022-SLLR-SLLR-2003-1-SENASINGHE-v.-KARUNATILLEKE-SENIOR-SUPERINTENDENT-OF-POLICE-NUGEGODA-.pdf
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SENASINGHE
v.KARUNATILLEKE, SENIOR SUPERINTENDENTOF POLICE,
NUGEGODA AND OTHERS
SUPREME COURTFERNANDO, J.
GUNASEKERA, J. ANDWIGNESWARAN, J.
SC NO. 431/2001 (FR)
3rd DECEMBER, 2002 AND 6th JANUARY, 2003
Fundamental Rights – Protest march against prorogation of Parliament -Referendum on Constitutional proposal – Articles 70 and 86 of the Constitution
Police action to disperse the procession – Section 45 of the Referendum Act
Violation of the right to freedom of movement of the petitioner – Excessiveshooting of rubber bullets-Arrest of petitioner-Articles 14(1)(h), 11 and 13(1)of the Constitution – Jurisdiction of the court to review validity of theReferendum.
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Senasinghe v Karunatillake Senior Superintendent of Police
Nugegoda and others (Fernando, J.)
173
By a Proclamation dated 10.7.2001 under Article 70 of the Constitution thePresident prorogued Parliament until 7.9.2001. By another Proclamation of thesame date acting under Article 86 of the Constitution read with section 2 of theReferendum Act she directed the Commissioner of Elections to hold aReferendum of the people on the need of a “New Constitution.” According tomedia information a group of opposition parties decided to hold a protest rallyat Maradana. Permission for the march was refused by the then InspectorGeneral of Police Laki Kodituwakku (now deceased) under section 45 of theReferendum Act. One such march was to commence at the Nugegoda junc-tion and to proceed on the High Level Road to Maradana.
The evidence does not establish that the petitioner was a participant in themarch. He was an attorney-at-law who had been on his way to WijeramaSouth of Nugegoda to obtain second hand spare parts. Due to the gatheringof protesters at the Nugegoda junction he could not proceed. So he parked hiscar near the “Park’ N Shop” North of the Nugegoda junction where he boughta packet of potato chips.Then he proceeded southward towards the Nugegodajunction in search of a restaurant for refreshments.
The police acted solely under section 45 of the Referendum Act which prohib-ited processions during the Referendum period and not for want of notice ofthe march under section 77 ofrthe Police Ordinance. Nor did they act undersection 78 of the Ordinance which empowered the police to maintain publicorder or to prevent a breach of the peace or obstruction of the streets. The pro-cession marched along the High Level Road notwithstanding an oral prohibi-tion by the 1st respondent Senior Superintendent of Police.
At that stage the police fired tear gas which struck the petitioner. When hewanted to return to his car police officers ordered him to go towards theNugegoda junction where there were protestors. At that stage there werepedestrians on both sides of the road as proved by a photograph. The peti-tioner identified himself as an attorney-at-law but on the orders of the 1strespondent the police officers shot at his face with rubber bullets. He wasarrested and released due to his injuries for which he was hospitalized for twoweeks. He had pellets in his head, arms and spinal area and other injuriesabove his feet which were caused by the shooting which was carried out con-trary to the relevant Police Rules.
Held :
1. The proposed Referendum was invalid as the question submitted tothe People was incapable of an intelligible and meaningful answer.Hence section 45 of the Referendum Act under which the police actedhad no application. The court has the jurisdiction to review the legalaspects of the Referendum, particularly as the Parliament which couldquestion the political aspects of the Referendum had been prorogued.
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By preventing the petitioner from returning to.his car, the 1st respon-dent infringed his right to freedom of movement under Article 14(1 )(h)of the Constitution. By ordering his subordinates to fire at the peti-tioner and to injure him the 1st respondent infringed the petitioner’srights under Article 11 of the Constitution; and by ordering his arrestthe 1st respondent infringed Article 13(1) of the Constitution.
Per Fernando, J.
"As / observed ten years ago "stifling the peaceful expression of legiti-mate dissent today, can only result, inexorably, in the catastrophic
explosion of violence some other day. Democracy requires not
merely that dissent be tolerated, but that it be encouraged and the oblig-ations of the Executive is expressly recognized by Article 4(d), so thatthe police too must respect, secure and advance the right to dissent…..’’
APPLICATION for relief for infringement of fundamental rights
Cases referred to:•
Wickramabandu v Herath – (1990) 2 Sri LR 348,358
Premachandra v Jayawickrama – (1994) 2 Sri Lr 90,107-111
State of Rajasthan v Union of India – AIR 1977 SC 1361,1413
Dinesh Chandra v Charan Singh AIR – 1980 DELHI 114
Adegbebro vAkintola – (1963) 3 ALL ER 544
Ramupillai v Festus Perera – (1991) SRI LR 11
Perera et al v Pathirana – SC 453/97 SCM 30.1.2003
Karunatilleke v Dissanayake- (1999) 1 Sri LR 157
Amaratunga v Sirimal- (1993) 1 Sri LR 264,271
Wijeratne v Perera – SC 379/93 SCM 2.3.94
West Virginia State Board of Education v Barnette – (1943) 319 US624,641
Ikram Mohamed P.C. with S.Jayawardena, F. Cassim and A.M. Faiz forpetitioner
Manohara de Silva for 1st respondent
P. Ranasinghe, State Counsel for 3rd and 4th respondents.
Cur.adv.vult
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Senasinghe v Karunatillake, Senior Superintendent of Police,
Nuaegoda and others (Fernando, J.)
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March 17,2003FERNANDO, J.
The Petitioner, an attorney-at-law, alleges that on 19.7.2001between 10.30 a.m. and 10.50 a.m. his fundamental rights underArticles 11, 13(1) and 14 (1)(h) were infringed by the 1stRespondent, the Senior Superintendent of Police (“SSP”)Nugegoda, and other Police officers carrying out his orders in rela-tion to a protest march.
On 10.7.2001, by Proclamation (Gazette 1192/14 of10.7.201) under Article 70 of the Constitution the President pro-rogued Parliament until 7.9.2001. Simultaneously, by anotherProclamation (Gazette 1192/16 of 10.7.2001) under Article 86 ofthe Constitution, read with section 2 of of the Referendum Act, No.7 of 1981, the President directed the Commissioner of Elections toconduct a Referendum on 21.8.2001, specifying “the proposal tobe put to the People at such Referendum” (which I will refer to asthe “Referendum Proposal”) as:
“Is a new constitution as a matter of national importanceand necessity needed for the country?”
Article 86 provides:
“The President may, subject to the provisions of Article 85,submit to the People by Referendum any matter which in the opin-ion of the President is of national importance”
Article 87(2) required Parliament to provide by law, inter alia,for the matters relating to the procedure for the submission of Billsand of matters of national importance to the People byReferendum. Parliament enacted the Referendum Act, which pro-vides:
2. (1) A Referendum in terms of Chapter XIII of theConstitution shall be conducted by the Commissioner ofElectionswhere the President has, by Proclamation pub-
lished in the Gazette, directed such Commissioner to con-duct a Referendum.
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A Proclamation issued under subsection (1) shall –
specify the proposal to be put to the people at theReferendum in the form of a question which shall beanswered by a “Yes” or a “No”….
45. No person –
(a) Shall, at any time from the date of publication of theProclamation in respect of a Referendum and ending on theday immediately following the date on which the result… isdeclared, conduct, hold or take part in any procession otherthan a procession on May 1….”
UNDISPUTED FACTS
Some Opposition parties and groups, under the name“Alliance for the Protection of Democracy”, had orgainzed sixprotest marches for 19.7.2001 for the purpose – according to thePetitioner – of protesting against the prorogation of Parliament andof calling upon the Government to reconvene Parliament and touphold and preserve democracy. In his affidavit the 1st Respondentclaimed that the proposed march was not for a peaceful purposeand “was being organized mainly against the holding of theReferendum”. However, he himself produced a “Lankadipa” news-paper report, dated 19.7.2001, according to which UNP DeputyLeader Gamini Athukorale had informed the Police of the proposedmarch under the theme “Reconvene Parliament” and had request-ed Police protection, but had been told that permission had beenrefused by the 3rd Respondent, the then Inspector-General ofPolice (now deceased), under section 45 of the Referendum Act.No other reason was mentioned. The six marches were to termi-nate at Maradana junction, where a protest rally was to be held,after which there was to be a mammoth march to the President’sHouse. One such march was due to start from the Nugegoda junc-tion and to proceed on the High Level Road to Maradana.
A large number of people had gathered at the southern endof the Nugegoda junction by about 9.45 a.m. The 1st Respondentstated that he had been informed by the Superintendent of Police(“SP”) Nugegoda, that the latter’s request to the people to disperse
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had not been obeyed, and that he had ordered the SP that “noforce whatsoever should be used, but to pursue his powers of per-suasion to stall the people from proceeding until he arrived.” Hearrived at the Nugegoda junction at about 10.20 a.m. and assessedthe situation. At 10.29 a.m. he went up to the protesters and spoketo Members of Parliament Ravi Karunanayake and GaminiAthukorale, “who were leading the mob and requested them toadvise their supporters… to refrain from proceeding in view of theorder made by the IGP in view of section 45". Neither then norlater was any other reason given for ordering the protesters to dis-perse. However, the two Parliamentarians insisted that they wouldproceed with the march as planned. No proceedings were institut-ed against those two leaders of the “mob” for any offence undersection 45.
A Police officer had been given the task of videotaping theactivities of both the Police and the protesters. The 1 st Respondentproduced the videotape and several still photographs from thevideotape. Together with Counsel we viewed the videotape and itwas then discovered that immediately after some photographstaken at 10.48 a.m. there appeared photographs taken at 10.50a.m. – so that all photographs taken at 10.49 a.m. (and perhaps afew taken even before and after) were missing. The Police officerwho had videotaped the march stated in his affidavit that he hadviewed the videotape before presenting it to Court. However, intheir affidavits, neither he nor the 1st Respondent offered anyexplanation as to the missing minute in the videotape.
While there is some dispute as to what exactly happenedbetween 10.30 a.m. and 10.50 a.m. photographs taken at 10.50a.m. showed that the Petitioner had received some injury. It is notdisputed that shortly before 10.50 a.m. the 1st Respondent hadordered the SP Nugegoda, who was in charge of the Police party,to order his subordinates to fire rubber bullets at the crowd, in con-sequence of which the petitioner suffered injuries on the back of hishead, on the back of one arm and near his spine. He was hospi-talized, first at Asiri Hospital in Colombo and then at the GeneralHospital, Kandy, and underwent three surgical operations – toextract three pellets, from the head, the arm and the spinal area.He was under treatment for a period of two weeks thereafter.
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Supporting medical reports and X-rays proved that these were notsuperficial injuries. Not only did he suffer pain, dizziness and lossof memory but he was also unable to engage in his profession.
The Petitioner produced, without objection, what wasdescribed as Police Departmental Orders applicable to the“Dispersal of crowds and unlawful assemblies and the use offirearms on rioters”, which provide as follows:
"Rules to be observed by the Police when compelled to usefirearms
2 . (iii) If the officer-in-command should be of opinion that aslight effort would suffice, he will give the word of commandto fire only to two specified men. If a greater effort should berequired, he will give the word of command to the wholesquad, or to as many of the squad as may be necessary tofire. He will direct the firing party to fire low i.e., below theknees of the persons on whom they are ordered to fire.
Care is to be taken not to fir9 upon persons separatedfrom the crowd…..
Civil Force
When an armed party is brought on to the scene…. as littleforce must be used and as little injury caused as is consistent withdispersing the assembly and arresting and detaining the offend-ers
4. To ensure that all Police officers are thoroughly cognizantof their powers in using firearms they are required to learnby heart…. (the following precis of their powers)….
‘If I see a mob committing or attempting to commit any ofthe following crimes –
Murder or grievous hurt
Robbery
Burning or damaging by means of explosives
Breaking into houses, shops …. by night
(attacking?) houses, shops….in such a way as may
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cause death of or grievous hurt to any inmate,…. and ifthere is no other way to stop the mob –
I am entitled to FIRE UPON THE MOB TO PROTECT THEPERSONS AND PROPERTY IN DANGER…. ’
Note – Whenever Police are compelled to use fire arms, a carefulnote is to be made, when firing ceases, by the senior Police officerpresent of the number of rounds actually fired.. The number of roundsfired must be recorded…
Amount of force that may be used.
Fire should be opened only when such action is absolutelynecessary to prevent the commission of the crimes men-tioned above and it is clear that the mob intends to persistin its action….
You may be so pldfced that an order to fire may involve riskto innocent bystanders. If peoples’ lives are in danger how-ever, and you cannot otherwise save them, you are entitledto take the risk of injuring these bystanders.
No more force must be used than is reasonable in the par-ticular circumstances of each case….’’(emphasis added)
THE PETITIONER’S VERSION
According to the Petitioner, after a consultation with a client,he left Hulftsdorp at 9.30 a.m. with a friend for Wijerama, Nugegoda(which is south of the Nugegoda junction) in order to purchasesome second-hand spare parts. On his way he parked his car atthe “Park ’N Shop” supermarket (north of Nugegoda junction)where he purchased a packet of potato chips. The machine-printedreceipt recorded the time of purchase as 10.17 a.m. Then, findingthat he could not proceed in his vehicle due to the gathering of pro-testers at the Nugegoda junction, the Petitioner left his car at thesupermarket and with his friend walked towards the junction insearch of a restaurant for refreshments. People were freely movingaround and there were Police officers on both sides of the road,who were not restricting the free movement of people. This is con-
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firmed by a photograph taken at 10.23 a m. which shows thePetitioner at the northern part of the Nugegoda junction, close to agroup of Police officers but nowhere near the protesters.
Although the 1st Respondent claimed that the Petitioner wasa willing participant in the protest, and not a mere bystander, it isclear that up to 10.23 a.m. he had no connection with the protesters.
The Petitioner claimed that the Police suddenly and arbitrar-ily fired tear gas at random without any previous warning, towardsthe protesters at the junction who were about 150 meters away.Several bystanders, including the Petitioner and his friend, werecaught in-between and had to take shelter from the tear gas forabout 15 minutes. The tear gas affected the Petitioner’s eyes, andcaused him breathing difficulties, and he was thrown into a state ofconfusion and shock. He decided to get back to his car at thesupermarket. However, a group of Police officers ordered him toturn back and go towards the Nugegoda junction. The Petitionerexplained that he and his friend were no4part of the protesters andwere merely bystanders who wished to return to their car. At thispoint the 1st Respondent came up. The Petitioner then producedhis lawyer's identity card and explained the reason for his presenceat the scene. Despite that explanation, the 1st Respondent threat-ened and abused the Petitioner; and ordered him to run towardsthe protesters. No details were given of the threats and abuseexcept that the 1st Respondent barked out the words “get out”.Upon seeing the Petitioner being accosted by the 1st Respondent,two attorneys-at-law came up from among the protesters, andinquired as to what was taking place. The Petitioner againexplained to the 1 st Respondent and the two attorneys that he wasonly trying to get back to his car. However, the 1st Respondent con-tinued to threaten the Petitioner and ordered him to run towards theprotesters. (This is supported by a newspaper photograph, pro-duced by the Petitioner, which showed the Petitioner and severalPolice Officers, including the 1 st Respondent whose outstretchedarm was pointing towards the junction.) When the Petitionerrefused to turn back the 1st Respondent asked him, “thamusetabullet oneda?” (“Do you want bullets?”)The Petitioner then sug-gested that the 1st Respondent accompany him to his car.Disregarding that request the 1st Respondent ordered his subor-
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dinates to open fire on the Petitioner. Those officers, however,were hesitant but when the 1st Respondent repeated his orderthey fired at the ground close to the Petitioner. The Petitionerpleaded with the 1 st Respondent not to open fire but to take himinto custody if necessary. The 1st Respondent then screamed athis subordinates ordering them to shoot the Petitioner in the face.When the Police officers aimed their guns at him, in fear thePetitioner turned and went towards the protesters as ordered.Nevertheless, he says, he was shot at a range of about 10 meters.One of the other attorneys-at-law too sustained bullet injuries.
The Petitioner was outraged, but despite being in pain andbleeding, he approached the 1st Respondent and asked why hehad given orders to shoot. (This is supported by a newspaper pho-tograph produced by the Petitioner as well as a videophotographtaken at 10.50 a.m., both of which showed the Petitioner with hishand pressed to the back of his head.) The 1st Respondent thenasked the Petitioner, “Kewa madida, thawa bullet bassandada?”(“Haven’t you had enough, do you want more bullets?”) ThePetitioner persisted in questioning the 1st Respondent who thenordered his arrest. (This is supported by another newspaper pho-tograph which showed a Police officer holding the Petitioner by histie). He was then handed over to another group of Police officers,who did not detain him any further. Video-photographs taken at10.50 a.m. showed the petitioner (holding the back of his head) andone other civilian in close proximity to the Police officers, with nosign of any other civilians in the vicinity.
THE 1ST RESPONDENT’S VERSION
The 1st Respondent stated that the 3rd Respondent had ameeting on 17.7.2001 with Deputy Inspector-Generals and SSP’sin charge in Divisions in Colombo. At that meeting the 3rdRespondent directed those officers not to permit protest marches inview of section 45 of the Referendum Act. That was the sole rea-son, and it was not pleaded or contended that those directions weregiven under section 77(3) of the Police Ordinance “in the interestsof the preservation of public order”. The 2nd Respondent, DIGWestern Province, was discharged prior to the hearing.
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On 19.7.2001, immediately after speaking to the twoMembers of Parliament, the 1st Respondent ordered that barri-cades be placed across the High Level Road, at a point about 150meters north of the Nugegoda junction, in order to prevent the pro-testers from proceeding to Colombo. Nevertheless the protesterscommenced their march at about 10.30 a.m., brushing aside thePolice officers and disregarding repeated appeals to disperse “asthey were committing an offence under section 45”. A video-photo-graph at 10.32 a.m. shows the protesters calmly walking from thejunction towards Colombo with no sign of unruliness or violence.The 1st Respondent claimed that the Petitioner appeared in thatphotograph, proving that he was an active and willing participant inthe protest, but the Petitioner denied that he was the persondepicted in the photographs, and we are unable to hold on a bal-ance of probability that the 1st Respondent was correct.
At about 10.34 a.m., despite repeated warnings, the protest-ers grappled with the Police, pushed down the barricades, andattacked the Police with missiles. As the crowd was violent and asthere was a breach of the peace, the 1st Respondent ordered firingof tear gas, in consequence of which the crowd dispersed and wentback towards the Nugegoda junction. The 1st Respondent con-tended that there was a footpath, by the side of the High LevelRoad, along which the Petitioner could have got back to his owncar without confronting the Police.
The 1st Respondent stated that “rubber bullets were firedfrom a position about 70 meters (away) only when the mobs wereattacking the police and were advancing towards them with mis-siles”. He did not claim that the kind of injury or damage referred toin the Departmental Orders has occurred or was anticipated, northat he had ordered firing below the knees. He also did not give anyfurther clarification as to how the Petitioner was injured, nor anyparticulars as to the weapons and ammunition issued to the Policeofficers and the number of rounds actually fired, but he did producesome internal correspondence in which the opinion had beenexpressed that rubber bullets could be fatal at under 30 meters. Hestated that he could not recall the Petitioner being injured, but couldremember giving instructions to the Police officers to take a personwho was injured to hospital; that he did not order that the Petitioner
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be arrested; and that he only wanted to help the Petitioner by order-ing the Police officers to take him to hospital, but the Petitioner’sfriends volunteered to do so.
CONTENTIONS
Learned Counsel for the Petitioner contended that the protestmarch was lawful and peaceful; that the Petitioner was not a par-ticipant in that protest but only a bystander; that by preventing himfrom retunihg to his car the 1st Respondent and other Police offi-cers had infringed his freedom of movement under Article 14(1 )(h);that by shooting at and wounding him in the back, while separatedfrom the protesters, they had subjected him to cruel, inhuman anddegrading treatment in violation of Article 11; and that his subse-quent arrest on the 1st Respondent’s order was an infringement ofArticle 13(1).
Learned Counsel for the 1st Respondent submitted that theprotest march was not peaceful and was unlawful by virtue of sec-tion 45 of the Referendurrftct; that the Petitioner was a willing par-ticipant; that he could have left the place and returned to his car, butchose to remain; that despite police warnings to the protesters todisperse they pushed down the barricades; that when the crowdwas advancing and throwing missiles, the 1st Respondent wascompelled to order his subordinates to shoot with rubber bullets ata distance of over 50 meters; that the Petitioner “only suffered slightinjuries”; and that the Police did not arrest him.
In the course of the oral hearing it was pointed out to learnedCounsel for the 1st Respondent and to learned State Counsel thatthe prohibition on processions imposed by section 45 seemed toapply only if a Referendum – i.e. a valid Referendum, and notmerely a purported Referendum – had been duly called under sec-tion 2, but not otherwise; and that, arguably, the ReferendumProposal was outside the scope of section 2, because the questionsubmitted was not capable of being answered, unambiguously,“Yes” or “No”. On those issues, the 1st Respondent’s position wasstated thus in written submissions filed after judgment wasreserved:
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“whilst the President could have framed the question dif-
ferently it cannot be said that the question presently formu-lated is not legal. These questions are political questionsbeyond the jurisdiction of the court. In any event the 1stRespondent….in the position (in which he was placed) onthe morning of 19.7.2001 could not have reasonably (been)expected to scrutinize the legality or the propriety of thePresident’s question. The 1st Respondent was well entitledto presume that all official acts are regularly performed. The1 st Respondent acted bona fide and therefore did not act inviolation of the Petitioner’s fundamental rights.”
If the protest march was unlawful, the Police were entitled touse reasonable force to disperse the crowd, and the issues in thiscase would then have centred on whether they had used excessiveforce. If, however, the march was lawful, peaceful and orderly, theissues would have been whether they were entitled to use anyforce at all, and whether they were entitled to take any risk at allinjuring bystanders. It is therefore necesSary to decide whether themarch was unlawful.
It was not the 1 st Respondent’s position that the march wasunlawful by reason of any failure to give notice under section 77 ofthe Police Ordinance, or that it became necessary to disperse themarchers because of directions given in the interests of publicorder or to prevent an apprehended breach of the peace or obstruc-tion of the streets (cf sections 77(3) and 78 of the PoliceOrdinance).
THE REFERENDUM
It is therefore necessary to examine several issues in regardto the validity of the Proclamation and the Referendum Proposal.
Did the prohibition on processions imposed by section 45 ofthe Referendum Act apply only where there had been avalid Proclamation under section 2?
Does this Court lack jurisdiction to determine whether theProclamation was valid and/or whether the ReferendumProposal had been duly formulated, because those were“political questions"?
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If this Court does have jurisdiction, was the Proclamationinvalid because the proposal for submission to the Peopleby Referendum was not a question satisfying the require-ments of section 2?
Even if the Proclamation was invalid for that reason, did the1st Respondent act bona fide and in the reasonable beliefthat the Proclamation was valid and that section 45 wasapplicable to the protest march, and was therefore not liablefor any violation of the Petitioner’s fundamental right?
Articles 14(1)(a) and 14(1 )(b) recognize the freedom of citizenspeacefully to express their views and to assemble. They protect theright of citizens to go in procession and to hold rallies, in order tomanifest their protests against acts and decisions, including thoseof the Government. Section 45 of the Referendum Act constitutes arestriction on those rights. Article 15 permits “restrictions” on fun-damental rights, but does not contemplate or authorize unreason-able restrictions (Wickremabandu v Herath,^). Section 45 is thusan exercise by Parliament of the power to impose reasonablerestrictions. Accordingly, if there is some ambiguity as to the scopeof the restriction imposed by Parliament in section 45, that inter-pretation should be preferred which would make such restrictionreasonable, rather than that which would make it unreasonable. Inany event, as a matter of general principle, restrictions on the rightsof citizens must be narrowly construed rather than broadly; and ref-erences by Parliament to Proclamations, Referenda and other offi-cial acts, must be assumed to include only lawful and valid acts.Finally, the fundamental rights are one manifestation of the sover-eignty of the People, and the acts of all three organs ofGovernment must, as far as reasonably possible, be interpreted soas to advance rather than to derogate from the fundamental rights,and the Judiciary, as part of the State, is committed to achieving“the full realization of the fundamental rights and freedoms of allpersons” (of Articles 4(d) and 27(2)(a)).
For all those reasons, I hold that the prohibition in section 45only applies where there has been a valid Proclamation in respectof a valid Referendum Proposal.
The argument that this Court lacks jurisdiction to determinequestions relating to the exercise of executive powers simply
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because they are “political questions” was firmly rejected inPremachandra v Jayawickrama (2). That decision dealt with thepower of Provincial Governors (under Article 154F) to appoint ChiefMinisters. In dealing with that argument, I cited the observations ofBhagwati, J, (as he then was), in State of Rajasthan v Union ofIndia <3>.
“….So long as a question arises whether an authority underthe Constitution has acted within the limits of its power orexceeded it, it can certainly be decided by the Court.Indeed, it would be its constitutional obligation to do so….No one howsoever highly placed and no authority howso-ever lofty can claim that it shall be the sole judge of theextent of its power under the Constitution or whether itsaction is within the confines of such power laid down by theConstitution. This Court is the ultimate interpreter of theConstitution…. It is for this Court to uphold the constitution-al values and to enforce the corjgtitutional limitations. Thatis the essence of the Rule of Law….”
Reference was also made to the fact that the Courts did notdecline to review even the appointment and removal of the PrimeMinister, in India (in Dinesh Chandra v Charan Singh,'W and inNigeria (in Adegbenro v AkintolaS5)).
It is now firmly established that all powers and discretionsconferred upon public authorities and functionaries are held upontrust for the public, to be used reasonably, in good faith, and uponlawful and relevant grounds of public interest; that they are notunfettered, absolute or unreviewable; and that the legality and pro-priety of their exercise must be judged by reference to the purpos-es for which they were conferred.
In accordance with those principles, this Court has reviewedthe acts of the entire Cabinet of Ministers inclusive of the President(Ramupillai v Festus PereraS6); Perera et al. v PathiranaS7) SC453/97 SCM 30.1.2003), and of the President (Wickremabandu vHerath; Karunatilleke v Dissanayake,(8>) despite Article 35 whichonly provides a shield of personal immunity from proceedings incourts and tribunals, leaving the impugned acts themselves open tojudicial review.
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There is another aspect of the “political questions” argument.The exercise of many powers, Constitutional and statutory, wouldhave both legal and political aspects. While it is appropriate that theJudiciary should review only the legal aspects, the question ariseswhether the political aspects are reviewable at all, except by thePeople themselves at the next election. It appears to me that in thatrespect the role of Parliament – as the elected representatives ofthe People – has been recognized in Articles 42 and 43, whichessentially ensure the responsibility of the Executive to Parliamentfor the due exercise of all powers, Constitutional and statutory.Article 35 has no application to proceedings in Parliament underArticles 42 and 43. Hence the “political questions” argument is onlycorrect to this extent: questions of legality are for the Judiciaryalone to determine, and political questions are left for the Peopleand their elected representatives.
It must also be remembered that in this case when theReferendum was called for on 10.7.2001, Parliament was simulta-neously prorogued until 7f9.2001 – more than a fortnight after thescheduled date of the Referendum. Consequently, Parliament wasdenied the opportunity of exercising whatever powers it has underArticle 42. In that background, declining jurisdiction on the basis ofthe “political questions” argument would have served to place theProclamation beyond review, thus undermining the Rule of Law.
I therefore hold that this Court does have jurisdiction to con-sider whether the Proclamation and the Referendum Proposal werein conformity with the Constitution and the Referendum Act.
have now to consider the validity of the Referedum Proposal asset out in the impugned Proclamation. Section 2(2)(a) requires thata Proclamation “shall specify the proposal to be put to the Peopleat the Referendum in the form of a question which shall beanswered by a ‘Yes’ or a ‘No’…”
A Referendum is an electoral process that is litte different toany nation-wide election, in respect of the enormous expenditure ofpublic funds and the disruption of day-to-day life involved – includ-ing danger to life and limb, and damage to property. It cannot light-ly be assumed that Parliament intended that process to be usedexcept in a manner which would yield an intelligible, meaningfuland useful result.
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Article 3 defines the sovereignty of the People as includingthe powers of government; and Article 4(a) defines one componentof sovereignty to be the legislative power, which shall be excercisedby Parliament and by the People at a Referendum. A Referendumis, prima facie, an exercise of legislative power, and a Referendumunder Article 85 is clearly a part of the legislative process. However,Article 86 is in wider terms, and a Referendum under that Articledoes not appear to be necessarily a part of the legislative process,although it may be a prelude to legislation. But even a Referendumunder that Article would be a costly exercise in futility unless ityields a meaningful result, conveying the opinion of the People witha sufficient degree of clarity and precision as to constitute a man-date for future governmental action.
In my opinion, section 2(2)(a) permits submission forReferendum only of questions the answer to which – whether “Yes”or “No” – would convey clear, intelligible and meaningful informa-tion on issues relevant to future governmental action.
The impugned proposal must now be scrutinized. Theanswer “No” would have been somewhat ambiguous, and couldaccurately have been given by three different groups of persons:those who thought that a new Constitution, though needed, was notof national importance and necessity, as other matters were moreurgent and important; those who thought a new Constitution wasnot needed, but that the existing one needed amendment; andthose who thought neither a new Constitution nor amendmentswere needed.
The answer “Yes” would have been even more ambiguous,and could have been given by several different groups of persons,agreed only upon the need for a new Constitution, but holding whol-ly divergent views as to what that Constitution should provide. Thusthose in favour of a new unitary Constitution as well as those infavour of new federal Constitution would vote “Yes”, and a major-ity “Yes” vote would therefore fail to reveal what number of votersfavoured each alternative. Furthermore, there would have beeneven more confusion on that issue, because some voters who pre-ferred a unitary Constitution could also have accurately have voted“No”. Hence on the issue – “unitary”or “federal”? – the result wouldhave been inconclusive and ambiguous. There would have been
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similar divergent views on other issues: such as, PresidentialExecutive, or Parliamentary Executive? Elections according toProportional Representation, or the old Constituency System, orsome other system? Thus a “Yes” vote would have lumped togeth-er, for example, those who desired a Federal system with aParliamentary Executive elected on the Constituency system, aswell as their most vigorous opponents who favoured a Unitary sys-tem with a Presidential Executive and elections by ProportionalRepresentation. There are other important aspects of a newConstitution: the sharing of governmental powers, judicial review oflegislation and executive action, fundamental rights and theirenforcement, appointments to high posts, etc. The purpose of aReferendum is to obtain the verdict of the People, and a series ofquestions should (and could) have been so formulated that amajority “Yes” vote would have clearly disclosed at least the mainfeatures which the majority of the electorate agreed should beincorporated in the new Constitution; and so that a “No” vote wouldhave disclosed without ambiguity why a new Constitution was notdesired.
I hold that the impugned proposal did not satisfy the require-ments of section 2(2)(a) of the Referendum Act, and theProclamation was therefore invalid, and section 45 did not apply to 'the protest march.
If, and to the extent that, that march and the intended rallywere a peaceful protest against the Referendum and prorogation ofParliament, and a plea for the reconvening of Parliament and therestoration of democracy, they were a legitimate exercise of thefreedoms of speech and expression, and of peaceful assembly,under Articles 14(1)(a) and (b). Although section 45 was not oper-ative, yet those freedoms were subject to inherent and intrinsic lim-itations, in that they should not have been exercised on publicstreets and pavements so as to deny or infringe the rights of otherusers of such streets and pavements. There is no evidence of anysuch infringement or interference, and whatever inconveniencewas caused could probably have been avoided if the Police hadallowed the march to proceed, and regulated and controlled its con-duct using the powers conferred by sections 77 and 78 of thePolice Ordinance, as indeed, they do in regard to the many proces-
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sions, peraheras, marches and walks which are a part of the SriLankan scene.
4. If the 1 st Respondent had acted bona fide that would havebeen a mitigatory factor which, however, would not exempt himfrom liability.
FINDINGS OF FACT
The evidence establishes that the protesters had assembledpeacefully in preparation for a lawful protest march at Nugegodajunction; that the Police on the instructions of the 1st Respondenthad unlawfully prevented them from proceeding on their march,probably resulting in some obstruction to the streets; that whenthey commenced their march at 10.30 a.m. the Police had unlaw-fully attempted to stop them, using tear gas as well; that the pro-testers were thereby pushed back south of the Nugegoda junction;that the Police acted on the sole ground that section 45 was applic-able, and not on account of any actuals apprehended breach ofthe peace, or obstruction of the streets, or to prevent the commis-sion of any of the offences specified in the Police DepartmentalOrders; that the protesters then resorted to throwing sticks andstones at the Police; that the Petitioner was not a participant in theprotest march; that the 1st Respondent prevented the Petitionerfrom leaving the scene and proceeding towards his car, andperemptorily directed him to go towards the protesters; that thePetitioner was probably unaware of any footpath by the side of theHigh Level Road and/or that this led to the supermarket, and aftera heated argument trurned and went towards the protesters asordered; that nevertheless the 1st Respondent callously orderedhis subordinates to open fire, but without directing them to fire low;that the Petitioner received injuries from behind, whilst he was mov-ing away from the Police officers; that such injuries were inflictedwhen the Petitioner was about 10 meters away from the Police offi-cers, and so far separated from the protesters that such firing wasnot related to any genuine attempt to disperse the protesters, or toprevent any specified offence, and was without due regard to therisk of injury to bystanders; that alternatively, even assuming asclaimed by the 1 st Respondent that the Petitioner was then over 50meters away from the Police, he was not advancing towards the
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Police, and such firing was unrelated to any attempt to disperse theprotesters; that such firing was in all material respects contrary tothe clear provisions of the Police Departmental Orders, and, in thecircumstances, not capable of being excused or mitigated by anybona fide belief that the protest was unlawful; that thereafter thePetitioner was arrested on the 1st Respondent’s orders, butreleased almost immediately; and that the Petitioner suffered seri-ous injuries requiring surgery and hospitalization, and consequen-tial loss and damage.
Even if I were to assume both that the. protest march wasunlawful, and that the Petitioner was a willing participant, yet in thecircumstances the use of firearms (especially directed above theknees) was unjustified, unreasonable, excessive and in violation ofthe Departmental Orders (which re-iterated the applicable legalprovisions).
ORDER
m
I hold that by preventing the Petitioner from returning to hiscar, the 1 st Respondent infringed his freedom of movement underArticle 14(1)(h); that by causing his subordinates to open fire on,and to injure, the Petitioner, the 1st Respondent subjected him tocruel and inhuman treatment in violation of Article 11; and that byordering the Petitioner’s arrest, the 1st Respondent infringed hisfundamental right under Article 13(1).
. As for compensation, the infringement of Article 11 was par-ticularly grave and reprehensible because the 1st Respondent notonly acted with high-handed disregard for the Departmental Ordersbut displayed a callous indifference to human suffering, while sup-pressing a democratic protest. As I observed ten years ago, “sti-fling the peaceful expression of legitimate dissent today can onlyresult, inexorably, in the catastrophic explosion of violence someother day” (Amaratunga v SirimalS9). Democracy requires notmerely that dissent be tolerated, but that it be encouraged, and thatobligation of the Executive is expressly recognized by Article 4(d),so that the Police too must respect, secure and advance the rightto dissent (Wijeratne v Perera,0°)) for as cautioned in West VirginiaState Board of Education v Barnette, (11>, “those who begin coer-
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cive elimination of dissent soon find themselves exterminating dis-senters”.
I therefore award the Petitioner compensation in a sum of Rs200,000 for the infringement of Article 11 and in a sum of Rs 10,000for the infringement of Articles 13(1) and 14(1 )(h), together withcosts in a sum of Rs 25,000, payable on or before 31.5.2003. Whilethe infringements were the consequence of improper governmentaldecision for which the 1st Respondent was not responsible, he nev-ertheless acted in bad faith, and in excess and abuse of his pow-ers. I therefore order the 1st Respondent personally to pay a sumof Rs 20,000, and the State to pay the balance. I also direct theRegistrar to forward a copy of this judgment to the National PoliceCommission.
GUNASEKERA, J.I agree.
WIGNESWARAN, J.- I %ree.
Relief granted.