Freedom of movement: Does it work both ways?

by Sarath Wijesinghe

In Sri Lanka Freedom of Movement is guaranteed under Chapter 3 of the Constitution of the Democratic Socialist Republic of Sri Lanka which gives power to invoke the jurisdiction to enforce, under Article 126 which states: that Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.

Accordingly any agreed party may invoke the jurisdiction of freedom of movement which states in Article 14 Sub Section h states as follows:

"Every citizen is entitled to the freedom of movement and of choosing his residence in Sri Lanka and the freedom to Sri Lanka," which is almost a reproduction of the relevant article of International and Historical Human right instruments, which is proof that in Sri Lanka too international standards are maintained in the human rights jurisprudence.

The landmark case on this area in Sri Lanka is the case of a lady called Kusumawathie who made an application to Supreme Court alleging infringement of her rights of free movement by forcing her back to Trincomalee from Tissamaharama, where she tried to reside for safety for a short period. She, the family and a group of Sinhala and Muslim villagers were forcibly evicted - driven away by the terrorists in Trincomalee area. Due to terrorist activities they tried to take shelter in Tissamaharama - down south where she had friends and relations. The United Political Party Political authority headed by Dr. P. M. B. Cyril, Member of Parliament and the District Minister, did not like the presence of Kusumawathie and her group of other residents from Trincomalee, seen in Tissa area and tried to dispatch them forcibly using police force back to Trincomalee.

The Sinhalese and Muslims in Trincomalee were threatened and forced to leave. Their houses were looted: inmates were killed including Buddhist monks who spoke against terror. Therefore they resisted to go back. This writer at that time was administrator of the Legal Aid Commission and General Secretary of the Bar Association of Sri Lanka who was in active practice and mooting public interest litigation and human rights issues as a practitioner personally and also representing the Legal Aid Commission in the capacity of the administrator.

This is the era the Human and Fundamental rights Jurisprudence was developing and emerging in Sri Lanka under the present constitution. The Legal Aid Commission undertook to handle the matter and this writer obtained leave to proceed from the Supreme Court in a court headed by late Justice O.S.M Seneviratne. Thereafter Dr. Colvin R. De Silva volunteered to argue the final phase of the case and the Supreme Court held that her rights were infringed and declared that she has freedom to stay in any part of Sri Lanka.

During the proceedings we never argued of 'ethnic cleansing' or racist issues. The argument is purely on law and humanitarian issues. In fact and in reality, Tamils in general are kind, peaceful and peace-loving. It is a minority of misguided fraction of fanatics who are engaged in terrorist activities. Therefore the NGOs, missions, media and those concerned on the current situation must act in great restraint and avoid making inflammatory and racially motivated statements. We believe that the legal and court system should never be used to political and racist aims. In Kusumawathie's case we were extremely careful to be strictly within the law and avoid making inflammatory remarks.

Freedom of Movement was exercised by the animal kingdom and mankind throughout their existence. When there were no borders for states, there was free movement from country to country and continent to continent and as a result the man concentrated in 'green pastures' and where there is resources and wealth in abundance. Thereafter man demarcated the boundaries on their own exorcising the naturally inherited power of survival of the fittest which is also the law of the jungle. Today this right of freedom and the identity is codified in the form of Constitutional and Human Right Law. Recognition and protection of the Freedom of Movement was first recognised by Cyrus the Great, Founder of Achmanid Persian Empire, in his charter of human rights documented in the Cyrus Cylinder in 539 BCE.

When Augustus established the Roman Empire in 27 BCE, he assumed monarchical powers over the new Roman province of Egypt and was able to prohibit senators from travelling there without his permission. However, Augustus would allow more liberty to travel at times. During a famine in 6 CE, he attempted to relieve strain on the food supply by granting senators the liberty to leave Rome and to travel to wherever they wished. This indicates the long existence of this right which today is enshrined in number of International and Local and Municipal Legislation.

In England in 1215, the right to travel was enshrined in Article 42 of the Magna Carta which states as follows:

"It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.

After World War Two, the United Nations was established for more teeth and power by replacing 'League of Nations'. The new international organisation recognised the importance of Freedom of Movement through documents such as the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966). Article 13 of the Universal Declaration of Human Rights which reads as follows:

'Everyone has the right to freedom of movement and residence within the borders of each State; everyone has the right to leave any country, including his own, and to return to his country.'

Currently, there is an issue raised by the media and some NGOs of alleged forcibly eviction of lodgers in Colombo. Though the word is being used in the media and also in the Supreme Court case filed under 177/2007 in which the judges have granted interim relief sought by two petitioners in the case filed against 10 respondents. Relief sought under the Fundamental Rights application were from (a) to (k ) in which (b) and (c) which states the relief sought, which is granted based on documents produced and submissions made on behalf of the petitioners. Relief has been granted as follows based on the documents and submissions made by the Counsel and it will be supported subsequently after filing affidavits and making further submissions. These are technicalities to follow and the interim relief sought are as follows:

B. Make an interim order directing the respondents not to take any steps to evacuate Tamil persons from Colombo or to prevent Tamil persons from entering and/or staying in any part of Colombo until the hearing and final determination of this application;

C. Make an interim order directing the 1st and 9th respondents to take steps to direct and/or other all Officers in Charge (OICs) of all Police Stations including the 2nd to 5th and 6th to 8th Respondents not to take any further steps to evacuate Tamil persons from Colombo and/or prevent Tamil persons from entering and/or staying in any part of Colombo until the hearing and final determination of this application.

Court has heard Counsel for the Petitioner in support of this application. Court grants leave to proceed for the alleged infringement of Article Nos 12(1), 12(2) and 14 (1) (h) of the Constitution. Court also grants interim relief as prayed for in prayer (b) and (c) prayer to the petition dated 08.07.2007.

This interim relief granted as an interim measure based on available documents is clearly a reflection on the independence and fearlessness of our judiciary and the high calibre of Judges in Sri Lanka. It is obviously a credit to our judiciary and the matter be noted by the NGOs and the International Community general critical and going through unusual scrutiny on Sri Lankan affairs due to vigorous anti Sri Lankan campaign by the terrorist network worldwide.

This issue has spread all over the world like wild fire via modern IT Technology which spreads news worldwide in seconds. The websites and papers worldwide are full of this news of lodgers in Sri Lanka. The damage done to the image and goodwill of the country is immense and irreparable. World community has been given unpleasant and dangerous signals. LTTE network worldwide and in 54 countries make the best use of Lodgers issue to discredit Sri Lanka and for de-proscription of LTTE in other countries. This also helps the human smuggle network to travel worldwide and claim asylum based on 'political persecution' especially in the west. United Kingdom has already, taken Sri Lanka away from the category of 'white Country' where Sri Lanka has previously categorised as a safe country for Tamil refugees to return. Now things have drastically changed. Today Tamils refugee applications are entertained in the United Kingdom.

Therefore it is time for us being Sri Lankan concerns and also as members of the Committee for International Law and International Relations to go through and see through the issues in order to present the correct picture to the world. The case is sub judice and we have no mandate to discuss the issues unless the general issues are discussed.

The tone and the expressions made in the local and international news media is extremely volatile and inflammatory. Using the phrase 'Ethnic Cleansing' is so serious under the International Law as it is unacceptable to drive away a section of an ethnic group forcibly from where they reside.

In Jaffna terrorist groups drew the Muslim community away forcibly, from Jaffna and part of East and in the East a section of the Sinhala and Muslim community too.

Thereafter there were incidents where 600 soldiers lined up and killed and the democratic Tamil leadership was completely wiped out.

For some unknown reason the NGOs or the international community found this information as unimportant and fail to fill websites and news media with these incidents.

The country is awaiting for the outcome of the case which will be as decisive as the first land mark case of Kusumawathie. According to news reports the persons who could not give a valid reason to stay were given facilities to go back to their home towns. And the allegation is that they have been forcibly taken away. Those are matters which the court will decide at the appropriate stage.

It is very interesting and important to note that in Colombo, the majority inhabitants are Tamils and Muslims.

It is unfortunate that those so called NGOs, other activists, labelled themselves as protectors of human rights and a section of local and foreign media created stories to give an impression that the entire Tamil community is asked to return to their original residences.

It is obvious that they used the issue of the 300 lodgers to disproportionately magnify the opportunity intending to achieve their secret agendas.

In the Observer where we have discussed the steps taken by Gorden Brown the Prime Minister awaiting in the United Kingdom curbed terrorism in the UK by introducing anti-terrorism laws enforcing interment and anti-terrorism Act.

UK claims to be the haven for human rights and taken as the barometer to compare the international standards. They are the laws to be as stuff and stringent or more than that of USA which experiences mass scale destruction and loss of lives due to terrorism. In Sri Lanka we are faced with the most brutal ruthless terrorist organisation in the world that is politically and financially powerful with their network in 54 countries.

Therefore Sri Lankans have an uphill task in coming into terms and to resist the strong wave of activism by the network which has somehow influenced and misdirected the NGOs and the international community.

(The writer is solicitor, Attorney-at-Law and Convenor - Committee for International Law and International Relations. email: [email protected] )