Army shooting people demonstrating against contamination of ground water

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  • Legal provisions relating to deployment of Army to disperse public demonstrations

By Saliya Edirisinghe LL.B, Attorney-at-Law Background Inhabitants of a village called Rathupaswala located in the Gampaha District had found that the ground water they were using for their day-to-day living was becoming increasingly unusable. They attributed this to the discharge of industrial effluents from a factory that was manufacturing latex gloves, and wanted this factory to cease operations. The factory management denied the claim of the villagers and refused to stop the manufacturing operations. Protests by the villagers against the continuing operation of this factory gathered momentum over a period of time, and reached a point where their protests took the form of demonstrations which resulted including in the blocking of vehicular traffic at a place called Weliweriya, which is on the main Colombo-Kandy Road. It was reported that the Government took the view that the Police force was incapable of dispersing the demonstrators and decided to deploy the Army for this purpose. It was also reported that the Army alone was deployed against the protesters, and that the Army used excessive force including lethal force against the protestors, which resulted in three civilian deaths and a large number wounded with many sustaining serious injuries and possibly permanent disabilities. It has also been reported that an Army Court of Inquiry [CoI] was appointed to inquire into the conduct of the Army personnel in dispersing the protestors, and based on the findings of the CoI, three senior officers including the Brigadier who commanded the unit have been relieved of their duties, pending further consideration of the CoI findings. It appears from recent reports that the Army is relying on powers provided in Part III of the Public Security Ordinance (PSO), namely Section 12, which provides for the ‘calling out of the armed forces’, as the legal basis upon which they carried out the dispersal of the demonstrators. This brief article examines the legal provisions including the provisions contained in Section 12 (Part III) of the PSO relating to the deployment of the armed forces in the dispersal of public demonstrations. Powers granted by Part III of the Public Security Ordinance Although many people entertain the comforting thought that ‘Emergency’ is no more, a matter which is also emphasised by the government, this is only partially correct. It is true that the President has ceased to exercise emergency regulation making power (which has the force of law) provided in Part II of the PSO, where a prerequisite to the exercise of such regulation making power is the gazetting of a ‘Proclamation of Emergency’ that needs to be approved by Parliament on a month to month basis. However, what is generally overlooked is that another Part of the PSO, namely Part III of the PSO, provides the President with the power to call out the armed forces i.e. Army, Navy and Air Force on the grounds of maintaining ‘public order’ where ‘public security’ is endangered and the President is of the view that the police are inadequate (as distinguished from incapable) in maintaining public order. The President has been calling out the armed forces in respect of all 25 districts of the country even during the period when he exercised emergency regulation making power and continues to do so, which period perhaps spans the entire tenure of his presidency. The power to call out the armed forces for the maintenance of ‘public order’ is provided in Section 12 (Part III) of the PSO and the relevant portion of that Section states as follows: “12 (1) Where circumstances endangering the public security in any area have arisen or are imminent and the President is of the opinion that the police are inadequate to deal with such situation in that area, he may, by Order published in the Gazette, call out all or any of the of the members of all or any of the armed forces for the maintenance of public order in that area. (2) The members of any of the armed forces who are called out by Order made under subsection (1) for the purpose of maintaining public order in any area shall for such purpose have the powers, including the powers of search and arrest, conferred on police officers by any provision of this Part or of any other written law, other that the powers specified in Chapter XI of the Code of Criminal Procedure Act [Chapter XI makes provision for the investigation of offences]: (proviso to this section) …” [Sub-sections (3) to (7) are not relevant to this discussion] The order calling out of the armed forces under Section 12 of the PSO is valid for a month at a time but does not need parliamentary approval contrasted as when the President exercises emergency regulation making power under Part II of the PSO. The order ‘calling out the armed forces’ relevant to the time of dispersing the demonstrators at Weliweriya on 01 August 2013 was the order made on 3 July 2013 and published in the Gazette Extraordinary No. 1817/31 on 3 July 2013. The continuous calling out of the armed forces in all 25 districts on a monthly basis up to the present has somehow not received any notable condemnation, and perhaps a greater attention to this might have avoided the ‘Weliweriya’ debacle. What was the legal justification to call out the armed forces in the District of Gampaha (or for that matter in the other districts as well) on a continual basis even after the decimation of the Liberation Tigers of Tamil Eelam and the claim of the Government that terrorism has been defeated and normalcy restored? Was there actual or imminent danger to public security where it was necessary to call out the armed forces to maintain public order in all 25 districts of the country? Has the opposition been remiss in not opposing these continuous orders ‘calling out the armed forces’ in all 25 districts of the country? Why did the Government not resort to the legal provisions available under the normal law, where there is express provision to deploy the armed forces when the Police are incapable of dispersing ‘unlawful assemblies’? The Weliweriya demonstration as alleged by the Government would fall into the category of an ‘unlawful assembly’. Legal provisions under the normal law including provision for use of armed forces to disperse unlawful assemblies The legal provisions authorising the use of the armed forces to disperse unlawful assemblies – unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace – is contained in Sections 95 and 96 of the Code of Criminal Procedure Act No. 15 of 1979, and their salient features are as follows. Section 95 contains three sub-sections (1), (2) and (3): Any Magistrate or police officer not below the rank of Inspector “may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace to disperse, and it shall thereupon be the duty of the members of such assembly to disperse accordingly” (emphasis added). If such assembly does not disperse, the Magistrate or the Inspector (or a higher officer as the case may be) is authorised to disperse such assembly by the use of such force as is reasonably necessary, and may require the assistance of persons other than members of the armed forces for such dispersal. However, if such assembly cannot be dispersed by the above actions, and it is necessary for the public security that it should be dispersed, a Magistrate or the Government Agent of the District or any police officer not below Superintendent of Police may cause such assembly to be dispersed by the use of military force, but in so doing, the armed forces should “use as little force and do as little injury to person and property as may be consistent with dispersing the assembly and arresting and detaining such persons”. (emphasis added). Section 96: When public security is manifestly endangered by any assembly as described in Section 95, and when a Magistrate, the Government Agent or a police officer of the rank of Superintendent of Police or higher cannot be communicated with, any commissioned officer of the armed forces may disperse such assembly by the use of military force. However, while dispersing such assembly it becomes practicable for the commissioned officer to communicate with any of the aforesaid judicial or civil officers, such commissioned officer shall do so, and thereafter, obey the instructions of that officer as to whether to continue or not with the dispersal action. It would be seen from the above provisions that the legal responsibility for deploying the armed forces to disperse demonstrators on the basis that they constitute ‘unlawful assemblies’ rests with judicial or civilian authorities, and it is specifically directed that in dispersing such assemblies, as little force and as little injury to person and property be caused as consistent with dispersing the assembly. These are important legal provisions designed to protect the life, limb and property of persons. The armed forces may be used to disperse public demonstrations on the basis that they constitute ‘unlawful assemblies’ only as a last resort after all other means have shown to be ineffective, and in any event, under the direction and oversight of judicial or civil authorities . This is rightly so because when a military that is physically and mentally trained and equipped to destroy an armed enemy is employed to disperse civil demonstrators, it is imperative that judicial or civil authorities should oversee its actions to ensure that ordinary citizens who are demonstrating to express their grievances are not treated like an enemy which is trying to destroy the armed forces of this country. Especially in the post-war situation, the government should refrain from using the armed forces to disperse civil demonstrations because the experience and the mindset of the armed forces coming out of several years of fighting a ruthless armed terrorist group will not be conducive to dealing with what are purely civil demonstrations. Concluding comments Did a situation endangering public security exist in Weliweriya on 01st August 2013 where the police force was inadequate to deal with the situation and therefore required the deployment of the army under Section 12 of the PSO? If so, what were the inadequacies of the police and who evaluated the inadequacies and who decided to employ only the army? Was the evaluation and/or the need assessment irrational and unlawful? Was deploying only the army in the given circumstances contrary to Section 12 of the PSO? Was the military force used on the demonstrators disproportionate and unlawful? How did the army treat the injured and fallen demonstrators and did the army dispatch or cause to be dispatched immediately to hospital the injured demonstrators? Were all non lethal methods of crowd dispersal used and found to be ineffective to have resorted to the use of live ammunition on the demonstrators? What punishments will be visited upon persons found guilty? These are some of the questions to which clear and immediate answers are required, and the people of this country are waiting… It must be pointed out that the failure to follow the procedure established by law in regard to the dispersal of demonstrations or the resort to an inappropriate legal provision for the dispersal of demonstrations is a violation of the protection of the law guaranteed by Article 12(1) of the Constitution. Furthermore, the failure to provide or facilitate the provision of medical assistance, or the prevention of medical assistance to the injured demonstrators, constitutes ‘cruel and inhuman treatment’ prohibited by Article 11 of the Constitution. Furthermore, such wrongful conduct also constitutes violations of the rights guaranteed under International Human Rights Law for which Sri Lanka can be held accountable.