Dilemma of protecting freedom of expression
BY Sugeeswara Senadhira
Sri Lanka is not the only country grappling with the issue of safeguarding individual liberty and freedom of expression on one hand and protecting the freedom of public mobility on the other hand. This is an issue we have seen not only in the fellow South Asian democracies such as India and Bangladesh, but also in the Mother of Democracy, the United Kingdom and self-acclaimed protector of democracy, the United States.
The latest news is from the US where more anti-protest laws are being pushed by lawmakers across the country amid the wave of mass demonstrations against Donald Trump's presidency. The moment the election results were announced there were protests against President elect Donald Trump and after he took office in January, the protests spread to most of the major cities that voted against him. Exasperated Trump decided to take tough measures to control the demonstrations against his regime. In Iowa, lawmakers have introduced a Bill that would make blocking traffic a felony punishable by up to five years in prison.
Minnesota lawmakers are pushing an anti-protest Bill that would allow cities to sue protesters in order to charge them for the cost of policing the demonstrations. In North Dakota, lawmakers have introduced a Bill that would legalize accidentally running over protesters who are blocking traffic.
The most innovative proposal came from Washington State, where lawmakers are pushing a Bill that would label protests as "economic terrorism." And in Indiana, Republican legislators have introduced a Bill that would empower Police to remove protesters blocking traffic using "any means necessary," legislation activists have dubbed the "block traffic and you die" Bill. The new Bills come as more than 200 activists are facing up to 10 years in prison on felony riot charges for protesting against Donald Trump's inauguration in Washington, D.C.
Nearer home, in India, restricting traffic while holding public assembly/ protest march etc. can be allowed under permission of State authorities as it is a subject devolved to the State Police Departments. These restrictions are not absolute restrictions as Police Department could provide alternate routes for traffic movement if they can. If Police Department can't be able to provide alternate routes for traffic movement, they generally put restrictions on public assembly.
But this Fundamental Right is not an absolute right
Under Article 19(1)(b) of The Constitution of India, All citizens shall have the right to assemble peaceably and without arms. But this Fundamental Right is not an absolute right; it is subject to reasonable restrictions in the interest of public order, decency or morality etc. The Supreme Court of India, while giving interpretation of this above Article of Constitution, said that-: The freedom of assembly can be exercised only on public land. Additionally, restrictions imposed under Article 19(3) would cover restrictions to maintain the public order, including the maintenance of traffic in the area concerned. But the restrictions can't attain the status of absolute prohibition at least in normal times.
So, restrictions made on assembly or traffic by factoring various matters like Text of Constitution of India, Supreme Court of India's orders & rules and political compulsions. Authorities' do not have permanent solution for traffic blocking by public assembly or street demonstrations in the forms of dharna or sathyagraha. Demonstrations usually are not permitted if they interfere with local law regarding obstructing traffic, which would include obstructing an intersection.
The most accepted definition of a street protest is, "An action by a group of people to show their negative or positive viewpoint regarding a public issue." Usually, a street protest is carried out in relation to a perceived grievance or social injustice. It ordinarily consists of walking in a mass march formation and either beginning with or meeting at a designated endpoint, or rally, to hear speakers. Street protest can be either nonviolent or violent, or it can begin as nonviolent and turn violent depending on circumstances.
SL toying with idea to enact new laws on public order
In Sri Lanka, the number of street demonstrations, workers' strikes and protests have reached an unprecedented level in recent times. Although there is no intellectual dialogue on this issue, it has become the talking point of the people, especially among the daily commuters to the capital city for work. Their main grievance is that the commuting time to Colombo by bus or train doubles on the days of demonstrations. As most of the commuters spend 2 to 6 hours to travel to and from, they are greatly inconvenienced when they have to wait long hours to get to their residences after work on the days of protests. They point out that the ratio of demonstrations has increased some times to 3 in 5-day working week. Furthermore, the offices and industrial units also have been badly affected by the loss of man-hours. The overall loss to the economy due to demonstrations is rather heavy.
Sri Lanka too is reportedly toying with the idea of bringing in new laws pertaining to public order management considering the inconveniences various protests on streets cause to the public.
The initiative comes in the wake of rising instances of protests blocking main roads in Colombo and other urban areas.
Law and Order and Southern Development Minister Sagala Ratnayake recently said that the government was looking into drafting a 'Public Order Management Bill,' under which the authorities could allocate a separate space for public protests."We respect the right of people to have peaceful demonstrations, but they have no right to violate others' rights. Article 14 of the Constitution should be read with the Article 15 (7) which explains the restrictions on Fundamental Rights. Article 14 has assured the freedom of speech and expression and the freedom of peaceful assembly, but at the same time Article 15 (7) states those rights should be exercised respecting the rights and freedoms of others," he said.
As he rightly said, some protests have reasonable grounds. But some are politically motivated and some stage street protests merely to get some publicity. These protests lead to heavy traffic congestion, and sometimes even ambulances carrying patients in critical conditions cannot move. This is clearly a violation of their rights. Sometimes the MPs are obstructed from coming to Parliament due to protests at the Parliament roundabout. This is a violation of the Standing Orders, Minister Ratnayake pointed out.
President Maithripala Sirisena has given instructions to examine the possibility of establishing a new unit to take advance action, as a means of preventing unauthorized street protests by trade unionists, and other organizations. This unit will be headed by a Deputy Inspector General of Police and will comprise a Senior Assistant Secretary of the Ministry of Law and Order whose main task will be the gathering of information on protests and trying to address the issues at the inception.
The President took this decision in the aftermath of receiving a report regarding the incident where disabled soldiers were dispersed by the Police using tear gas and water cannon. The unit which will have the services of the Criminal Investigations Department (CID) and the State Intelligence Service (SIS) will gather the information and co-ordinate with an Additional Secretary of respective ministries where outstanding issues need to be addressed.
President Sirisena, while acknowledging the need to prevent the harassment and grievances faced by the public due to continuous street protests and unruly demonstrations, has given strict instructions that all the steps taken in this connection should be in compliance with the Article 14 of the Constitution.
Article 14 – Constitution of Sri Lanka
Freedom of Speech, assembly, association, movement, &c.
14. (1) Every citizen is entitled to –
(a) the freedom of speech and expression including publication;
(b) the freedom of peaceful assembly;
(c) the freedom of association;
(d) the freedom to form and join a trade union;
(e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;
(f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language;
(g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise;
(h) the freedom of movement and of choosing his residence within Sri Lanka; and
(i) the freedom to return to Sri Lanka.
(2) A person who, not being a citizen of any other country, has been permanently and legally resident in Sri Lanka immediately prior to the commencement of the Constitution and continues to be so resident shall be entitled, for a period of ten years from the commencement of the Constitution, to the rights declared and recognized by paragraph (1) of this Article.
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