Freedom of movement in Sri Lanka and registration of new residents in the vulnerable capital

by Sarath WIJESINGHE

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.

Freedom curbed

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.

Applicability

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.

Current situation

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 raising events.

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 abiding citizens.

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.

Way forward

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]