The Freedom of Expression and Peaceful Assembly Guaranteed by the Constitution are not Absolute rights: A Critical Analysis in the Light of Recent Incidents

Prashandini Uthayakumar
LL. B (UOJ), LLM, DFMS, DIR
Attorney-at-Law

Freedom of expression and peaceful assembly are elements of democracy. Many international laws enumerating these two rights are very special to every state’s accountability. However, these rights are subject to derogation in the interest of national security, public/racial harmony, or any other sovereign identity which is accepted nationally and internationally. In the recent past, Sri Lanka went through many challenges which pointed out these two rights’ applicability and limitations. The COVID-19 pandemic and economic crisis brought all the people onto the streets to demand the proper administration of the country. Even if the people exercise these rights which are guaranteed by the 1978 constitution, there are a number of arbitrary limitations imposed on them. Several people were arrested, law enforcement officers used their powers beyond what was necessary, and government regulations unnecessarily restricted the freedom of these rights. If these two rights are not absolute rights and capable of being derogated from under any circumstances, when are those circumstances constitutional? The existing studies always describe the theoretical approach of these areas, but they never analyse their practical application. This article mainly focuses on the practical application of these rights and laws in courthouses in relation to recent incidents. It analyses how the freedom of expression and peaceful assembly are exercised in the Sri Lankan context, whether national laws are in line with international laws, how the limitations on these rights are unconstitutional in their character, and how law enforcement officials apply criminal law to restrict the application of these rights. It also undertakes an analysis of the provisions in the legislation and functions of the enforcement body. Thereby, it carefully examines those provisions and international standards to support its analysis. The comparative study method was adopted to identify the theoretical and practical aspects of these legal frameworks.