The Human Rights Commission of Sri Lanka (HRCSL) has recommended the Minister of Public Security to direct the Inspector General of Police (IGP) that regulations made in terms of the Police Ordinance would not be permissible if it reasonably impacts at the exercise of fundamental rights and freedom ensured in the Constitution.

HRCSL chairperson Justice Rohini Marasinghe stated this in a letter addressed to the Public Security Minister on the application of the Police Ordinance, No. 16 of 1865 to the civilian protests.

In the letter, she points out that one of the functions of the Human Rights Commission of Sri Lanka is to make recommendations to the Government regarding measures which should be taken to ensure that national laws and administrative practices are in accordance with international human rights and standards, by virtue of section 10(d) of the Human Rights Commission of Sri Lanka Act, No.21 of 1996.
 
In the pursuit of discharging this unction, the commission said it wishes to apprise the Minister of the particulars of the application of the Police Ordinance, No.16 of 1865 as amended, in particular, section 77 - 80 of the same, in order to ensure that the fundamental freedoms of speech and expression, and peaceful assembly of the citizens of Sri Lanka enshrined in Articles 14(1)(a) and 14(1)(b) of the Constitution of the Democratic Socialist Republic of Sri Lanka respectively are protected, subject to the restrictions contained in the Constitution itself.

The provisions that the Commission takes particular issue with are sections 77(2) and (3) of the Police Ordinance, No.16 of 1865, as amended by Act No.41 of 1984

Section 77(3) of the Police Ordinance, No.16 of 1865, as amended by Act No.41 of 1984, states that a police officer not below the grade of Assistant Superintendent may prohibit a public procession or subject it to conditions if he considers it expedient to do so in the ‘interests of the preservation of public order.’

The Commission emphasizes that the power conferred by section 77(3) of the Police Ordinance, No.16 of 1865, as amended by Act No.41 of 1984, is strictly subject to the Constitution and should only be exercised accordingly.

The Commission says it is of the opinion that the Police Ordinance, No.16 of 1865, in particular section 77 of the Police Ordinance, No. 16 of 1865 as amended by Act No.4 1 of 1984, has been incorrectly interpreted and applied in the recent past ultra vires the Constitution to suppress the fundamental freedoms of speech and expression. Peaceful assembly of civilian protesters enshrined in Article 14(1)(a) and (b) of the Constitution, respectively.

Besides the threat to fundamental freedoms guaranteed by the Constitution, this state of affairs mainly concerns the Commission because, as expressed by Fernando J. in the Jona Ghosha case, “stifling the peaceful expression of legitimate dissent today, can only result, inexorably, in the catastrophic explosion of violence some other day......”, the letter said.

Therefore, the Commission recommended the Minister to direct the IGP that regulations made in terms of the Police Ordinance would not be permissible if it reasonably impacts the exercise of fundamental rights and freedom enshrined in the Constitution, specifically in relation to Article 14(1) (a) and (b).