New residents in the vulnerable capital
Freedom of movement:
By Sarath WIJESINGHE
[email protected]
Freedom of movement was recognized by King Asoka the Great in his
writings and edits, by Cyrus the Great in his Charter of Human Rights in
539 BC, and by the 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 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 recognised 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 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 Thero” gave new phase to the freedoms exercised by citizens on
human rights in general and to the freedom of movement in particular.
Asian values
Most current municipal and international instruments on freedom of
movement are based on these principles initiated in different eras.
Current principles have originated from great Christian principles which
are not different from Hindu, Islam or Buddhist principles in which
Asian values are based on. Surprisingly even Syria and Burma/Myanmar too
have recognised the principle though cautious in the process of
implementation. Article 12 of the African Charter on Human Rights
guarantees freedom of movement to every citizen and mass expulsion is
prevented by legislation. The military regime of Burma is found fault
with for alleged restrictions on freedom of movement though on paper
they are supposed to respect it. The Constitution of Canada contains
mobility rights in section 6 of the Canadian Charter of Right and
freedoms and the European Union guarantees the rights to free movement
within the EUs internal borders 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 high level freedom of movement and the United
States under the privileges and immunities clause the citizens of each
state shall be entitled to all privileges and immunities of citizens of
several 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
Freedom of movement, mobility or right to travel is a human rights
concept which is respected in the constitutional of numerous states, and
international instruments. It asserts that a citizen of a State in which
the citizens is present 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, who 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.
Kusumawatie 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 appellants were 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 too is the same, but not identical. 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 been converted to a sieged city due to dis-propionate
infiltration of citizens from the 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 on 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 majority of
those registered are Tamils. This process should have been conducted in
a more refined and sophisticated manner by not giving an ethnic
colouration. 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 the North and the East to live with Sinhalese in
other parts - mainly Colombo the capital which is a very encouraging
scenario, 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 the 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 new comers to Colombo proceeds smoothly.
Restrictions
The LTTE continues to maintain draconian restrictions on people
leaving Wanni. Each person exiting the LTTE controlled area has to leave
family members behind as a guarantee of his return. This process is
issued only on the day of travel, limiting the movement of civilians and
supplies. LTTE has always has placed restrictions on the freedom of
movement of civilians to escape the fighting. In 2006 in Vakari, the
LTTE tried to keep back civilians (inter-agency standing committee
report page 17) In Wanni today the last and the only remaining strategy
of the LTTE is to use civilians as a shield to prevent clearing the area
from terrorism Asia. The Director of human Rights Watch said that the
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 for in IDPs reminded”
Way forward
Freedom of movement 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
ordinary citizens.
The writer is senior solicitor, England and Wales and Chairperson,
SAARC Study Centre, United Kingdom.
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