INTRODUCTION
Freedom of assembly is “the individual right or ability of people to come together and collectively express, promote, pursue, and defend their ideas”. It is a universally recognized human right under Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and in many other international instruments. Sri Lanka has ratified the ICCPR and the right has been reinforced by the constitution of 1978 under fundamental rights.
Freedom of assembly is a significant fundamental right and fundamental feature of the democracy. It is a strong mode of communication to express the common interest of the people. Whenever the government act against the common interest of the people, freedom of assembly is important to show the aversion of the people. English civil law, the American Revolution and French revolution are good example for it.
Although the Constitution guarantees the right to assemble as a fundamental right, it is not an absolute right. The law imposes set of limitations to protect society against dangers that may arise from the coming together of a large number of persons that may take the form of an unlawful assembly.
It is important to have a right balance of legal regulations on protection of right to assembly and protecting society from unlawful assembly. It is fundamental principle of law, exercising of right of a person should not hamper the right of another. Therefore, law has been clear on the fact the assemblies are protected only as long as it is peaceful. From the moment it causes disturbance to the public it will become unlawful and magistrate or a police officer not below the rank of Inspector of Police may disperse the assembly.
There are some legal provisions set out regulations to deal with an unlawful assembly such as in Prevention of Terrorism act, Public Security Ordinance, code of criminal procedure act. In this paper it focus only on the provisions set out in the code of criminal procedure act. It has clearly set out the manner to disperse an unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace.
Recently, the Joint Opposition staged a protest in Hambantota against leasing out the Mattala International Airport to an Indian company. Is this a lawful mode of communication to show the aversion of the people? Do all the citizens in the country could get assemble and raise their voices? Can these people assemble and react in a manner according to their discretion? Can the peace officers disperse an assembly? If it son what are powers vested with them? What laws provide such legal regulations to deal with dispersing an assembly? In the above mention assembly when police take actions to disperse the members of the assembly and at that time they have arrested 28 members in the assembly. Is this arrest is lawful? Once they arrested a youth was slapped by the Assistant Superintendent of Police. Do they have such power over an assembly? In this paper it attempts to critically examine and answer the above questions over an assembly under the following parts.
In the first part of the study it define the two key terms of freedom of assembly and unlawful assembly. In the second part it discuss the recognition of freedom of assembly under different legal instruments. In the third part of the study it discusses the importance of upholding the freedom of assembly and dispersing unlawful assembly. In the fourth part it critically examine the provisions contain in the code of criminal procedure act to deal with an unlawful assembly for the purpose of maintaining peace and order and its importance. Fourth part is subdivided as dispersal of unlawful assembly, use of civil force, use of criminal force, protection for acts done in dispersing unlawful assembly, obtaining conditional order for removal of unlawful obstruction or public nuisance. Above mention subtopics are critically examine with special reference to provisions in code of criminal procedure act, case laws and recent incidents.
PART I
Define the two key terms of freedom of assembly and unlawful assembly
According to the guidelines of the Freedom of Assembly it defines an assembly as, “the intentional and temporary presence of a number of individuals in a public place for a common expressive purpose”. And according to Jeremy McBride, Freedom of assembly is “the individual right or ability of people to come together and collectively express, promote, pursue, and defend their ideas”. In other words freedom of assembly is a mode of communication to raise the voice of the people.
The law has only been recognized the lawful assembly and it provide regulations to deal with unlawful assembly. Though the code set out provisions to deal with an unlawful assembly it does not interpret it. Whenever there is lacuna in the interpretation such terms has to been defined with reference to Penal Code. Penal Code stated that, “an assembly of five or more persons is designated is an unlawful assembly. Further it stated that such assembly is unlawful only if the common object of persons composing assembly is to topple the Government; to resist execution of a lawful order; to commit mischief or trespass; by the use criminal force deprive the public of the use of a roadway or take possession of property; by the use of force compel any person to do what he is not bound to do and train in the use of arms or practicing military movements without the consent of the President. Therefore mere assembly of five or more persons is not an unlawful assembly unless it consist with the above mention common objective.
This distinction between lawful assembly and unlawful assembly has to be clearly demarcated.
PART II
Recognition of freedom of assembly under different legal instruments
The freedom of assembly is a fundamental right in domestic law and universal law, and has been successfully utilized to expand the nature of human rights of the people. UDHR has recognized the freedom of assembly under Rule 20 and ICCPR recognized it under Article 21. It stated, “Right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” It recognized the freedom of assembly under set of limitations. Because it is essential only to recognized peaceful assembly. Any assembly with above mention common objectives would become unlawful and they are not protected by the law.
Domestic law also follow this approach in recognizing the freedom of assembly under constitution. Under Article 14(2) (b) it recognized the freedom of assembly. In Article 15 it stated that Article 14(2) (b) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or national economy. Further it specifies limitations of freedom of assembly in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society. Therefore freedom of assembly is not an absolute right.
PART III
Importance of upholding the freedom of assembly and dispersing unlawful assembly
Freedom of assembly is important to raise the voice of the people against government and also to demands their rights. In 26th of July 2016 disabled soldiers assembled and protest to alerting authorities to discrepancies the group face with regard to their pension schemes. If not for this right these unfortunate people would have no help or any way express their grievances. Therefore, it is important to uphold the freedom of assembly.
The freedom of assembly is not an outright right. In case the right were absolute, the carnage and chaos it would make could be exceptional. Imagine a situation where Anti-SAITM protesters took to the roads and started crushing the vehicles on the street or throwing stones at each passer-by. Let alone the reality, that challenging could result in violence, but the exceptionally truth that it takes put on its claim terms cause enormous disturbance of activities each day. A boundless freedom of peaceful assembly could possibly hold the whole economy of a nation at ransom. Therefore it is important to limit the right and to deal with unlawful assemblies.
PAR IV
Provisions contain in the code of criminal procedure act to deal with an unlawful assembly for the purpose of maintaining peace and order and its importance
Louise Arbour said that, “I remind the government of its international obligation to respect the right of peaceful assembly, and I remind its security forces of their obligation to use only minimum necessary force.”
In the part II of this paper mentions how an assembly get unlawful. When an assembly become unlawful it has to be disperse otherwise that will breach the peace and order of the society. It is the bounden obligation of the State to take suitable measures to disperse an unlawful assembly to preserve public peace and order. Accordingly, the Code of Criminal Procedure Act, No. 15 of 1979 lays down, with regard to the dispersal of such unlawful assembly in Chapter VIII. Now let we critically examine the sections which are dealing with unlawful assembly.
Provisions to deal with an unlawful assembly for the purpose of maintaining peace and order are set out in the Code of Criminal Procedure Act in step by step. Firstly, it set out provisions to command an unlawful assembly to disperse. Upon such command if the unlawful assembly is not disperse then it set out provisions to use of civil force to disperse such unlawful assembly. Only if assembly cannot be otherwise dispersed law allow to use criminal force to disperse such assembly. In each of these steps law has been clear on manner to use it and who can use it and on what circumstances to use it.
Dispersal of unlawful assembly
Section 95(1) given the authority to disperse an unlawful assembly or assembly which is likely to cause a disturbance to public peace. Thereby provision mention about two types of assemblies. One is the unlawful assembly and the other is assembly of five or more persons which is likely to cause a disturbance to public peace. There is a different between this two types. Former assembly is clearly unlawful and the latter is unlawful due its circumstances. For instance assembly of group of Muslim people is lawful. But if they get together and demand their rights in front of Temple of Tooth would be unlawful due the place they selected. Thereby under the provision it given the authority to disperse any of the above mention two types of unlawful assemblies. The other important aspect of this provision is on the fact that who can command to disperse an unlawful assembly. Provision has been clearly stated that Magistrate or police officer not below the rank of Inspector of Police may command any unlawful assembly to disperse. Why has been the authority to disperse an assembly is limited to particular persons? Because it is a difficult and responsible decision to be made. Freedom of assembly is fundamental right guaranteed by the constitution. Therefore, dispersing a lawful or peaceful assembly is a violation of a fundamental right. Thereby provision has been limits the authority to responsible person who has experience and knowledge in the field.
The provision further impose a duty upon the members of the assembly to disperse when they are commanded to disperse. Thereby law has given more validity to the decision taken by magistrate or police officer not below than rank of IP to disperse the assembly. Members of the assembly cannot challenge such decision at that moment as law has been clearly said members shall thereupon to disperse accordingly. By using the term shall it imposes mandatory obligation on the members to respect such decision to disperse. Later these members could challenge the decision on the legal basis by referring to Article 17 with Article 126 by claiming their fundamental rights has been violated. In 1983 Vivionne Gunawardene made an application in Supreme Court (S.C. application No. 20/83) to seek relief under Article 126 of the constitution. Court held that it was a peaceful assembly and order to disperse such assembly violated the fundamental right of the petitioner.
Use of civil force
When it became an unlawful assembly or it is likely to cause a disturbance of the public peace it may command to disperse according to the manner discussed above. But in most of the circumstances members of such assembly do not disperse on such command. Continuation of such unlawful assembly cause disturbance to public peace and order. It is a fundamental right guaranteed by the constitution to collectively express their ideas on certain things. But such right should not violate the rights of hundreds of other people. When university students gathered on the road collectively express their ideas about free education, another thousands of people get stuck on the roads unable to go to their home. Ambulances are struck on middle of the roads and members of the assembly did not even allow them to pass. Therefore, law provides provisions to deal with continuation of such unlawful assembly even after it commanded to disperse under Section 95(1) of code of criminal procedure act.
In such instance or if it conducts itself in a manner as to show a determination not to disperse law allows to use civil force to disperse assembly. Therefore, command to disperse an assembly is not always necessary if it act in manner which shows they are not going to be disperse. Therefore it given the discretion to man who in charge in that situation to decide how to react to the situation. Under any ground as stated above the magistrate or the police officer not below than rank of IP may use reasonably necessary force to disperse the assembly. By using the term may it given the discretion to parties to decide whether to use force or not. And also limits the use of force by two terms of reasonably and necessary. Therefore the civil force which is going to use to disperse the assembly must be reasonable and necessary.
What is meant by reasonable and necessary? When the members of the assembly acted in violent manner in order to disperse them to maintain public peace and order it requires some reasonable force compelling them to disperse. Otherwise they would not disperse. In most of the cases it uses water cannons and tear gas to disperse assemblers. It is considered as reasonable and necessary. Sometimes it uses rubber bullets as well. But what if it use real bullets instead of rubber bullets to disperse assembly? That will not be reasonable and also not necessary. Recently in 10th of October 2017 police fired water cannons and tear gas to disperse anti-SAITM protesters who were blocking roads in Kollupitiya. That was reasonable and necessary to preserve the public peace and order.
Also this provision allows relevant parties to get the support of any person who is not in military to disperse the assembly. Provision specifically omits getting the assistance of military personals as then it will amount to use of military force. Furthermore provision given the power to arrest members of assembly if necessary.
Use of Military force to disperse assembly
If an assembly cannot be otherwise dispersed and it is necessary for the public security that it to be dispersed, a magistrate of government agent of the district or any police officer not below the rank of Superintendent of Police may command to use military force to disperse the assembly. One notable fact of this provision is that it limited the power further to higher ranking. Although Inspector of Police may use civil force he do not have the privilege to use military force to disperse. Because the decision of using military force is a big responsible and it has to be take only in critical circumstances.
For instance military force has been recently used to disperse and arrest university students who were forcibly entered to Health ministry. And also military force had been used in the Rathupaswala incident.
When using the military force section 95(3) imposes a mandatory obligation to use as little force and do as little injury to person and property. In Rathupaswala incident dispersal was held unlawful due to this fact. Except for the self-defense it does not encourage to use military force to extend for killing members of the assembly when dispersing them.
Therefore, there is no room in our law to pursue an attack those running when dispersing a crowd and to shoot at them and in such an event the offenders has to be tried for committing the offence of murder.
Obtaining conditional order for removal of unlawful obstruction or public nuisance
When an assembly obstruct a public way it disturb the public in their day to day workings. Oliver Wendell Holmes Jr said that, “my right to swing my fists ends where your nose begins” Demand for freedom by one group should not be a denial of the freedom of a larger group of people. This principle is recognized in our law as well. When university students obstruct the road way it creates public nuisance. To deal with such situation on receiving information on such obstruction magistrate may make a conditional order to remove the nuisance.
Section 95 (1), (2) section 96 and section 98 in the code of criminal procedure act contains provisions to deal with an unlawful assembly for the purpose of maintaining peace and order.
CONCLUSION
Freedom of assembly is a fundamental right guaranteed under the constitution. But it only give protection to the peaceful assembly. It has to be distinct with the unlawful assembly. Although code of criminal procedure act set out provisions to deal with an unlawful assembly to maintain peace and order it does not define what is an unlawful assembly. Therefore it defines the term with reference to the penal code. It is important to make a clear distinct between lawful assembly with an unlawful assemble. Because unlawful assembly is a threat to the public peace and order while lawful assembly is a fundamental right. Measures should take to disperse an unlawful assembly. Code of criminal procedure act indicate the provisions to deal with an unlawful assembly. It pointed out the manner to deal with and who can command to disperse and unlawful assembly.
REFERENCE
Books
- McBride J, Freedom of Association, in The Essentials of … Human Rights (Hodder Arnold, London)
- OSCE/ ODIHR Panel of Experts on the Freedom of Assembly, Guidelines on Freedom of Peaceful Assembly (2nd edn, OSCE Office for Democratic Institutions and Human Rights, Warsaw)
Legislations
- American Convention on Human Rights
- Code of Criminal Procedure Act No. 15 of 1976
- European Convention on Human Rights
- International Covenant on Civil and Political Rights
- Penal Code of Sri Lanka
- The constitution of Democratic Socialist Republic of Sri Lanka
- Universal Declaration of Human Rights
Newspaper Articles
- Edirisuriya CT, ‘Unlawful Assembly and Revolution’ Ceylon Today (01 April 2016)
- Harshana D, ‘ Youth assaulted by Police in Hambantota transferred to Matara Hospital, Human Rights Commission Commences an Investigation’ Lanka News Papers (https://www.lankanewspapers.com/2017/10/09/youth-assaulted-police-hambantota-transferred-matara-hospital-human-rights-commission-commences-investigation/, 09 October 2017)
- Jayanaga ST, ‘Regulating Freedoms’ Daily News (13 February 2017)
- Shaheid F, ‘Peaceful Assembly affirmative action’ Ceylon Today (19 April 2017)
Website
- ‘Begins Quotes | Picture Quotes’ (Picture Quotes, 2017) <http://www.picturequotes.com/begins-quotes/13> accessed 13 October 2017
- ‘Louise Arbour Quotes’ (QuoteHD, 2017) <http://www.quotehd.com/Quotes/louise-arbour-quote-i-remind-the-government-of-its-international-obligation-to> accessed 11 October 2017 • ‘Police Use Water Cannons And Tear Gas On Anti-SAITM Protesters’ (Daily News, 2017) <http://www.dailynews.lk/2017/10/10/local/130860/police-use-water-cannons-and-tear-gas-anti-saitm-protesters> accessed 10 October 2017
