Sunday Times 2
Let’s protest; it’s our right
View(s):But guidelines are necessary not to make our demonstrations unlawful
By Nadvi Mohideen
Protesting is in. It is a cool thing to do. We have spent the past five months writing placards, going to Galle Face, making cutlets and sandwiches for protestors and going through all the latest news on our phones.
We did not want to play politics. We wanted a President who was indifferent to our suffering to give us a solution or resign. Ours was a peaceful protest but, unfortunately, it did not stay that way. Groups with other agendas hijacked our project and the resulting violence brought about damage, destruction and loss to the country.
The question now is: how do we exercise our Fundamental Right of expression by protesting in a responsible and lawful way? How do we ensure that our protests do not violate the law, leaving us liable to be dealt with by law enforcement authorities? It is vital that we realise that our rights are only as prescribed by law and that breaking the law would be counterproductive.
So let’s look at what guidelines we should follow to ensure that our protests are legal and do not descend to the level of unlawful assembly or mob violence.
The right to protest stems from our fundamental right to free expression and our fundamental right to peaceful assembly guaranteed by the United Nations Covenant on Civil and Political Rights and our constitution. However, it is clear that there is no absolute fundamental right that people can exercise regardless of other citizens or the welfare of the State. The fundamental right of a citizen to protest is under no condition unlimited and unfettered. In all countries where the rule of law prevails this is strictly confined to PEACEFUL protests.
In the UK and the US, responsible lawyers and civil rights groups issue guidelines and advise potential protestors on how to organise a protest within the universally accepted principles of the right to protest. These guidelines help protestors organise their activities and deal with law enforcement authorities. They also ensure that laws are not broken.
These are a few quotations from these guidelines.
WHAT IS A PEACEFUL PROTEST?
The US History High school guide
A peaceful protest also known as nonviolent resistance is a form of protest in which participants do not engage in any action that could be deemed violent. Participants in a peaceful protest are unarmed, they do not fight back against attempts to stop their actions and they refrain from damaging any property.
WHAT ARE YOUR RIGHTS TO PROTEST?
American Civil Liberties Union
If you take part in a protest
You may:
Distribute leaflets, flyers or other literature on your own property or on public sidewalks, parks and plazas
Picket or protest on public sidewalks, parks and plazas so long as sidewalks and building entrances are not blocked
Chant or sing protest songs on public sidewalks, parks and plazas
You may not:
Block access to sidewalks or buildings
March in the streets without a permit
Disrupt counter-protests
Engage in speech that is obscene, make knowingly false statements of fact, or that is likely to incite an immediate disruptive or dangerous disturbance
Your rights:
Your rights are strong in what are known as “traditional public forums” such as streets, sidewalks and parks. You also have the right to speak out on other public property, like plazas or in front of government buildings without interfering with other purposes the property was designed for.
WHAT ACTION ARE YOU PERMITTED
Limitations on action
Demonstrators who engage in civil disobedience — peaceful, but unlawful, activities as a form of protest — are not protected under the First Amendment and can be arrested.
If you endanger others while protesting, you can be arrested. Without a permit, a protest that blocks vehicular or pedestrian traffic is illegal.
You do not have the right to block a building entrance or physically harass people. The general rule is that free speech activity cannot take place on private property, including malls, without the consent of the property owner. You do not have the right to remain on private property after being told to leave by the property owner.
CAN YOU SURROUND A PRIVATE RESIDENCE?
It has been ruled by a US court that surrounding a private residence as a protest is illegal and therefore does not constitute a legitimate peaceful protest. As these are the precedents used universally our courts would also follow these decisions.
From the above, it is clear that guidelines are available as to what constitutes a peaceful protest and what is permissible to be considered a legitimate exercise of a fundamental right.
However, there are times when events take an unexpected turn and a protest can easily turn into unlawful assembly or riot and protestors could be arrested and remanded under the Penal Code.
WHAT IS AN UNLAWFUL ASSEMBLY OR RIOT?
In chapter viii of the Penal Code, unlawful assembly is defined as follows:
An assembly of five or more persons is designated an “unlawful assembly” if the common object of the persons composing that assembly is:
To overawe by criminal force or show of criminal force the Government or parliament or any public servant in the lawful exercise of the lawful power of such public servant.
This section goes on to elaborate on other instances of unlawful assembly which include the common object being the resistance of any law or legal process, committing any mischief or criminal trespass by show of criminal force, the takeover of property or depriving any person or the public the right of way they have enjoyed.
WHAT SHOULD YOU DO IF THE PROTEST BECOMES UNLAWFUL?
If you realise that this protest is unlawful or becoming violent and therefore a riot you should leave immediately for the law is very clear that if you know that the assembly was unlawful and you join or continue in it you would be considered a member and could face six months imprisonment or a fine or both. If you continue in an unlawful assembly which has been ordered to disperse by a lawful authority, you could face two years imprisonment.
ARE YOU LIABLE FOR OTHER PROTESTERS’ ACTIONS?
Whenever force or violence is used by the assembly or any member of the assembly to achieve the common object of the assembly every member of that assembly becomes guilty of the offence of rioting and could face a prison sentence of up to two years.
OTHER OFFENCES RELATED TO PROTESTING
Provoking a riot
Any person who wantonly or maliciously gives provocation to start a riot is guilty of an offence which carries a jail sentence of two years.
Criminal intimidation
Even if you do not take part in the unlawful assembly but use the circumstances to threaten anybody to cause injury to his person, reputation or property with the intention of causing him alarm to avoid carrying out any act which he is legally entitled to do, you would be guilty of the offence of criminal intimidation.
This becomes relevant in today’s context where electronic and digital media are used to incite people to riot.
Abetting
You could be charged with abetment of a criminal act if you have instigated any person or engaged in a conspiracy or intentionally aided by any act or illegal omission to do an act which would be an offence in Criminal Law. If a criminal act is committed as a result of the abetment you would receive the same punishment as if you committed the offence. Even if you planned to cause one effect but a different effect is caused, you would be considered liable for the different effect.
Today, protesting is becoming the tool that is being used by many factions to attain their goals. To this end, there is no hesitation to encourage citizens, especially the youth, to come out and protest. Unlike in other countries, there is no professional body or civil society or religious groups that have come forward to guide and educate young people to abstain from violence or illegal acts which would undoubtedly put them on the wrong side of the law.
Instead, those who are arrested are portrayed as martyrs subjected to brutal attacks by the army or police. This undoubtedly would lead to more youth who are ignorant of the fact that they are breaking the law and are liable to face criminal charges continuing with more protests. This is known as weaponising stupidity, a tactic used by political leaders who while inciting followers do not ever spend a night in the remand prison on their way to grab power.
While our youth are being misdirected by these “leaders” the damage to the image of the country, its economy and stability also keep mounting.
It is in this context that it becomes vital that you make every effort to become aware of your rights and the limitations to your rights as well as the legal consequences should you become embroiled in a situation that is a riot or unlawful assembly. Taking an informed decision about your planned action and the possible results thereof would make you better prepared to take steps to protect yourself to face any problems that may arise.
From the above, it becomes clear that our fundamental right to expression and assembly is limited to PEACEFUL Assembly or PEACEFUL protests. This is because we cannot infringe on another’s fundamental rights while exercising our own rights. The rationale for this is well explained as follows: Our rights culture cannot constitute us unless all rights count, and all rights cannot count if all rights are absolute.