044-SLLR-SLLR-1996-V-2-RAHUMA-V.-BERTY-PREMALAL-DISSANAYAKE.pdf
RAHUMA UMMAV.
BERTY PREMALAL DISSANAYAKE
SUPREME COURT.
GP.S DE SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
SC. APPLICATION NO. 120/95.
29TH DECEMBER 1995 AND 15TH JANUARY, 1996.
Fundamental Rights- Articles 14(1) (a) and 14(1)(b) of the Constitution -Executive or administrative action – Article 126 of the Constitution – Liberalor purposive approach.
The Petitioner the Principal of a school had arranged a function at theschool for the opening of a newly constructed building for the school and forawarding prizes to students. The Chief Minister and the Minister of Educa-tion of the area had been invited to be the Chief Guest. The Petitioner com-plained that before the function commenced the 1st, 2nd and 3rd Respond-ents arrived in the company of 4th to 6th Respondents who were PoliceOfficers and disrupted the meeting by pulling down the pandol put up towelcome the Chief Minister.The 1st Respondent is a Member of Parliamentfor Anuradhapura and the Deputy Minister of Industries. The 2nd Respond-ent is a former member of Parliament and the 3rd Respondent is a Memberof the Provincial Council, North Central Province. Thereafter the 1st Re-spondent himself presided at the function, gave away the prizes and left themeeting. The 1st Respondent also made an entry in the log book of theschool directing the Deputy Director of Education to investigate the Petition-er's conduct engaging in political activities within the school. The 1st Re-spondent's position was that he visited the school on a request for interven-tion made by the 2nd Respondent, to prevent a breach of the peace.
Held:In considering whether the impugned acts constitute "executive or admin-istrative action" within the meaning of Article 126, a liberal or purposiveapproach should be adopted; accordingly the acts of a public officer actingunder colour of office would constitute ‘ executive or administrative action"even if they involve abuse of power or exceed the scope of his authority.
Cases referred to:
Velumurugu v. A.G. Fundamental Rights decisions Vol. 1 180, 224.
Sunanda Deshapriya and another v. Municipal Council Nuwara-Eliyaand Mayor of Nuwara Eliya S.C. Application No.884/92 S.C. Minutesof 10th March 1995.
Upaliratne and Others v. Tikiri Banda and Others (1995) 1 Sri L.R.165.f
Mohamed Falz, Wild Life Ranger v. A. G. S.C. Application No. 89/91
S.C. Minutes of 19th November, 1993.
Preliminary objection to maintenance of fundamental rights application.
D.S. Wijesinghe, RC. with Ajith Wijesurendra for Petitioner.
Faisz Musthapha, P.C. with Dr. J. Wickremaratne, N.M. Saheed anciMahanama de Silva for 1st, 2nd and 3rd Respondents.
Kolitha Dharmawardena, S.S.C., for 4th to 8th Respondents.
Cur.adv.vult.
8th March, 1996G.P.S. DE SILVA, C.J.
Mr. Musthapha for the 1st, 2nd and 3rd Respondents raised thepreliminary objection that the complaint of the Petitioner does not fallwithin the meaning of the expression "executive or administrativeaction" in Article 126 of the Constitution. We invited Mr. D.S. Wijesinghefor the Petitioner and Mr. Musthapha for the 1st, 2nd and 3rdRespondents to make their submissions in writing on the preliminaryissue of liability. This is the only question that presently arises forconsideration before us.
The Petitioner who is the Principal of the Muslim Maha Vidyalaya,Kekirawa, complains in her Petition that her fundamental rights offreedom of speech and expression and of peaceful assemblyguaranteed by Article 14(1 )(a), and 14(1 )(b) have been violated by theRespondents. The 1st Respondent is the Member of Parliamentrepresenting the Anuradhapura electoral district and is presently theDeputy Minister of Industries. The 2nd Respondent is a formermember of Parliament who represented the Anuradhapura electoraldistrict. The 3rd respondent is a member of the Provincial Council ofthe North-Central province. The 4th to 6th Respondents are PoliceOfficers attached to the Anuradhapura Police Station.
The Petitioner avers in her Petition that arrangements had beenmade to have the formal opening of a newly constructed building forthe school on 13.3.95. It had also been decided to have a meeting ofthe students, parents and well-wishers of the school at the school hallon the same occasion; in addition there was to be a prize giving toaward prizes for the scholarship winners of the school. Mr. G.D.Mahindasoma, the Chief Minister and Minister of Education of theProvincial Council of the North Central Province and other officersattached to the Divisional Education Office at Kekirawa were amongstthe invitees. These events were scheduled to be held at 3 p.m. thatday.
According to the Petitioner, events took an unexpected turn. Whilethe final arrangements for the formal ceremonies were being made atthe school, at about 12.30 p.m., large crowd of persons led by the 1stRespondent and Police officers in uniform suddenly invaded the schoolpremises and proceeded towards the Petitioner's office. The 1stRespondent was accompanied by the 2nd and 3rd Respondents aswell as the 4th to the 6th Respondents.The pandol at the entrance tothe school which was put up to welcome Mr. Mahindasoma, (ChiefGuest), was pulled down by the crowd.The 1st Respondent enteredthe Petitioner's office and occupied her chair and demanded the LogBook of the school. He then made an entry in the Log Book andthereafter proceeded towards the new building, cut the ribbon whichwas meant to be cut at the formal opening by the Chief Minister. The1st Respondent along with the other Respondents thereafter enteredthe new building, directed the persons present to assemble at the schoolhall where the meeting and the prize giving were scheduled to be held.The 1 st, 2nd and 3rd Respondents got on to the stage, directed thatthe prizes which were to be awarded to be brought onto the stageand proceeded to make speeches and distribute the prizes.Thereafter,the entire group of persons "helped themselves to the refreshmentsthat were kept in one of the rooms." Having thus completed the eventsthat were scheduled for 3.p.m., the 1st, 2nd and 3rd Respondentsaccompanied by the 4th to 6th Respondents left the school premisesat about 1.30 p.m.
The Petitioner complains that as a result of the "mock" eventsthat took place, she was deprived of the right to hold the meeting atthe school premises and to address the students, staff and well-wishersof the school, as previously arranged.
The position of the 1st Respondent may be summarized as followsAccording to him, on the 13th March 1995 at about 11 a.m. the 2ndRespondent had informed him that there could be a serious breach ofthe peace at the school premises and sought his intervention in thematter. Thereupon the 1st Respondent along with the 2nd and 3rd Re-spondents had visited the school around 12 noon.The 1st Respondentstates that he observed a large group of persons in the school premisesand "there appeared to be tension." He had noticed that the schoolpremises had been decorated only in green flags and banners of apolitical nature. The 1st Respondent along with 2nd and 3rd Respond-ents had met the Petitioner at her office and had "clearly indicated toher that it was not proper to have party politics in school affairs." It isthe position of the 1 st Respondent that he participated at the openingceremony of the building and at the "prize giving" at the invitation ofthe Petitioner herself and the purpose was to diffuse the prevailingtense situation. Moreover, the Petitioner admits that he made an entryin the Log Book.
The contents of the entry made in the Log-Book (P4) are not withoutrelevance. In the log-entry the 1 st Respondent had directed the DeputyDirector of Education, Kekirawa, to investigate and report to him (1stRespondent) the conduct of the Petitioner who is engaging in politicalactivities within the school premises.
The principal submission of Mr. Musthapha was that "even if thePetitioner's version is totally believed it is clear that the 1 st Respondentdid not have even a vestige of authority as far as the school isconcerned. The alleged acts were not even remotely related to theoffice of Deputy Minister of Industrial Development. As member ofParliament the 1st Respondent had no executive authority at all
The 2nd Respondent is only a former member of Parliament.
His actions are that of a private person.The 3rd Respondent is a memberof the North Central Provincial Council. He is a member of the oppositionin the Council. It is clear that he too has no executive authority." Whileconceding that a public officer can be held liable when acting undercolour of office. Mr. Musthapha contended that "this doctrine willnot apply where a public officer acts totally without jurisdiction andhas no vestige of authority0. And the argument was that the 1stRespondent who was the Deputy Minister of Industrial Development"had no authority whatsoever in relation to the administration of theschool."
In considering the preliminary objection, it seems to me that thecorrect approach to be adopted was lucidly and cogently expressedby Sharvananda, J., (as he then was) in his dissenting judgment inVelmurugu v. A.G. and Others "In view of the vital nature of thisconstitutional remedy, it is in accord with the aspirations of theConstitution that this court should take a liberal view of the provisionsof Article 126, so that a subject's right to the remedy is in no mannerconstricted by finely spun distinctions concerning the precise scopeof the authority of State Officers and the incidental liability of the State
If the State invests one of its officers or agencies with power
which is capable of inflicting the deprivation complained of, it is boundby the exercise of such power even in abuse thereof; the official positionmakes the abuse effective to achieve the flouting of the subject's
fundamental rightsThe idea underlying Article 126 is that no
one by virtue of his public office or position should deprive a citizen ofhis fundamental rights without being amenable to Article 126, eventhough what the official did constituted an abuse of power or exceededthe limits of his authority.This sweep of State action, however, will notcover act of officers in the ambit of their personal pursuits, such as
rape by a police officer of a woman in his custody.such acts
has no relation to the exercise of the State power vested in him. Theofficer has taken advantage of the occasion, but not his office, for the
satisfaction of a personal vagary*. It is well to bear in mind
that the court was here dealing with the conduct of a police officer inrelation to an allegation of the infringement of Article 11. What isrelevant for present purposes and what needs to be stressed is thatSharvananda, J. adopted a liberal and "purposive'' approach, inconstruing the expression "executive or administrative action" in Article126.
A decision which has a direct bearing on the issue before us is thejudgment of Fernando, J., in Sunanda Deshapriya and Another v.Municipal Council, Nuwara Eliya and the Mayor of Nuwara Eliya(2).
This was a case where the editor and proprietor of the newspaper"Yukthiya0 complained that their fundamental right guaranteed by Article14(1)(a) was infringed by the 2nd Respondent, the Mayoress of theNuwara-Eliya Municipal Council. The case for the Petitioner very brieflywas that the 2nd Respondent came to the newspaper stall which wasnear the entrance to the park on 10.10.92. at about 11 a.m. and forciblytook away the copies of the “Yukthiya” which were in the stall at thattime.The stall was owned by the Municipal Council of Nuwara Eliya. Itwas the position of the 2nd Respondent that it was her practice to tourthe town accompanied by the officials "to ensure that the town waskept in a clean and sanitary condition". The 10th of October was oneof those days when she was engaged in a tour of the town. She wentto the stall to buy a newspaper and observed that the stall was not ina clean condition. She directed the occupant of the stall to clean upthe place. She denied the seizure of the newspapers. The finding ofthe court was that she did seize the newspapers on that occasion. Onthe critical question whether the seizure was by executive oradministrative action, Fernando J., expressed himself thus : –
“ I hold that the 2nd Respondent did seize 450 copies of "Yukthiya"on 10.10.92; that she did so while purporting to exercise herfunctions and while acting under colour of her office, as
Mayoress of the Nuwara Eliya Municipal Council. The seizurewas therefore by executive or administrative action." (Theemphasis is mine.)
As rightly submitted by Mr. Wijesinghe, Counsel for the Petitioner,the Mayoress had no official function whatever to perform in respectof the sale of newspapers at the stall. What is more, the seizure of thenewspapers was in no way related to the office she held. Nevertheless,the finding was (rightly in my view) that she was "acting under colourof her office as Mayoress of the Nuwara Eliya Municipal Council". Thedecision in this case therefore runs counter to the submission of Mr.Musthapha that the doctrine of "acting under colour of office" does notapply where a public officer acts totally without jurisdiction and has novestige of authority".
In support of his submissions Mr. Musthapha relied also on thefollowing passage in the judgment of Amerasinghe, J. in Upaliratne
and Others v. Tikiri Banda and Others!3'"when a public officer
takes acts relating to his office, those actions should be considered tobe executive action even if they exceed the scope of his authority, forhe acts under colour of his office", Mr. Musthapha emphasized thewords "relating to his office". This part of the judgment refers to theconduct of the first Respondent who was the Co-ordinating Secretaryto “Hon, Colonel Anuruddha Ratwatte, M.R, and Minister of Irrigation,
Power and Energy and Deputy Minister of Defence"The finding of
the Court was that in all the circumstances "it seems more probablethan not that Mr. Tikiri Banda (i.e. the 1st Respondent) played a key-role in the unlawful eviction of theTime Keepers who were members ofthe Central Bus Workers Co-operative Society and in placing otherpersons in substitution." (at page 185) His conduct had no relationwhatever to any matter pertaining to the subjects of Irrigation, Power,Energy and Defence. This was a dispute which concerned the TransportMinistry of the Central Provincial Council and the Central ProvincePrivate Bus workers Co-operative Society. Nevertheless the court heldthat he was acting under "colour of his office". When the judgment isread as a whole in the light of the established facts, it seems to methat this case too does not support Mr. Musthapha's contention. Onthe other hand, it is in accord with the view taken by Fernando, J., inW.M. Sunanda Deshapriya'scase {supra).
Finally, the answer to Mr. Musthapha's contention that the acts ofthe 2nd and 3rd Respondents are acts of private individuals (andtherefore does not fall within the provisions of Article 126) is found inthe reasoning of Fernando, J. in his judgment in Mohamed Faiz, WildLife Ranger v. A.G.,W "Article 126 speaks of an infringement byexecutive or administrative action; it does not impose a furtherrequirement that such action must be by an Executive Officer. It followsthat the act of a private individual would render him liable if in thecircumstances that act is 'executive or administrative'. The act of aprivate individual would be executive if such act is done with theauthority of the Executive; such authority transforms an otherwisepurely private act into executive or administrative action; such authoritymay be expressed, or implied from prior or concurrent acts manifestingapproval, instigation, connivance, acquiescence, participation, and thelike"
For these reasons the preliminary objection is overruled.RAMANATHAN, J. -1 agree.
KULATUNGA, J. – I concur with the order proposed by my Lord theChief Justice, in particular for the reason that as a matter of principleit is necessary to decide the preliminary objection in the light of theparticular facts and circumstances of the case and in a manner thatwould advance fundamental rights.
In the instant case, the acts complained of were done by the 1stand 3rd Respondents, a Deputy Minister and a member of the NorthCentral Provincial Council respectively, each of whom has the statusof a public authority. The 4th to 6th Respondents provided them withsecurity. They acted under colour of office. Hence the overall pictureis that the acts complained of constitute "executive or administrativeactions" within the meaning of Article 126(1) of the Constitution.Judge of the Supreme Court.
Preliminary objection overruled