During the last two years we witnessed a series of demonstrations in various parts of the country. It seems that the demonstrators are enjoying an unbridled freedom which they have never enjoyed before. However, these demonstrations have caused tremendous hardships and inconvenience to the general public.
Article 14(1) of the Constitution grants and secures the freedom of ‘peaceful assembly’ and freedom of ‘association’. These are fundamental freedoms recognized by the Universal Declaration of Human Rights. They are the most significant and fundamental features of a democracy. Right to Demonstration is an extension of the right of assembly and association.
Demonstration is a manifestation of one’s feelings, views or opinion on a particular issue or it may be an assertion of one’s rights.
Demonstration is a form of a medium of expression as well as communication. The main purpose of a demonstration is to ensure that the views of the demonstrators are conveyed effectively to the masses. Some time ago we saw English speaking gentlemen dressed as farmers in loin cloths demonstrating in the streets of Colombo. It attracted the attention of the on-lookers not so much for the theme of the demonstration but for the strange attire which is rarely seen in a Colombo street. However, it was a demonstration with full of fun. It was peaceful, nonviolent and exemplary.
A unique feature of the demonstrations that we saw in recent times is that they are designed to make the general public suffer. Demonstrators assert and agitate for their rights. That be so, they must respect the rights of others. The conduct of most of the demonstrators we saw during the last several months, makes us feel that they did not care for the others. They conducted themselves in callous disregard of the rights of others. It appears that the demonstrators are moved by the belief that when they make the public suffer, the public will turn against the government and carry the fight for them. This is a myth.
The public has suffered enough. They are irritated by demonstrations. So much inconvenience has been caused to the masses that the general public has now begun to hate and despise demonstrators. They are enraged. The wrath of the masses is about to be unleashed on the demonstrators. These feelings have been instilled in the minds of the masses by demonstrators themselves by their own conduct. The inevitable consequence of this menace unless checked early would be that, a day will come that the general public in disgust will react violently against demonstrators. Such an eventuality is not healthy for a democratic society.
Freedom of a wild-ass
During the last two years the public watched in disdain several demonstrations calculated to undermine the rights of the others; undermine the authority of courts, causing tremendous inconvenience to the general public especially the road users.
As a matter of habit demonstrators blocked the roads. Prevented general public from using roads, did not let even ambulances to pass through. They blatantly breached the law, thereby compel the police to use force to disperse the demonstrators. This has been the pattern in many demonstrations. It appears as if the demonstrators wanted police to use force on them, lest the demonstration lacks the effect expected of it and does not receive sufficient publicity. Most of the demonstrations necessarily have a political element and an invisible political hand behind it. The underlying object is not what is manifested.
In January last year, public watched in disgust and disdain the incident that took place at Homagama Magistrate’s court. Homagama Magistrate remanded a priest for contempt of court. This is a serious offence. The conduct thereafter of some of those in yellow robes outside court premises was disgusting. They breached not only the laws of the land but also the fundamental precepts of Buddha Dhamma. They abused lawyers, judges, and police officers.
There had been many instances where schoolchildren came out in protest against the transfer of teachers blocking main trunk roads. This amounts to interference with the administration and breach of discipline.
Recently, we saw a demonstration in Hambanthota against leasing of land to China for an industrial zone. This was not anything new. Various Governments have leased lands from time to time even to foreign companies before. The previous regime had done this at will without any objection. The demonstration at Hambanthota was done in violation of a court order. Demonstrators turned violent. Police used tear gas and water cannons. Police made several arrests. Some are still in remand. In this instance there were politicians leading the demonstration proving thereby that it has more politics than policy.
The latest was the demonstration staged by medical students as a mark of protest against South Asian Institute of Technology and Medicine Ltd. [SAITM]. Police had to use tear gas and water cannons to prevent them from blocking the roadway and to disperse the demonstrators. Government Medical Officers’ Association struck work on the third morning to express solidarity with the medical students.
This chain of events has now taken a violent turn. Chief Executive Officer of SAITM was shot at. Fortunately the CEO was unhurt.
SAITM was started during the period of the previous regime. University Grants Commission approved it as an institution awarding medical degrees on 30-8-2011. This decision received approval by all the Deans of all Medical Faculties of the Government Universities. The then Government gives BOI approval to upgrade Awissawella Hospital in order to provide clinical training to SAITM students, which was done at a cost of Rs.600 million. At the request of the then President Rajapaksa SAITM decided to grant scholarships each having a value of 70 million to ten students. The President Rajapaksa himself awarded them on 28-3-2013. No one dared to speak against SAITM at that time.
When Kotalawala Defense Academy decided to award medical degrees no one dared to demonstrate. This again is an institution which charges fees from the students. For some inexplicable reason the SLMC readily agreed to register the medical graduates who have passed out from the defense academy without an element of protest. They are given clinical training in Jayewardenepura Hospital with the blessings of the Government. The views expressed by some of those in the SLMC against SAITM seem hypocritical.
Shooting the CEO is a clear indication of things to come. An ill-conceived demonstration can cause some false beliefs in the minds of the people. A violent trend can now be seen. The available freedom is now being misused and the things will go out of hand unless they are curbed at the outset itself.
The recent incidents show that demonstrators in the name of democracy have been enjoying the freedom of a wild ass. This should compel the lawmakers to seriously consider the limitations that should be placed upon the right of assembly and association. Most of the demonstrations, it appears, have ulterior motives. The essence of those is not what it purports to show. Many are essentially contrived to place the government in difficulty. They are catering to the whims and fancies of their political masters.
Existing limitations
What are the existing limitations to the freedom of assembly? The most noteworthy is that the assembly should be peaceful. Article 15 of the Constitution stipulates limitations to the fundamental rights including the right of assembly and association. The right of assembly and association is subjected to such restrictions as may be prescribed by law,
• In the interest of racial or religious harmony
• In the interest of national security public order
• In the interest of protection of public health or morality
• In the interest of protection of national economy.
• In the interest of recognition and respect for the rights and freedom of others
• In the interest of general welfare of a democratic society.
Exhaustive as they seem, they cannot nevertheless be implemented, for Parliament has not passed legislation restricting the right as stipulated by the Constitution. Except for national security there are no laws passed by the parliament prescribing the limitations envisaged by the constitution.
Former Minister Vasudewa Nanayakkara brought legislation to make the use of hard language which caused religious and racial disharmony an offence. But it never saw the light of the day.
In terms of section 98 of the Criminal procedure code obstructing a roadway used by the public is a ‘public nuisance’.
A magistrate on application by the Police, could make order to remove such obstruction forthwith. By the time the police obtain the order the damage is done. Thus it takes time to disperse the crowd by resorting to the provisions under the criminal Procedure Code. The legality of the orders made by the judges under this provision, in advance is questionable.
The police can act on their own if the assembly of the people becomes an ‘unlawful assembly’ that is an assembly of five or more persons the common object of which is 1. To topple the Government; 2. To resist execution of a lawful order; 3. To commit mischief or trespass; 4. By the use criminal force deprive the public of the use of a roadway or take possession of property; 5. By the use of force compel any person to do what he is not bound to do and 6. Train in the use of arms or practicing military movements without the consent of the President.
Most of the demonstrations appear peaceful at the beginning but as the gathering increases they tend to become unruly and unlawful Assemblies. In such circumstances the police can act under chapter 8 of the criminal procedure code and disperse such unlawful Assemblies. They could use necessary force. They may use tear gas; water cannons; rubber bullets and baton charge the crowd if they become unruly. Members of such a gathering can be arrested. Police could use all these powers provided the assembly is an unlawful assembly. Police are generally reluctant to use force fearing that they will be answerable to the high-ups for their conduct. Police sometimes become victims of unreasonable decisions.
Lacunae in the Law
Since the right is granted and the limitations too are stipulated by the constitution the parliament cannot pass laws in violation of the constitutional provisions. There are certain lacunae found in the limitations stipulated in the Constitution by article 15 above referred to. It is silent with regard to the right of assembly a. challenging the rule of law b. Contempt of Court and c. conduct calculated to insult the law enforcing agencies and d. conduct affecting the National Economy. These are matters which should be earnestly addressed by the constitution makers. There is an urgent need for Parliament to pass laws as envisaged by the Constitution. Limitations stipulated by the constitution are fairly exhaustive provided Parliament has the courage to pass Laws.
We do not have a Law to regulate assembly and association. If there is a regulatory law with a regulatory authority, the misuse of the freedom and harassment caused to the public could be easily avoided.
A demonstration should not take the shape of a revolution. Demonstrators act in the name of democracy and freedom. Therefore they should act within the law. They cry for their rights by using the freedoms and rights granted by a democratic form of government. If so, they should not deny other people of their rights. If their purpose is to educate the masses and seek the help of the public to relieve them of their grievance a fortiori then, they should not cause nuisance to the public. Self discipline can be brought about by having regulatory laws.
What laws should be brought about
As I pointed out earlier laws must be promulgated, to prevent harassment of people; Prevent abuse and Insult on law enforcing agencies; prevent disrespectful and contemptuous treatment of the judiciary and protect the rule of law. A best example comes from South Africa. Regulation of gatherings Act No. 205 of 1993 is mainly designed to achieve above four objectives. The Act manifestly admits the right of assembly and demonstration. According to this Act, the demonstrators should inform the authorities of the nature, purpose and object of the demonstration well in advance. The persons who take the responsibility should register themselves. If there is a procession they should inform the authorities the route it takes.
The most significant provision is that if as a result of a demonstration any member of the public were to suffer then the organisers are bound by law to pay damages to the persons suffered. Act also makes provision for the authorities to allocate special sites for demonstrators to hold demonstrations. It empowers the authorities to ban demonstrations from being held in any other place other than the place specified.
As the law stands today no one could have been held responsible if a patient who was transported in an ambulance dies as a direct consequence of a delay caused by a demonstration. Demonstrators would have gone unpunished, leaving the kith and kin to bear the grief? The Supreme Court of South Africa held that this law is consistent with their constitution.
Recent developments show a dire need for a regulation of gatherings in our country. Regulatory legislation should be carefully designed.
They should never ever be an instrument to suppress opinion not palatable to the government of the day.
They must strike a balance between freedom to agitate on the one hand and protection of the society on the other. Democracy is not the freedom of a wild ass. Demand for freedom by one group should not be a denial of the freedom of a larger group of people.
Demonstrations which cause harassment to the general public should be banned. No demonstration ought to be permitted to challenge the rule of law. Conduct contemptuous of judiciary and judges should never be permitted.
The entire fabric of a democratic society depends upon Law and Order. Safety of society is the highest law.
Democracy in any society rests upon one pillar. That is the rule of law. If law and order is allowed to disintegrate and respect for the judiciary is eroded that would eventually lead to anarchy. Some freedoms such as freedom of assembly area sine qua non of a democracy.
Having said that, it must also be emphasized that unless those freedoms are regulated, a day will come when the very freedoms of the democracy will swallow the democracy itself.
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