For press freedom by Sunanda Deshapriya
Over one Dozen Arrested by Police: Even Obituary Notice banned.
The Centre for Human Rights (CHR) – Sri Lanka has received information that 24 individuals have been arrested in the last few months for pasting posters and stresses that using outdated sections of the penal code to arrest and press charges against activists can be considered as an attack on the freedom of expression.
There are no legal provisions preventing anyone from printing, distributing or pasting posters but in the recent months many arrests were made under the outdated section 120 of the penal code that deals with treason and unrelated sections of the National Thoroughfares Act and National Environment Act.’
Section 120 of the penal code, exciting or attempting to excite disaffection, is an outdated and obsolete provision introduced to the country in the colonial period. This section was specially introduced to safeguard the colonialist interests and does not befit a modern democratic society.Under section 120 a person can be sentenced to two years in prison and it is absurd to send an individual to two years in prison for pasting a poster.
This CHR report looks at how the legal provisions currently being used to prevent the pasting of posters affects the democratic practices.
The scope and extent
In the recent months the Sri Lankan police have implemented a programme to prevent opposition political parties, student and trade union activists from carrying out poster campaigns. CHR has found that the police have arrested and pressed charges against 24 individuals in the last couple of months and
four have been released on bail while many others have had to plead guilty and pay fines. It’s important to notice that all 24 individuals have been arrested for pasting posters which deal with the university crisis, problems faced by the workers and medical professionals, in essence posters which are critical of government policies. However in some extreme cases the police have banned the pasting of death notices in some police divisions.
However there are no legal provisions preventing the pasting and display of posters, cut outs and billboards or distributing leaflets and handouts. Because of that the charges made by the police are frequently dismissed by courts of law.
The legislations used for arrest and charging
Given below are the main legislations used by the police to arrest and charge those who have been found pasting posters.
1. Penal Code, Section 120, exciting or attempting to excite disaffection, of Chapter VI which deals with ‘conspiracy’
2. Section 118, of the code which makes it an offence to bring the Queen/President into contempt by contumacious insulting or disparaging words (spoken or written.) This has been repealed by Sri Lanka. Penal Code (Amendment) Act, No. 12 OF 2002
3. Section 56 (1) and 56 (2) of the National Thoroughfares Act, N0. 40 OF 2008 which gives permission for the Police to arrest and charge individuals for painting on national highways without permission.
However the police had arrested and charged individuals pasting posters under section 60 and 61 which clearly shows that they are misusing and manipulating legal provisions for achieving their goals.
Practicalities and extremism
Nevertheless a closer examination of these provisions shows that the police have not followed procedure that has been laid out by the above mentioned legislations. This has been frequently highlighted by the lawyers appearing for those who have been charged.
Section 127 of the penal code states that the police needs the ‘authority of Attorney-General required for prosecution under this Chapter’ but the police has not obtained the approval of the AG’s Department in any of the above mentioned cases. For example police arrested JVP supporters who were pasting posters which referred to the trial and conviction of former army commander Sarath Fonseka under the emergency regulations. They were charged under section 120 but no advise was sought from the AG’s department.
Section 60 and 61 (1) of the National Thoroughfares Act is another legal tool frequently used by the police. In mid November, 2010 Kelaniya police arrested and charged two Janatha Vimukthi Peramuna (JVP) supporters who were pasting posters about the ‘November Heroes Commemoration’ (Ill Maha Viru Samaruwa) under section 61 (1) but they were released by the magistrate court. The Kaduwela magistrate court also dismissed the charged filed against
individuals circulating posters regarding a doctors’ conference under Section 60.
Like the Section 120 of the penal code the police need the authority of the Chief Engineering Officer of the Road Development Authority to charge anyone under section 60 and 61 (1) of the National Thoroughfares Act. However it has not sought the permission of the Chief Engineering Officer in any
of the occasions. Furthermore the Police has frequently arrested and charged individuals who have been pasting posters in roads under provincial councils despite the fact that the Thoroughfares Act only applies to the roads maintained by the Central Government.
The contents of the posters
When CHR analyzed the data it realized that the animosity of the police is mainly directed at posters which deal with the following issues. The contents of the posters also point at the true reasons behind the actions of the authorities.
1. On November, 03,2010 two students of Kelaniya University, who were pasting posters demanding the immediate release of Udul Premarathne, convener of the Inter University Students Union (IUSF,) were taken into custody by Katunayake Police. The two students, Dayan Weerakkody, President of Kelaniya University Students’ Union and Janaka Bandara were charged with treacherous activity under Section 120 of the penal code. CHR believes that demanding the release of Premarathne cannot be considered a treacherous demand.
2. Four students of the University of Ruhuna were arrested at 11.45 am on November, 15,2010 for distributing leaflets against the proposed establishment of private universities.They were kept in a cell until 4 pm but were released without being produced in courts since one student was the son of a police officer.
3. In Awissawella, Mt Lavinia, Colombo Central, Colombo North, Wellampitiya, Kotikawatta,Mulleriyawa, welikada and Borella the police are carrying out special patrols targeting those who carry out poster campaigns. They have been intimidated and the posters are frequently destroyed.
4. The police frequently accuse these individuals for violating of the National Environment Act, No 47 of 1980. However the National Environment Act does not contain any legal provisions to prevent the distribution of handbills or the display of posters 5. Four students have been arrested for pasting posters against the privatization of free education, in Aralaganwila, Polonnaruwa around 10.00 pm on November, 25, 2010. The parents of the students accuse the police of assaulting their children and claim that the police have broken the leg of one student. The posters criticize the privatization of free education through the proposed school development council act.
However several individuals who have been arrested by the police have filed Fundamental Rights petitions at the Supreme Court against the police officers who detained them.Already FR cases have been filed against the police officers of Thalangama and Dummalasuriya while two persons arrested by the Kelaniya police are planning to file a FR violation petition.
Meanwhile police spokesman SP Prishantha Jayakody told CHR that he has no statistics about the number of arrests made in relation to pasting posters.
Freedom of expression is enshrined in the Sri Lankan constitution. This fundamental right guaranteed by section 14-1 of the constitution can be repealed only if:
The exercise and operation of the fundamental right declared and recognized by Article 14(1) (a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence. (Section 15- Restrictions on fundamental Right)
Therefore CHR vehemently opposes the current crackdown on posters which does not fall under the above mentioned categories and using outdated sections of the penal code and inapplicable clauses of the National Thoroughfares Act and National Environment Act to arrest activists who attempt to raise social awareness on pressing issues.
(Report compiled by Harendra Bandagala, Nirosh Bandara and Rajith Keerthi Tennakoon)