The legitimacy of uprisings

| by Dr. Ruwantissa Abeyratne

( March 06, 2012, Montreal, Sri Lanka Guardian) Forbes magazine bases itself on a recent survey conducted by its experts and concludes that Norway and Australia are in the top 10 of the happiest countries in the world along with Norway’s neighbors Denmark, Finland, Sweden. Canada comes in at 6 and New Zealand at 7. Small and civilized Switzerland and the Netherlands are also up there, with the United States at 10.

There is at least one common factor in these countries. All of them are electoral democracies. Forbes ascribes the gross national happiness of these countries to the fact that people are naturally happier when they feel that they have a say in how their countries are run. They also have abundant civil liberties - from decriminalized drugs and prostitution in the Netherlands to the right to occupy city squares in protest against prevailing financial systems in countries like the United States and Canada without the danger or risk of being shot at or hacked to death.

One is compelled to conclude, when looking at all the countries that have experienced uprisings in recent times, that they were mostly motivated by the need of the people to have a say in how their countries should be run. Consequently, many deposed were autocrats or dictators. From the Arab Spring in Tunisia, Egypt and Libya to a march in England to a police station and a protest rally in Athens where 100,000 people or more shouted against pension and pay cuts and the global day of rage, uprisings have taken various forms of anger directed at deposing existing regimes that are found to be unsatisfactory. At the present time, the uprisings going on - whether they be in Syria, Bahrain or Yemen - are again seemingly for the same reason. The sad part is that leaders of these countries as well as most of the rest of the world seem to look at things upside down, more from the perspective of their own interest rather than from in the context of the citizen’s rights. If their people do not want them and if their country is run for the people and by the people leaders should leave at the very first sign of an uprising which carries the explicit or implicit message “we do not want you any more”. Instead they send their armies to plough through and mow down their own people while the world looks on with deplorable insouciance.

Uprisings are a legitimate right of a people if they are prevented by other means (such as a fair and democratic election called at their will) from establishing their own system of government. To quell an uprising by the use of military force is as heinous as the killing of innocents under martial law. Ironically, if citizens take to the streets for no other apparent reason than to loot and plunder, the reaction is swift in bringing them to justice. As Prime Minister David Cameron correctly said during last year’s London riots: “We will not allow a culture of fear to exist on our streets. And we will do whatever it takes to restore law and order and to rebuild our communities... anyone charged with violent disorder and other serious offences should expect to be remanded in custody not let back on the streets and anyone convicted should expect to go to jail”.

Why is this principle upended in the case of military force in a State which arbitrarily and capriciously kills civilians at will if they stand up in protest against an existing regime? Dave Browning, Founder of Christ the King Community Church is of the view: “The secular uprisings of 2011 may signal a deepening longing for people to be a part of something bigger than themselves, something world-changing. As Jesus described in Matthew 9, the people are "harassed and helpless, like sheep without a shepherd."

People who are harassed and helpless, irrespective of whether they form the 99 percent of the poor of the world, or whether they are deprived of civil liberties have a right to demand change and to parade the streets if they must. They have the legal legitimacy to do so without being subject to violence. Thomas Jefferson once wrote that the purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interests of the governed, not for the governors. As Benjamin Franklin wrote, "In free governments the rulers are the servants and the people their superiors and sovereigns." The ultimate powers in a society, therefore, rest in the people themselves, and they should exercise those powers, either directly or through representatives, in every way they are competent and that is practicable”.

It is common knowledge that the words “Magna Carta” in modern parlance refers to any document or law recognizing basic rights and privileges. The words come from Magna Carta Libertatum (Great Charter of Freedoms), which is a Charter originally issued in England in 1215. It required the King to renounce certain rights, respect certain legal procedures and accept that his will could be subject to the rule of law. The Magna Carta forced King John to submit to the law and succeeded in putting limits on feudal fees and duties.

According to the rule of law, governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted in a legitimate forum such as a Parliament and adopted and enforced in accordance with established procedural steps that are referred to as due process. The rule of law is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule and is diametrically opposed to both dictatorship and anarchy. 

No one should and could be arbitrarily detained or disappear for protesting for regime change. One of the most valued tools of the rule of law remains to be the writ of habeas corpus, which is a legal action, or writ (which is a formal written order issued by a body with administrative or judicial jurisdiction such as a court), through which a person can seek relief from unlawful detention of himself or another person. Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum serves as a summons that accompanies a court order addressed to the custodian (such as a prison official) which orders that a prisoner be brought before the court, together with proof of authority, that would enable the court to determine whether that custodian has lawful authority to hold that person. The writ carries with it the mandate that if the custodian does not have lawful authority to hold the person, he should be released from custody. The prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

Civilized regimes have many safeguards for the citizen not the least of which is the right not to be penalized for exercising one’s civic rights. In the words of Abraham C.J. in the famous Bracegirdle case (1937) “Throughout the Empire the system of Government is distinguished by the predominance of the rule of law. The most obvious side of this conception is afforded by the principles that no man can be made to suffer in person or property save through the action of the ordinary Courts after a public trial by established legal rules, and that there is a definite body of well known legal principles, excluding arbitrary executive action.

The value of the principles was made obvious enough during the war when vast powers were necessarily conferred on the executive by statute, under which rights of individual liberty were severely curtailed both in the United Kingdom and in the overseas territories. Persons both British and alien were deprived legally but more or less arbitrarily of liberty on grounds of suspicion of enemy connections or inclinations, and the movements of aliens were severely-restricted and supervised; the courts of the Empire recognized the validity of such powers under war conditions, but it is clear that a complete change would be effected in the security of personal rights if executive officers in time of peace were permitted the discretion they exercised during the war, and which in foreign countries they often exercise even in time of peace”.

Why then is the civilized world dragging its feet when civilians are forced out into the streets and later appear dead or disappear forever?