Freedom of movement in Sri Lanka and registration of new residents
in the vulnerable capital
Concept of Freedom of Movement: Freedom of movement was recognised by
King Asoka the Great in his writings and edits, by Cyrus the Great in
his Charter of Human Rights in 539BC, and by Magna Carta in 1215 which
states" It shall be lawful to any person, for the future to go out 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 the World War II, the United Nations was established in place of
the League of Nations as a result of the aftermath destruction and
colossal loss of human lives.
The new international organisation recognized the importance of
freedom of movement through documents such as the Universal Declaration
of Human Rights and the International Covenant of Civil and Political
Rights (1966) Article 13 of the Universal Declaration which reads
"Everyone has the right to freedom of movement and residence within the
borders of each state and" "Everyone has the right to leave any country
including his own and return to his country". Article 1292 of the
international Covenant also defends this right.
United Kingdom long enjoyed high level of freedom of movement apart
from the magna carte, but various actions by the UK governing
authorities have directly or indirectly curbed freedom of movement by
road tolls, personal identity cards, and legal requirements for citizens
to register changes of addresses or partner with the state authorities.
Sri Lanka respected and recognised this concept and principle from time
immemorial. Muslims who arrived thousands of years ago were given
freedom to live, construct mosques and live in any part of the country.
Buddhism revitalised by Asoka's son Mahinda Thera heralded a new phase
of freedoms exercised by citizens in human rights in general and freedom
of movement in particular.
Most current municipal and international instruments on freedom of
movement are based on these principles initiated in different eras.
Current principles originated from Great Christian principles which are
not different from Hindu, Islam or Buddhist principles on which Asian
values are based. Syria and Myanmar (Burma) too have recognised the
principle though cautious in the process of implementation. Article 12
of the African Charter on Human Rights guarantees the freedom of
movement to every citizen and mass expulsion is prevented by
legislation. The Military regime of Myanmar is found fault with for
allegations of restrictions on freedom of movement though on paper they
are supposed to respect it. Constitution of Canada contains mobility
rights in section 6 of the Canadian Charter of Right and freedoms and
the European Union guarantee the right to free movement within the EUs
internal boarders by the EC treaty and European Parliament directive.
Under basic law of Hong Kong article 31, residents have a right to
freedom of movement within the country and Poland has some restrictions
on those holding dual nationality. Britons have long enjoyed a
comparatively a high level freedom of movement and in the United States
under the privilege and immunities clause the citizens of each state
shall be entitled to all privileges and immunities of citizens of other
states. It is respected and accepted by most of the nations, states,
governments, and international organisations though there is a vast
difference on the principle and implementation.
In Sri Lanka, the freedom of movement, mobility or right to travel is
a human rights concept which is respected in the constitution of
numerous states, and international instruments. It asserts that a
citizen of a state in which he lives generally has the right to leave
that state, travel and return to that state at any time.
This right is enshrined in Chapter III of Fundamental Rights
especially in Article 14 (1) which states that every citizen is entitled
to (h) the freedom of movement and of choosing his residence within Sri
Lanka and (i) the freedom to return to Sri Lanka.
The landmark case in Sri Lanka is the case of "Kusumawathie" who is a
resident of Trincomalee District, came to Tissamaharama, during the
disturbing era of "Indo Sri Lanka Accord". Dr P.M.B. Cyril- the District
Minister rounded up the citizens hovering around Tissamaharamaya and
steps were taken to send them back to Trincomalee. Kusumawathie and
other stranded citizens approached this writer who at the time was the
General Secretary of the Bar Association of and Administrator of the
Legal Aid Commission in Sri Lanka. This writer promptly took leave to
proceed from the Supreme Court by himself and the final argument was
handed over to Dr Colvin R de Silva who presented the case to the
Supreme Court headed by Justice Sharvananda. The Supreme Court declared
that any citizen in Sri Lanka has the right to reside anywhere in the
country and the appellant was paid substantial compensation for the
violation of their fundamental rights and the agony gone through as a
result. This is one of the initial test cases at the stage the
fundamental right jurisdiction was being tested and fast emerging with
the help of the Bar Association and the Legal Aid Commission active and
acting on public interest introducing novel strategies in the areas of
public interest litigation. This indicates how this concept is in
practice in Sri Lanka all the time.
The current situation in Sri Lanka too is the same, but not identical
and similar. The Ministry of Defence is taking swift steps to register
in their own interest and safety, with no compulsion to remove them from
Colombo which has converted to a sieged city due to dis-propionate
infiltration of citizens from North and the East in order to live with
Sinhala brethren in fear of LTTE. In the process LTTE too are sending
trained suicide cadre in order to destabilise the life of the citizens
in the capital. True every citizen has the right. But LTTE suicide cadre
is eagerly awaiting for opportunities to intermingle with the ordinary
citizens with their organised network and enormous funds raised
worldwide by drug and human trafficking and illegal trade and fund
The views and comments made on this subject by various organisations
are varied and controversial. "The Hindu" calls this "racial proffering"
as the majority of those registered are Tamils. This process should have
been conducted in a more refined and sophisticated manner by not giving
an ethnic colour. It is true that the ethnic proportion in Colombo has
changed, so that the Tamil community in Colombo has drastically changed
for the community to be the majority community. It is the freedom of the
citizens to live anywhere in the country and the Sinhala and Muslim
community in the country and the capital has accepted the reality.
Citizens flee away from North and East to live with Sinhalese in other
parts- mainly Colombo the capital which is a very encouraging phenomenon
which should be encouraged and monitored in the interest of innocent law
There are other developments in international arena as well. United
Nations Humanitarian Coordination office has urged the LTTE to allow
civilians trapped in the Island's conflicted zone to move freely. Police
say registration of newcomers to Colombo proceeds smoothly.
Restrictions of movement imposed by LTTE continues to maintain
draconian restrictions on people leaving in Vanni. Each person leaving
the LTTE controlled area has to leave family members behind as a
guarantee of their return. The instructions are issued only on the day
of travel, limiting the movement of civilians and supplies.
LTTE has always placed restrictions on the freedom of movement of
civilians to escape the fighting. In 2006 in Vakari LTTE tried to keep
back civilians in Vanni. Today the last and the only remaining statergy
of the LTTE is to use civilian as a shield to prevent clearing the area
from terrorism Asia Director of human Right Watch said that Sri Lankan
government should not treat civilians as criminals because they are
fleeing the conflict areas, while Walter Kalin the United Nations
Secretary General's representative in IDPs reminded" IDPs are entitled
the guarantee of international human rights and International
Humanitarian Law subscribed by the state. Neil Bhune the United Nations
resident representative stated that any displaced person is entitled to
freedom of movement according to international principles. They can move
where and when they want for security and safety.
The Government has been providing all humanitarian assistance to
civilians in the LTTE controlled areas, Leons Michael of the European
Commissions for Development and Humanitarian Aid has expressed his grave
concern over the escalation of the conflict in Sri Lank and the effects
on the innocent civilians.
This is a right respected and recognised worldwide with restrictions
and regulations in the interest of the majority of law abiding and
innocent civilians. Restrictions are to be implemented very carefully
and according to the accepted municipal and international norms and
principles. It is a difficult balancing exercise in a war situation when
the Government is fighting a humanitarian war against the most ruthless
and dangerous terrorist organisation in the world categorised so by the
United States Department of State in their famous reports on various
counties and organisations. But the only way out to relieve and protect
the trapped IDPs who are our brethren is to take all measures to corner
the terror and terrorism by taking effective measures to combat terror
and steps of anti human and humanitarian acts by the LTTE. It is time
the opposition and the international organisations understand the need
of the hour and help the State to bring relief to the ordinary citizens.
This writer is a senior Solicitor England and Wales, Chairperson
SAARC Study centre United Kingdom- [email protected]