only take action in the event of an illegal act under the Police Ordinance.
Amidst these protests, people have been made aware of their right to peaceful protest as per the Constitution.
As per Article 14 (1) “Every citizen is entitled to:
(a) the freedom of speech and expression including publication;
(b) the freedom of peaceful assembly;”
PHOTO © ADA DERANA
However, on 14 April, a uniformed Police officer was placed under arrest by the Colombo Fort Police for essentially joining the protests ‘on charges of making contentious remarks at the Galle Face protest’. The officer has since been interdicted pending an inquiry. In a media release on the subject, the Police Spokesman’s Office said the Police Sergeant in question, who is attached to the Kuttigala Police Station, had left the Police station without permission and had joined the protest.
The release further stated that Sri Lanka Police will be taking disciplinary action against the Police officer who had participated in the protest as well, adding that this incident has severely discredited the Sri Lanka Police, which is a disciplined service.
Since legal action was taken against the officer, there has been a conversation about why the officer was interdicted. After all, he too is a citizen of Sri Lanka. So, if we as citizens are all equal before the law, then why was this officer interdicted for essentially exercising his constitutional right to peaceful assembly?
Attorney-at-Law Mokshini Jayamanne shared with Brunch that essentially, the officer in question had participated in the protest in uniform, which would indicate that he was still on duty and representing the Sri Lanka Police. He remains duty-bound by the disciplinary codes applicable to him as an officer. She noted that while public servants technically maintain the right to peaceful protest, they are each bound by their individual institutions’ disciplinary code.
Addressing the specifics of a public servant’s right to protest, Attorney-at-Law Shantha Jayawardene added that when it comes to members of the Armed Forces, Police Force and other Forces, there are certain restrictions on their rights as per the Constitution.
Quoting Article 15 which lays out the restrictions on fundamental rights, Jayawardene explained that Article 15(8) provides that “The exercise and operation of the fundamental rights declared and recognised by Articles 12(1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interests of the proper discharge of their duties and the maintenance of discipline among them.”
Jayawardene also explained that while these restrictions were specific to those uniformed officers as mentioned above, if we were to question the applicability for public servants in other institutes, there is a dedicated code – the Establishments Code. This document is issued by the Secretary of the Ministry in Charge of the subject of Public Administration on the approval of the Cabinet of Ministers, and it offers two volumes which specify the do’s and don’ts that are applicable to those in the employ of the Government.
In volume two of the Establishments Code under Chapter XLVII is ‘General Conduct and Discipline’. According to Attorney Jayawardene, public servants are made aware of their rights as per this code during their employment with the Government.
Public servants are categorised into three parts depending on their salary, and officers who fall in the Executive category – that is, ‘staff grade’ officers – are responsible for the execution of policy and therefore may have certain political rights restricted by law.
Noting that the restriction of political rights is specific to their levels of employment, Jayawardene shared that there are occasions when certain officers are allowed to hold public office and contest in Local Authorities elections (Pradeshiya Sabha elections) and such while remaining an employee in the public sector. However, staff grade officers are considered those who execute Government policy and are therefore an extension of the Executive, so they are often excluded from activities such as taking appointments in Local Authorities.
On public servants and their right to protest, Jayawardene confirmed that public servants have relative freedom to agitate against their employment issues and they are allowed to form associations. Even the Police, while not legally allowed to be a part of trade unions, are allowed to maintain welfare associations. However, despite all these freedoms, public officers are subject to the Establishments Code and its restrictions. When it comes to Police officers, their rights to peaceful assembly are restricted at the constitutional level itself.
So, even though people have been looking at this particular incident from a rather empathetic angle considering the actions of the officer that got him in hot water, it would appear that the authorities are well within their rights to bring action against said officer. Also, now that we have been made aware of the limitations placed upon public servants by virtue of their employment, perhaps we can be slightly more sympathetic towards those who rely on the public service for their income and are duty-bound to maintain a certain decorum as a result of their station, regardless of their personal views.
