042-SLLR-SLLR-2002-3-WIJERATNE-v.-VIJITHA-PERERA-SUB-INSPECTOR-OF-POLICE-POLONNARUWA-AND-OTH.pdf
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Wijeratne v. Vijitha Perera, Sub-Inspector of Police,
Polonnaruwa and Others
319
WIJERATNE
v.VIJITHA PERERA, SUB-INSPECTOR OF POLICE,POLONNARUWA AND OTHERS
SUPREME COURTFERNANDO, J.,
GOONEWARDENA, J. ANDWADUGODAPITIYA, J.
SC APPLICATION NO. 379/93JANUARY 10, 1994
Fundamental Rights – Peaceful picketing for advancement of workers’ conations- Leaflets in aid of agitation – Seizure of leaflets – Arrest and detentionof petitioner – Constitution, Articles 13 (1) and 13 (2) and Article 14 (1) (a), (b)and (c).
The petitioner, a casual worker since 1984 working within the Cultural Trianglewas the secretary of a branch of the trade union of workers employed in theAlahena Pirivena Project. The petitioner took a leading part in arranging anon-violent picketing campaign for the lunch interval on 06. 08.1993 to agitatefor a better salary and conditions of service. He received from the parent unionposters for display at the picketing.
On the evening of 04. 08. 1993 the 1st respondent Sub-Inspector of Police actingon the direction of the 2nd respondent officer-in-charge of the police stationsearched the petitioner’s house without a search warrant or the petitioner’s consentand seized all the posters. According to a belated affidavit by the president ofa rival trade union, the petitioner’s union was getting ready to disrupt the projectsite by inciting the workers which was an attempt to topple the government. Thisinformation was alleged to have been given to the 2nd respondent.
After the search and seizure of leaflets, the 1st respondent directed the petitionerto go to the police station where he was detained until his release on the noonof the next day with a threat against the proposed display of posters.
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Held :
The 2nd respondent had not received any information from the informantregarding the alleged disruptive event.
The petitioner was not given any reason for the search of his house andthe house was searched without the petitioner's consent or lawful authority.
The posters were unlawfully seized and detained in police custody andthey contained nothing subversive, criminal or otherwise objectionable. The1st and 2nd respondents thereby infringed the petitioner’s rights underArticle 14 (1) (a), (b) and (c) of the Constitution.
The petitioner was unjustifiably arrested and detained by the 1st respondentwith the approval and acquiescence of the 2nd respondent.(Goonewardena, J. dissenting on Article 13 (2)).
The 1st and the 2nd respondents infringed the petitioner's right under• Articles 13 (1) and 13 (2) of the Constitution.
Per Fernando, J.
“Dissent, or disagreement manifested by conduct or action, is a cornerstoneof the Constitution . . . Democracy requires that not merely that dissent betolerated, but it be encouraged and the obligation of the Executive is expresslyrecognized by Article 4 (d), which therefore requires that the police not merelyrefrain from suppressing lawful dissent but also that they “respect, secure andadvance”, the right to dissent.”
Cases referred to :
West Virginia State Board of Education v. Barnette – (1943) 319 US 624,641.
Amaratunga v. Sirimal – (1993) 1 Sri LR 264.
Bandara v. Premachandra – (1994) 1 Sri LR 331.
Faiz v. The Attorney-General and Others – (1995) 1 Sri LR 372.
APPLICATION for relief for infringement of fundamental rights.
A. A. de Silva for petitioner.
D. P. Kumarasinghe, Deputy Solicitor-General for respondents.
Cur. udv. »ult.
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Wijeratne v. Vijitha Perera, Sub-Inspector of Police,
Polonnaruwa and Others (Fernando, J.)
321
March 02, 1994FERNANDO, J.
The petitioner alleges that the 1st and 2nd respondents (aSub-Inspector of Police, and the Headquarters Inspector, respectively,of the Polonnaruwa Police) had violated his fundamental rights, byarrest and detention contrary to Article 13, and by the unlawfulrestriction of his freedoms of speech and expression, peacefulassembly, and association, contrary to Article 14 (1) (a), (b) and (c).
The petitioner says that he is a person of good character, a Justiceof the Peace, and the President of the Gramodaya Mandalaya, andhas never been involved in any illegal or violent act. At the relevanttime, he was among about 2,500 workers employed on a casual basison six projects, within the Cultural Triangle, under the Central CulturalFund established by Act, No. 57 of 1980. About 300 of these workers,including the petitioner, were employed in the Alahena PirivenaProject. The majority of the workers were members of a registeredtrade union, and the petitioner was the secretary of the branch unionat the Alahena Project. The casual workers received a daily wageof Rs. 78 of which half was paid in food stamps.
In 1993 a salary increase of 30% and a special living allowanceof Rs. 600 per month was given to all public sector employees,including employees of the Central Cultural Fund, but not to the casualworkers even though they had been employed for some years. Quitenaturally, the parent trade union made representations to themanagement and several discussions were held with the Director-General of the Fund. These were fruitless. The parent union tooka decison to draw the attention of the public to the plight of theworkers by displaying at all Project sites printed posters containingtheir demands; “Increase Salaries”, “Grant Permanency of Employ-
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ment”, and “Abolish the System of Contract Employment”. This wasto be a peaceful, non-violent, picketing campaign at the worksite; nostrike was intended and, indeed, to avoid any disruption of work theprotest was scheduled for the lunch interval on 06. 08. 1993; theauthorities of all six Projects were informed. About 300 posters printedin Colombo were sent by the parent union to the petitioner.
In their affidavits both respondents state that the 2nd respondenthad received information that some employees were planning “tocreate disturbances under the guise of a picketing campaign”; theymake no mention of violence, strikes or overthrowing the Government.The 2nd respondent does not reply to or deny these averments, whilethe 1st respondent pleads ignorance (apart from admitting the posterand its contents). Had they made any investigation into the incidentin question, either contemporaneously or later, I would have expectedsome positive assertion as to most of these matters. They haveproduced, however, an entry from the Daily Information Book, madeat 19:35 of 04. 08. 1993, to the effect that the 1st respondent asdirected by the 2nd respondent, was proceeding with four otherofficers, with weapons, to search the houses of two individuals (notidentified in anyway), in view of the “information” (not particularized)received by the 2nd respondent. The name of the alleged informantand his information was disclosed only in an affidavit obtained (fourweeks after leave to proceed was granted) for the purpose of thisapplication. The alleged informant was the president of a rival tradeunion, which had also made representations regarding terms andconditions of employment; he alleges that on or about 01. 08. 1993,the petitioner requested the support of this union for a picketingcampaign planned for 06. 08. 1993, indicating that this campaignwould commence with the display of posters and might developinto a strike; he thereupon expressed his disapproval. Later he receivedinformation (source unspecified) that the petitioner’s union was getting
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ready to cause disruption at the Project site by inciting the workersand the public, and had obtained posters for this purpose. Being ofthe view that this was a course of action which might provoke anattempt to topple the Government, he caused information to beconveyed to the 2nd respondent. No reason has been suggested forthe failure to record a statement from this informant on 04. 08. 1993or thereafter. Had information of this nature actually been receivedby the 2nd respondent on 04. 08. 1993, it is most unlikely that hewould have failed to cause a proper record to be made; I hold thatthe 2nd respondent had not received such information from thisinformant.
It is common ground that an armed police led by the 1strespondent came to the petitioner’s residence at about 9.00 p.m. on
08. 1993 and wanted to search his house. When he asked the1st respondent whether there was a search warrant, he was askedto shut up; in addition to a general denial; the 1st respondent merelystates that he explained to the petitioner “the reason why he wantedto search [the] house”. What that “reason” was, is not set out eitherin the affidavit or in the petitioner’s statement recorded later that night.The respondents do not claim to have had a search warrant or tohave obtained the petitioner’s consent. I hold that the petitioner wasnot given any reason for the search, that his consent was not obtained,and that his legitimate query as to whether there was lawful authorityfor the search was rudely brushed aside.
The learned Deputy Solicitor-General was unable to cite any legalprovision which authorised or justified this forcible search of thepetitioner’s house.
The petitioner says that the Police found the 300 posters; the1st respondent says, 175 printed and 20 handwritten posters.Admittedly, however, all the posters found were seized and taken
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away. There could have been no doubt that the twenty odd wordson the posters related only to the workers’ demands, and just oneminute would have sufficed to convince anyone that they containednothing subversive, criminal or otherwise objectionable. While notdenying that the posters were taken away despite the petitioner’sprotests, the 1st respondent claims that he directed the petitionerto come to the Police Station the following day, and to meet the2nd respondent and remove the posters. This assertion is consistentonly with his having known all along that there was no reason todeprive the petitioner of the posters. The learned Deputy Solicitor-General was forced to concede that the removal of the posters wasquite unjustified, and that even if the 1st respondent had entertainedany doubt, he could have taken just one to show his superiors. Thepetitioner further alleges that the 1st respondent threatened that ifany such poster was displayed as planned, the petitioner and theworkers responsible would be remanded for 14 days; that he wasarrested and detained at the Police Station till 12 noon the next day;and that at the time of release the 2nd respondent made similarthreats. The respondents deny arrest, detention and threats. Theyclaim that the petitioner came to the Police Station, met the 1strespondent, and “was produced before the 2nd respondent”; that the2nd respondent “warned the petitioner not to create any disturbancesand that he could carry on a picketing campaign peacefully”, and askedhim to remove the posters, but that the petitioner did not. Althoughthe 1st respondent says that he recorded the petitioner’s statementat 21:15 on 04. 08. 1993 and although he made an entry at 23:00when he handed over the seized posters to another officer, he madeno reference to this “direction” to the petitioner to remove the postersthe next day. Nor, apparently, was any entry made when the petitionerallegedly refused to take the posters when the 2nd respondent askedhim to do so. On 09. 08. 1993, the parent union complained to theIGP (with copies to the DIG, NCP, and SP, Polonnaruwa) giving the
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petitioner’s version, in particular that threats were made, that theposters were still in Police custody, and that all this was done in orderto disrupt the picketing campaign; and requested an inquiry. Therewas no reply, denying the petitioner’s version; and the respondentsdid not in their affidavits, give any explanation regarding the seriousallegations in that complaint.
I, therefore, hold that the posters were unlawfully seized andretained in police custody, against the petitioner’s wishes. Thissuggests that the respondents intended to hinder the petitioner’splanned protest. Having regard to the hich-handed manner in whichthe petitioner’s residence was searched, > nd his property unlawfullyseized, in order to obstruct that protest it is probable that therespondents did threaten the petitioner with remand if he went aheadwith his protest.
In consequence of all this, the petitioner says, he and othermembers of the union, through fear, decided not to hold the picketingcampaign scheduled for lunch time on 06. 08. 1993 or to prepareor display any posters or placards.
Article 14
The facts disclose a grave and pre-meditated violation of thefundamental rights of a citizen, and it matters little whether he isa humble casual worker, raising a not-uncommon plea for a salaryincrease to meet escalating living costs, or a person of standingand responsibility in the community, as a Justice of the Peace, thePresident of the Gramodaya Mandalaya, or an office-bearer of a tradeunion branch. According to his statement, as recorded by the 1strespondent, he commenced casual employment as far back as 1984as a trainee; the issue of the inadequacy of salary was raised eversince 1988 with the Central Cultural Fund, and also with a Memberof Parliament for the area, the Prime Minister, and the President.
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In that background, what other option did the petitioner have? Didhe have any other means of redress? Was it not appropriate to resortto collective or trade union action? Or did the Constitution require himto suffer in silence? The Constitution, and in particular Articles10, 12, and 14 recognise the fundamental right of every Sri Lankanto be different; to think differently; and to have and to express differentopinions – not merely a right to disagree privately in silence, but tocommunicate disagreement openly, by word, conduct and action, bypeaceful and lawful means. Dissent, or disagreement manifestedby conduct or action, is a cornerstone of the Constitution. It is a i6oright enjoyed by Members who speak and vote as they wish inParliament; by “Judges, who must decide controversies according totheir considered opinion; and by every citizen at election time whenhe casts his vote for the candidate of his choice. Democracy requiresnot merely that dissent be tolerated, but that it be encouraged; andthis obligation of the Executive is expressly recognized by Article4 (d), which therefore requires that the police not only refrain fromsuppressing lawful dissent, but also that they ‘respect, secure andadvance” the right to dissent. As Justice Jackson ominously observedin West Virginia State Board of Education v. Barnette :170
“Those who begin coercive elimination of dissent soon findthemselves exterminating dissenters. Compulsory unification ofopinion achieves only the unanimity of the graveyard. It seemstrite but necessary to say that the first amendment was designedto avoid these ends by avoiding these beginnings.”
The planned protest was clearly not a hasty, strident, over-reactionto trifling or transient grievance, but a patient, subdued and dignifiedplea to the conscience of the community for a living wage. InAmaratunga v. Sirimal,{2) I upheld the right to dissent, and expressedthe hope :1“>
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"… that the Inspector-General of Police will of his own volitionissue appropriate directions and instructions to all officers-in-chargeof Police Stations, that criticism of the Government, and of politicalparties and policies, is, per se, a permissible exercise of thefreedom of speech and expression under Article 14 (1) (a).”
It is regrettable that five months later, the respondents chose toobstruct a much more restrained exercise by the petitioner of hisfundamental rights. His freedom of speech and expression wasviolated by the seizure of his posters, and by threats to have himremanded if he proceeded with the picketing campaign or displayedposters; this effectively deterred the lunch-time protest; by preventingthe non-violent demonstration, his freedom of peaceful assembly wasinfringed; and since that protest and assembly was a legitimate activityof a lawful association, of which he was a member (Bandara v.Premachandra(3)) his freedom of association was also impaired. Thesewere not errors of judgment occurring during a sudden emergency,or when dealing with armed violence directed at the foundations ofdemocracy. On the contrary, the respondents had time for deliberationand were faced with a proper exercise of democratic dissent. Not onlyshould they have realised that the seizure and retention of the posterswas unlawful, but they should have returned them, with an unqualifiedapology, and an unequivocal acknowledgement of the petitioner’s rightto go ahead with his demonstration. Instead, they decided to invadethe petitioner's residence at night on the most tenuous material -consisting, at best, of a vague rumour communicated by a trade unionrival; they caused an armed police party rudely to violate the privacyof his home, arrogantly dismissing his lawful challenge to search, andarbitrarily to seize his property without any semblance of right; andthen threatened that any further attempt to exercise his fundamentalrights would be suppressed by procuring what would have been animproper judicial order of remand. A prompt complaint to the IGPrequesting an inquiry, was of no avail.
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I hold that the petitioner’s fundamental rights under Articles 14 (1)
, (b) and (c) have been infringed by the 1st and 2nd respondents.
Article 13
The material available to the 1st respondent did not justify thearrest of the petitioner. The 1st respondent denies any such arrest.However, not only is the petitioner’s allegation that he was arrestedsupported by an affidavit sworn by his father, but in the letter dated09. 08. 1993 sent by the parent union to the IGP this allegation of220unlawful arrest was specifically made, and neither denied norexplained. Taking into consideration the absence of a reply or anexplanation, as well as the conduct of the respondents in attemptingto obstruct the planned protest, I hold that it is more probable thatthe 1st respondent did arrest and detain the petitioner, with the2nd respondent’s approval or acquiescence, in furtherance of theirintention to prevent that protest. The petitioner’s fundamental rightsunder Article 13 (1) and (2) were therefore infringed.
As compensation for infringement of his fundamental rights, I directthe paymentof a sumof Rs. 70,000 to the petitioner asfollows : 230
Rs.50,000tobepaidbytheState,
Rs.10,000tobepaidbythe1st respondent, and
Rs.10,000tobepaidbythe2nd respondent.
I direct the Inspector-General of Police –
to issue, after consulting the Attorney-General, precise anddetailed instructions to all officers-in-charge of PoliceStations as to their duties in terms of Article 4 (d) of theConstitution, to respect, secure and advance the exercise
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of the fundamental rights guaranteed by Articles 13 (1) and(2) and Articles 14 (1) (a), (b) and (c), and thereafter to 240forward to the Registrar of this court a copy of suchinstructions; and
to refrain from promoting the 1st and 2nd respondents fora period of one year from the date of this judgment.
WADUGODAPITIYA, J. – I agree.
January 10, 1994GOONEWARDENA, J.
In my judgment in the case of Mohamed Faiz v. The Attorney-Generaland Six Others,w I had occasion to hold that an illegal arrest violativeof Article 13 (1) of the Constitution is not necessarily accompanied 250by the consequence that there is a violation of Article 13 (2) as well,and that a violation of that Article can occur only when there hasbeen a failure to transfer an arrested person from non-judicialcustody to judicial custody within the time period prescribed by law.
It is not necessary to repeat here the reasons I set out in thatjudgment and I see no reason now to take a different view.
Upon the petitioner’s own showing in this application he had notbeen kept in police custody for a period in excess of twenty-four hours.
In these circumstances the petitioner has failed to establish that therehas been a violation of Article 13 (2) of the Constitution.260
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In this application I would limit myself and while desisting fromgiving directions to the Inspector-General of Police, agree withFernando, J., only to the extent of holding that there has been aninfringement of the petitioner’s rights guaranteed to him underArticles 13 (1) and 14 (1) (a), (b) and (c) of the Constitution andwould accordingly order compensation as he has ordered. I see noorder in the judgment of Fernando, J. as respects costs and I myselfwould make no such order.
Relief granted.