Anti-SAITM forces and the rule of law
BY FAIZER SHAHEID -2017-09-20With the anti-SAITM forces regularly attempting to hinder the usual traffic flow during peak hours, the Doctors and medical students appear to be heavily in need of some education. In particular, the law which they constantly keep violating.
The representatives of the Government Medical Officers' Association (GMOA) have behaved in a manner unbecoming of professionals in the last few years, openly dictating terms to the government in respect of a purely policy related decision to be taken by the government. They have repeatedly applied pressure to abolish the South Asian Institute of Technology and Medicine (SAITM), just like they managed to bring down the North Colombo Medical College in 1989. If any lessons from the past are to be learnt, it is clear these anti-SAITM forces are against private medical education as a whole and are not simply for upholding the standards they claim have been breached.
First and foremost, if standards are to be met, the medical students ought to attend lectures in order to secure a proper medical education. Behaving like thugs and boycotting lectures has somehow become the trend among the medical students of local universities. It renders the stereotype that 'doctors are well behaved' invalid. Most medical students, just as the members of the GMOA, resort to an aggressive tone when discussing the topic. They are also somehow opposed to the solution of standardizing private medical education in lieu of abolition. My attempts to find logic in this standpoint has reaped no results from the anti-SAITM forces. Usually, this is the point when they become aggressive.
The problem
Although the standard of medical education provided by SAITM has been doubted in the past, it must be noted that establishing a proper medical education system encompassing all medical standards is an expensive process that requires time. To be fair by the anti-SAITM forces, SAITM obtained its degree awarding status from the University Grants Commission (UGC) under dubious conditions in 2011.
Degree awarding status was granted in line with the former President, Mahinda Rajapaksa's vision of establishing a private medical university in order to make Sri Lanka the educational hub of Asia. The anti-SAITM forces claim that Dr. Neville Fernando had manipulated the established procedures to set up his private medical college. Irrespective of whether this is true, what truly matters in respect of the above issue is whether the medical college was legally established according to the entrenched procedures. The last time I checked, it was the role of the Court to make a decision on such matters.
While the final verdict of the case is pending, the anti-SAITM forces are persistently throwing tantrums and haggling over the outcome. The only perceivable notion one could deduce from the extravagant measures taken by the anti-SAITM forces is that they wish to coerce the government into determining a verdict against SAITM which would then render a Court ruling meaningless.
Parliament or the Courts
Despite the purported doctrine of separation of powers between the Executive (President), Legislature (Parliament) and the Judiciary, the powers are not essentially equal in Sri Lanka. In Sri Lanka, the doctrine works hierarchically where the Executive is the most powerful, the Legislature is a little less powerful, and the Judiciary merely operates as a tertiary tool for enforcing the law.
Considering that Parliament has the authority to determine policy and law, if Parliament were to decide on completely nationalizing SAITM, then there would be no need to pursue a lawsuit questioning the operation of SAITM. This is unless SAITM were to challenge the ruling in a Court of Law and the Courts resorted to issuing an injunction on the application of the law until Parliament's verdict has been made clear. Such a determination would only transpire if the Courts chose to utilize their powers of statutory interpretation and interpret the law in a manner befitting equity and justice.
There is also a possibility of challenging any policy of Parliament that would propose to shut down SAITM as a violation of human rights in the Supreme Courts, thereby effectuating the Courts powers of judicial review in accordance with Article 126 of the Constitution.
Nonetheless, should Parliament choose to enact a fresh policy on the issue of SAITM, the procedure to nullify such a policy shall only be a long shot. The GMOA and other anti-SAITM forces are aware of this, and have hence opted to coerce the government by bullying the general masses of Sri Lanka.
Anti-SAITM forces
The GMOA, Inter University Students' Federation (IUSF), and other anti-SAITM forces have resorted to swingeing measures to accomplish their objective of shutting down SAITM. Strikes have become their common mode of pressuring the government, but it is even worse when they take to the streets during peak hours to seriously cripple the traffic flow.
Not only are they trying to intimidate the government, but they are holding the general public to ransom. On 21 June, the IUSF had forcibly entered the Health Ministry even though there was a restraining order from Courts ordering them to refrain from entering any State institution. The students had other plans. Not only did they enter the premises, they broke chairs and tables and even replaced the Health Ministry boards with their meaningless posters.
The Police charged with batons and tear gas and managed to disperse the protestors. However, 85 of the protestors and 6 Police Officers were injured in the process.
In a more recent incident, the GMOA threatened to block the road with 5000 vehicles. They even had the guts to warn the general public that they would be severely inconvenienced by this. A female youth activist posted the following status on Facebook: "Called my Tuk guy ******, from Warakathenna to get myself dropped at the bus stand. He said he can't come because Dr. ****** from Dehiowita who also runs his private practice in the town is paying him Rs 4500 to join the anti-SAITM protest. My mother asked him what SAITM was. He had no freaking clue."
The names have been withheld because the author of the Facebook post requested anonymity. The post, if accurate, reveals that the GMOA will go to any length to force the government to resolve this issue.
However, thanks to swift Police action, the anti-SAITM vehicle parade was halted and the protest came to a standstill even before it had begun. The anti-SAITM forces have claimed that the Police have been continually suppressing their trade union action. The GMOA had even contemplated complaining to the United Nations Human Rights Council (UNHRC) in Geneva.
Human Rights
While trade unions certainly have the right to assemble peacefully in accordance with the Constitution in Article 13, the right can be stretched only as far as it does not breach another right. The Constitution in Article 14 (1) (b) does not interpret the term 'peaceful assembly,' but certainly lays limitations through Article 15 (3).
It must also be noted that Article 14 (1) (h) recognizes the right of movement. In the event another tries to suppress a person's right of movement, it is the responsibility of the State to protect that person's right. Therefore, if the trade unions, under the pretext of freedom of peaceful assembly are forcibly hindering traffic or movement in any way, the State has the right to halt the protest and bring them to book on the basis of public policy.
The public policy is stated in Section 138 of the Penal Code which makes it a crime if there are 5 or more members intending to cause criminal mischief by using criminal force. The crime is referred to as 'unlawful assembly.' Section 427 makes it a crime to trespass even if the intention is to protest, and Section 409 makes it clear that anyone who trespasses can be imprisoned for three months. What the anti-SAITM forces need to learn is that intention would suffice to halt their protests.
Therefore, unless and otherwise it can be proven that the action by the Police to halt the protest was completely uncalled for, any human rights application filed against the Police is likely to fail.
Authorities and force
The anti-SAITM forces had behaved like hooligans at the Health Ministry in June, and on many occasions before and after that. They have often termed the attempts of the authorities at repression as a form of suppression of their right to peaceful assembly. The anti-SAITM forces would have to learn the overarching powers of the security forces to repress their attempts to block the roads in Colombo, let alone a ministry compound.
Under the Police Ordinance, Section 55 bestows on the Inspector General of Police (IGP) the responsibility of authorizing the level of force to be used in the discharge of duties. In certain instances, the Police had been authorized to use only 'minimal force' and in other instances, the Police had been ordered to use 'necessary force.'
If the anti-SAITM forces decided that the actions of the authorities was still harsh, it may be advisable to refer them to the Code of Criminal Procedure. Section 95 to Section 97 of the Code of Criminal Procedure sets out the guidelines to disperse an unlawful assembly. Any Magistrate or Police Officer of the rank of Inspector or above can order an unlawful assembly to disperse. If they do not heed this order, the Magistrate or Police Officer mandated in law may authorize using force as is reasonably necessary.
It has often been debated whether the force to be used should be 'reasonable force' or 'necessary force.' The joining of the two implies the force need not be proportional, but sufficient to disperse the unlawful assembly. If the unlawful assembly continues to resist all reasonable action taken by the Police, the assistance of the Army, Navy, and Air Force can be sought. If nothing else works, then the law authorizes the use of military force on the unlawful assembly.
In the event a Police Officer or any other Military Officer is ensnared amid the chaos and is unable to communicate with a higher ranking official to request for orders, he or she would be authorized under the circumstances to order military force against the unruly protestors. This authorization is valid until communication is established with the authorized officials.
For any action taken by the security forces under the circumstances, the Code of Criminal Procedure protects the officials against any lawsuit. Therefore, if military action or any other action is indeed authorized against the mobs, none of the authorities may be prosecuted for it. This is unless the security forces had acted negligently and their actions had been completely uncalled for.
Conclusion
The anti-SAITM forces have on occasion even tried to dictate terms to lawyers. They have taken the law into their hands. The law must be implemented in order to ensure that mobs do not derail the progress of this country.
Many groups and trade unions have resorted to protests in the past, but seldom have there been mobs as unruly as the anti-SAITM forces. It is for such mobs that the law authorizing military force was made. Should the anti-SAITM forces seek to destabilize the usual traffic flow or hold the general public to ransom merely to strong-arm the government into giving into their demands, the law authorizing military force must be unleashed upon them. Be it doctors, medical students, or even lawyers or laymen, the law must apply to everyone unequivocally.
(The writer is a law tutor and an independent researcher of laws. He holds a postgraduate degree in the field of human rights and democratization from the University of Colombo and an undergraduate degree in Law from the University of Northumbria, United Kingdom.)
(faizer@live.com)
