Nilantha Ilangamuwa interviews Basil Fernando, Executive Director of the Asian Human Rights Commission in Hong Kong.
(April 07, New Delhi, Sri Lanka Guardian) A group of monks who were representing an organisation for the release of the retired general, Sarath Fonseka by undertaking a fast were set upon by a group of between 100-150 police, accompanied by a large group of civilians forcibly removed the monks from their place of protest. The following interview relates to the legal and human rights problems involved in this incident.
Q. Editor Sri Lanka Guardian: We have heard from the BBC Sinhala Service as well as several other media about the forcible removal of the four monks from this protest. Is such a removal legal?
Answer: A peaceful protest is the right of any citizen or, in fact, any human being. To protest peacefully is to engage in any other act, which is done peacefully. For example, if we are to eat, walk or sing we do not need anyone’s permission. It is the natural right of any human person. People have the right to express their agreement or disagreement. The people have a right to express their agreement with an individual person and at the same time they have the right to express their agreement with a state. In the same way the people have the right to express their disagreement by peaceful protest in any manner they like. The only limit in any human activity is the harm it can directly cause to others. While I have the right to eat I do not have the right to take someone else’s food. While I have the right to walk, I do not have the right to walk in such a way so as to disrupt the lives of others. While I have the right to use a knife I do not have the right to use it in order to harm others. Other than this there are no limits to the things that people can do. In the same way that people have a right to eat they also have the right to stop eating as a manner of protest. It is a very strong way of saying that something wrong is taking place in one’s society from his or her point of view. Whether that point of view is correct or wrong is not an issue. As far as that person’s actions are concerned it is based on his judgement or what is right and wrong. When someone feels that something is radically wrong in society he may show his disagreement by any means that he is capable of as long as he does not interfere in the rights of others. When a person stops eating because he wants to express his protest about something he is not interfering with anyone else’s rights. Therefore people all over the world have used fasting as a means of protest. That is a natural normal right that nobody, including the state has the right to interfere with. Therefore there is nothing in the law that would allow any police officer to prevent a person from engaging in a fast. If the officer or anybody else interferes with the fast and forcibly stops it that is breaking the law. In this instance, the officers and the senior police officers who engaged in this act of forcible removal and anyone who gave orders for this act has violated the law in Sri Lanka. In fact, they have violated a universal law. This was an act of violence on the part of the police officers who engaged in this removal, an illegal act on the part of the persons who gave orders for these policemen and those others who participated with the police, whether they were criminals or otherwise the act they engaged in was, in fact, an illegal act.
Does a criminal act in this regard has been done by the police officers engaged in this action. Those who gave orders for this act as well as those who participated.
Q. Editor Sri Lanka Guardian: Can a court make an order for such a forcible removal of a group of persons peacefully engaged in a fast?
Answer: For a court to make an order there must first be a basis in the law. Somebody must go to court and demonstrate that the people engaged in the protest are causing harm to others. If there is no illegality involved in what they do, if all they have done is to engage in a fast there is no known law on which the court can act. If there is reason for the court to act on the basis of a law the court can make an order to arrest the persons concerned and have them brought before court. The court may then proceed with action based on the illegality of the act. The courts cannot interfere without there being an illegality involved in the action. There is no evidence at all that in this particular incident there was any court order about the actions of the monks engaging in a peaceful protest being illegal or any court order which gave the police the power to remove the monks on specific allegations of any illegality. Thus, in the absence of any evidence of a court order there was no illegality involved.
Q. Editor Sri Lanka Guardian: You are speaking about a universal right to engage in a peaceful protest. Can you explain this more fully?
Answer: As you know since the beginning of democracy there have been many debates about what the citizens can do by way of legitimate protest. The principle is that the protest does not require any kind of permission; it is a natural right. The limitations only relate to the use of violence which may lead to harm to others. The debate has always been about violent and non-violent protests. Nowhere in the world has there been a challenge to the right to non-violent protest. In fact, by its very essence, a non-violent protest is considered a noble act. In the non-violent protest it is the protester that takes the pain upon himself. In fasting a person is imposing suffering upon himself by not eating. He is not engaged in any form of violence against anybody else. The whole struggle, particularly in modern times is to preserve the right to non-violent protest so that there is no need to engage in violence in order to achieve the objectives of the citizen because that citizen can achieve his rights by peaceful, non-violent means. Therefore the question of having to prove any kind of illegality for a non-violent protest is simply a demonstration of the removal of all freedoms. It is like trying to get permission to eat or something that a natural person has a natural right to do. The very fact that a non-violent protest has been violently suppressed is a question where the state violence should be discussed rather than the people who engage in the protest. What needs to shock the other citizens is the illegitimate action of the state to stop a legitimate action by the citizens and the discussion should not be about the right of non-violent protest but about the illegitimate activity of the state when it interferes with the most natural basic right of the people to do things non-violently.
Q. Editor Sri Lanka Guardian: When the citizen’s right is illegally stopped by the police, whose duty is it to protect the rights of the citizen?
Answer: In a democracy this is the role of the courts. The citizen must be able to stop illegal actions by the police or any other state agency by getting the court to intervene quickly and effectively. The problem in our country is that the effective interventions against the state by the courts have been prevented by various means. Abstractly speaking, the courts have the power to intervene. But there are so many obstacles to the interventions of the courts. First of all there must be easy access by way of well defined legal remedies. Usually, there are writs and when democracy is effective citizens have an easy way to go to court by way of these writs and get redress. However, in our system of law today this is a very difficult process. There are all kinds of procedural limitations and also tremendous delays. Even a writ of habeas corpus in Sri Lanka can take years. That is the same in the case of all writs. Extraordinary delays make legal remedies virtually useless. Even fundamental rights jurisdiction in Sri Lanka is not an effective remedy. It takes years before the court will make a final declaration. By that time politically the unscrupulous state agents and those who give orders to them have got what they wanted. For example if some years later some court were to decide that the fundamental rights of the four monks were violated by the forcible removal what is the real use of that? IN SRI LANKA THE PROBLEM IS WE HAVE NO EFFECTIVE PROTECTOR OF RIGHTS. The state can break the law and get away with it. So what is the use of the law? That is the real problem in Sri Lanka. You can do illegal things and get away with it. When the law itself has less and less meaning what is the use of talking about legality and illegality? This is the problem that the citizens must really think about.
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