006-SLLR-SLLR-1992-2-MOHOTTIIGE-AND-OTHERS-v.-GUNATILLEKE-AND-OTHERS.pdf
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[1992] 2 Sri L.R.
MOHOTTIGE AND OTHERS
v.
GUNATILLEKE AND OTHERS
SUPREME COURTBANOARANAYAKE. J.
FERNANDO. J. ANDDHEERARATNE, J.
S.C. APPLICATIONSNOS.. 23/92, 24/92 AND 25/92.
Fundamental Rights – Freedom of Speech and Expression – Use ofLoudspeaker – Right to Criticise Government – Article 14(1) (a) of theConstitution – Sections 56 and 80 of the Police Ordinance.
The office-bearers of the newly formed Homagama Branch of the DemocraticPeople's Organization, namely Dharmadasa Mohottige (Secretary) and D. L. W.
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Mohottige and Others v. Gunatilleke and Others
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Abeygunaratne (President) sought permission from the 1st respondentGunatilleke who was the officer-in-charge of the Kahatuduwa Police Station to usea loudspeaker at a meeting (seminar) to be held on 04.01.1992. A permit wasissued by the 2nd respondent (Assistant Superintendent of Police M. S.Ranasinghe) allowing the use of a loudspeaker subject to a condition: that thespeakers should refrain from criticising the Government, any Organization or anyindividual. The 1st respondent imposed the further condition that speakers berestricted only to those he named in the permit, namely Lalith Athulathmudali,M. D. Premachandra and Premaratne Gunasekera. A further endorsement on thispermit announced that the speeches would be tape-recorded.
Held:
Section 56 of the Police Ordinance dealt with the duty of police officers to usetheir best endeavours and ability to prevent all crisis, offences and publicnuisances, to preserve the peace and to collect and communicate intelligenceaffecting the public peace. Section 80 of the Police Ordinance empowers a PoliceOfficer of rank not below Assistant Superintendent of Police to authorise the useof a loudspeaker in a public place. The imposition of conditions for such use ispermissible. The imposition of conditions whereby the permit is limited to namedspeakers violates the law. The demand to know the names of speakersbeforehand and naming them in the permit as the persons authorised to use theloudspeaker may constitute a violation of the right to free speech guaranteed byArticle 14(1) (a) of the Constitution of persons who may otherwise have wished tospeak.
D. Mohottige wished to speak but his name was not in the list of speakers. So heregarded himself as not permitted to use the loudspeaker and so he refrainedfrom speaking. This amounted to an infringement of Mohottige’s fundamental rightto free speech and expression constituting a violation of Article 14(1) (a).
Gunasekera did use the loudspeaker to make a speech. Premachandra was notnamed in the permit because his correct name had inadvertently not beenprovided to the police. There was therefore no violation of their rights of freeexpression.
On the endorsement prohibiting criticism of the Government –
Per Bandaranayake, J : “Freedom of speech and expression includes the right tofairly and within reasonable limits criticise a Government. This has been widelyrecognised in civilized jurisdictions as a natural right inherent in the status of a
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free citizen. The people have- a right to be informed of public issues throughsources outside and independent of the Government. This freedom however canbe restrained where its exercise is intended to or has a tendency to underminethe security of the state or public order, or incite feelings of disaffection or illwillagainst the State or bring the Government into hatred or ridicule etc".
Where the effect of the conditions endorsed in the permit is in the nature of ablanket prohibition against saying anything against the Government or itsactivities, it tends to nullify democratic Government as is understood in thiscountry. Such a condition would necessarily evoke feelings of fear and confusionin the public mind and of those wishing to participate at the seminar though uponthe evidence speakers did defy the ban.
The speakers were in fact critical of the Government and that the Police did notstop them or interfere with the proceedings is at best an entreaty made inmitigation of the mischief done. The endorsement made by the 2nd respondenthas restrained the 1st petitioner D. Mohottige unlawfully resulting in aninfringement of his fundamental right to free speech.
Application for relief for the infringement of the fundamental right of freedom ofspeech and expression.
Lalith Athulathmudali. P.C., with Ranjan Gooneratne, Dr. Ranjit Fernando,Mahendra Amerasekera, Ranjith Moraweke, T. M. S. Nanayakkara, NalinDissanayake, Kalinga Indatissa, D. N. Pathmaperuma, instructed by MaddumaBanda Hondakumbura for the Petitioners.
Upawansa Yapa, Deputy Solicitor General with 0. Weerasuriya State Counsel,instructed by Sujatha Peiris, Asst. State Attorney for the Respondents.
Cur. adv. vult.
13th November, 1992.
BANDARANAYAKE, J.
The above applications complaining of violation of FundamentalRights were taken up together with consent of parties as they relateto the same set of facts and incidents and give rise to similar claimsfor relief. According to the Petitioners after expulsion of Messrs. LalithAthulathmudali former member of Parliament and Minister and othersfrom the United National Party in 1991 but before formal recognitionof the Democratic United National Front as a Political party by the
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Mohottige and Others v. GunaliUeke and Others
(Bandararmyake. J.)
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Commissioner of Elections, certain voluntary Organisations insupport of the new party were formed under the name “DemocraticPeople’s Organisation”. A branch office was formed in Homagama.The Petitioner Dharmadasa Mohottige was appointed the Secretaryof this branch whilst D. L. W. Abeygunaratne was appointedPresident of this branch, Messrs. Athulathmudali and PremaratneGunasekera were “Advisors” to the organisation.
The said branch organisation at Homagama decided to conduct aSeminar with public participation at Wetara, Piliyandala on 04.01.92under the topic "Present Political Situation". By letter dated 18.12.91 -annexure P2 – the organisers Messrs. Abeygunaratne and Mohottigesought permission from the officer-in-charge, Kahatuduwa police, the1st Respondent, to use a loudspeaker at the meeting (seminar) to beheld on 04.01.92. A handbill distributed by the organisation forpublicity purposes is annexure P1. In his affidavit P4 D. L. W.Abeygunaratne has stated that on 24.12.91. the 1st respondenttelephoned him and wanted him to come to the police stationregarding the issue of a loudspeaker permit. At the police Station 1strespondent asked for the names of the speakers at the meetingwithout which information he said he was not ready to recommendthe issue of a permit. Therefore it was that he forwarded letter 1R2dated 25.12.91 giving the names of persons who would speak at themeeting, to wit : (1) Lalith Athulathmudali (2) M. D. Premachandraand (3) Premaratne Gunasekera. A permit dated 02.01.92 was issuedby the 2nd respondent Assistant Superintendent of Police for the useof a loudspeaker; it contained the following handwritten conditionswhich appeared in the body of the permit signed by the 2ndrespondent, to
wit : csj.g. d©ddca, cs® o-SOazncazst ea» a® g^eoee^z?
SsSOsicaO e*steOs> qafqe® gsocaOSsf O^eiS Q3ca gg>8.
Which translates as: “that the speakers should refrain from criticisingthe Government, any organisation or any individual. On the reverse ofpermit P3 were printed conditions (a) to (h) in Sinhala, Tamil andEnglish. Printed condition (f) was as follows : “The Officer-in-chargeof the police station of the area has every right to impose furtherconditions considered necessary to preserve the public peace".Further, a handwritten endorsement imposed by the 1st respondent
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also appeared on the reverse of the permit authorising three namedpersons to speak, to
Wit : “e®® defS® esqcoD mcSo t§8®0 epOesd <gefeao8S{
egaf£>•eef®<5nte> cgcSaeissd
uzn SmnfOc^sfO efOesd S' 5)^8 isxJj^SasOjsf esess^ai-"
A further endorsement made by the 1st respondent stated that thespeeches made at the meeting will be tape-recorded.
Petitioner D. Mohottige complains that although he expected toaddress the public meeting held on 04.01.92 he did not speak as hisname was not among the speakers named in the endorsement madeby the 1st respondent. This endorsement effectively prevented hisparticipation at the meeting. Consequently his right of free speechand expression guaranteed by Article 14(1) (a) of the Constitutionhas been violated.
Petitioner G. M. Premachandra’s name does not appear amongthe names of authorised speakers. But the name “M. D.Premachandra” has been included in the list. PetitionerPremachandra has stated in his affidavit that there is no personnamed “M. D. Premachandra. It is observed that letter 1R2 bears theinitials “M“ and “D" as against the name 'Premachandra'. Theinsertion of wrong initials in the permit is therefore not the fault of thepolice. Counsel confined his submission to saying that the fact oflimiting the number of speakers is itself violative of the right of freespeech.
Although petitioner G. D. P. Gunasekera had spoken at themeeting he protests he was unable to exercise his right of freespeech and expression fully, due he says to the said illegal restrictionimposed by the 2nd respondent in the body of permit P3.
By letter dated 13.1.92 Mr. Athulathmudali complained to theInspector General of Police that restrictions imposed as contained inthe permit were in direct violation of the freedom of speech andexpression embodied in Article 14 of the Constitution. He requestedthat the police be instructed to desist from imposing such conditionswhich affect fundamental rights of citizens.
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Mohotlige and Others v. Gunatilleke and Others
(Bandaranayake. J.)
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By letter dated 14.1.92 Ranjani Morawaka, Attorney-at-law haswritten to the 2nd respondent informing that the conditions set downin P3 violated the fundamental rights of her clients.
By letter dated 27.1.92 the IGP has replied informing thatdisciplinary action was being taken against the 2nd respondent.
The 2nd respondent by his affidavit dated 11.3.92 has stated thathe was aware that permission had been sought to use a loudspeakerin application similar to P2 submitted to the 1st respondent and thatthe 1st respondent had submitted his report and recommendation1R3. Being satisfied with the preliminary police investigations done inthis regard the 2nd respondent granted permission to use aloudspeaker. The permit was issued in terms of Section 80 of thePolice Ordinance which regulated the use of instruments producingsound. (He admits imposing the condition prohibiting criticism of theGovernment, any organisation or any individual but states that thewords “33should have appeared after the words
in P3 and have been inadvertently omitted. If those hadbeen included the condition would have read that the speakersshould refrain from criticising the Government, any organisation orany individual in an unlawful manner which condition would havebeen proper and lawful).
The 1 st respondent by his affidavit of 11.3.92 takes a differentposition. He states that no restrictions were placed on the petitionersright of free speech. Persons whose names were included in thepermit used the loudspeaker at the meeting and others whose nameswere not included in the permit also spoke. Messrs Athulathmudali,Gunasekera and Abeygunaratne who all spoke, criticised theGovernment. The Inspector’s notes of the meeting are produced 1R5.Hence, there was no infringement in fact of the rights of thepetitioners.
Counsel for the petitioners submitted that,
the imposition of the condition against criticism of theGovernment etc: on the permit was per se a restriction placed on thefreedom of speech and expression and consequently an infringementof Art: 14(1) (a).
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that upon the evidence, the 1st respondent had refused toconsider issuing a permit if the names of speakers were not given.
(The 1st respondent has not denied this averment.) It was submittedthat this requirement of insisting on knowing who was to speakplaced a restriction on the freedom of speech as at that time (ie)24.12.91, it was not possible to say with any certainty'the persons,who would speak. Once you are committed to certain persons, otherwould-be speakers are deprived of the opportunity to address apublic meeting.
The Democratic Peoples Organisation which was sponsoringthe seminar had put up banners tied to telephone posts across theroads announcing the meeting. Those banners also carried slogans.The 1st respondent had taken down the banners at 5.30 A.M. thatday – vide his notes – 1R4. When the petitioners sent him a letter ofdemand he returned the banners. It was submitted, the 1strespondent's conduct was indicative of his desire to obstruct themeeting and prevent the organisers from having a successfulmeeting.
On behalf of the respondents it was argued that there was in factno violation or an attempt at violation of a fundamental right. Therespondents’ position was that upon an application by the Presidentof the branch association, for the use of a loudspeaker at a publicmeeting by three named speakers, the 1st respondent after dueenquiry recommended the issue of a permit to the 2nd respondentwho directed the issue of a permit acting under section 80 of thePolice Ordinance. It was further submitted, endorsements on a permitdo not amount to violation of a right. Some more meaningful actiontaken must be evident restricting freedom- of speech or equality etc.No positive action was taken in any way to interfere with speechesmade although the police were present throughout the proceedings.The speakers did in fact criticise the Government – vide police notes1R5. Furthermore Lakshman Abeygunaratne who was not listed as aspeaker in P3 made an introductory speech as the person conveningthe meeting. The conditions in the permit were in any case notimplemented. Thus there had been no restraint and as the petitionershad exercised their rights there had in fact been no violation of theirfundamental rights.
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Mohottige and Others v. Gunatilleke and Others
(Bandaranayake, J.)
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The 1st respondent has not by his affidavit specifically denied thathe telephoned Abeygunaratne and got him down to the police stationand demanded to know the names of speakers without which he wasnot going to recommend the issue of a permit to use a loudspeaker.But the facts are that Abeygunaratne had made two communicationsto the 1st respondent – the first by letter P2 dated 18.12.91, seekingpermission to use a loudspeaker and by letter 1R2 dated 25.12.91.The assertions in the said affidavit P4 taken together with the fact thatit was only in the second letter that names of speakers werementioned and which letter contained nothing else and the non-denial that the 1st respondent made such a demand impels me to thebelief that what Abeygunaratne says is true and that the 1strespondent has not made a full and frank disclosure of events thatled to names of speakers being submitted to the police. I accordinglyhold that the 1st respondent demanded this information before hetook any further steps regarding the application for a permit to use aloudspeaker, and that after the issue of the permit he inserted thenames of speakers in the permit.
Section 56 of the Police Ordinance Cap. 65 deals with duties ofpolice officers. It would be his duty to use his best endeavours andability to prevent all crimes, offences and public nuisances topreserve the peace and to collect and communicate intelligenceaffecting the public peace. Section 80 of the Ordinance provides fora permit to be issued (by any Officer not below the rank of anAssistant Superintendent of Police) authorising the use of aloudspeaker in a public place etc.; it also provides for conditions tobe imposed regarding its use. The reverse of P3 carries printedconditions {supra). Printed condition (f) permits an officer-in-chargeof a police station to impose any conditions necessary to preservethe public peace. The meeting was in fact to be held in a publicplace.
It would appear to me that the said printed condition (f) is nothingmore than a repetition of the powers vested in a police officer interms of the substantive law as found in S56 (a), (b) and (e). Iaccordingly hold that the 1st respondent had a legal right to imposecondition (f) aforesaid. However whether the 1st respondent couldhave made the endorsements he has made is another question.There is no challenge to his endorsements that speeches made will
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be tape-recorded. But the petitioners challenge his right to list andname speakers. The petitioners complain that this amounts to theimposition of a restriction as to who may use the loudspeaker. The 1strespondent seeks to explain this away by stating it was for theapplicants to note that in accordance with the permission sought, thenamed persons have been permitted to use a loudspeaker at themeeting. Here the 1st respondent is persisting in saying that nameswere signified only because the applicant indicated that thosepersons were to be the speakers. In fact the endorsement is couchedin language suggesting that the police are merely responding to aspecific request. I have earlier in this judgment held that was not sobut that names were submitted in response to a specific policerequest.
The nature of the document on which names appear in this case isalso highly relevant to the question whether a condition was imposedby the insertion of particular names. The document under review is apermit for the use of a loudspeaker in that speeches may bebroadcast to be heard by all attending the meeting. When aparticular name is inserted in such a permit, then taken in its ordinarynatural sense it means that permission is limited to those personsnamed. And this is being done with an eye on the preservation ofpublic order. In my view this amounts to nothing more or less than theimposition of a condition as to the use of a loudspeaker. In the instantcase it has been done by an Inspector of Police required by law tosafeguard the public peace and with an awareness of his powersand duties both under Section 56 aforesaid and the printedconditions on the permit which I presume he knew both as apoliceman and by his conduct enumerated above. In thecircumstances I hold that the endorsement made by the 1strespondent on the reverse of P3 permitting three named speakers theuse of a loudspeaker was a deliberate imposition of a conditionrestricting the speakers at the meeting to those whose namesappeared on P3 and none other. Such a restriction does not have thesanction of law. Specific names inserted by the police on a permitwould naturally convey the message that those whose names are notincluded are excluded from using a loudspeaker. This in my view isan unfair condition besides being without lawful authority. Noconvenor of a public meeting can say weeks in advance all who may
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(Bandaranayake, J.)
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speak. Demanding disclosure of names beforehand can have theeffect of silencing people who may otherwise wish to contribute toproceedings by participating. Both the demand to know the names ofspeakers and naming them in a permit may thus constitute a violationof the right to free speech guaranteed by Article 14 (1) (a) of theConstitution of persons who may otherwise have wished to speak.
We find that petitioner D. Mohottige says he intended to addressthe seminar but regarded himself as not permitted to use theloudspeaker and so he refrained from speaking. The endorsementmade by the 1st respondent thus assumes an unwarranted intrusionon Mohottige’s freedom of speech and expression. The conduct ofthe 1st respondent in this regard was obviously deliberate and hasinterfered with Mohottige's fundamental right to free speech andexpression constituting a violation of Article 14 (1) (a) aforesaid.
As far as the other two petitioners Premachandra and Gunasekeraare concerned. I am unable to hold there has been an infringement ofthe freedom of speech and expression by reason of the endorsementmade by the 1st respondent on the reverse of P3. Gunasekera in factspoke and Premachandra was faulted by a mistake of the convenors. I
I now turn to the endorsement made by the 2nd respondentprohibiting criticism of the Government. Freedom of speech andexpression includes the right to fairly and within reasonable limitscriticise a Government. This has been widely recognised in civilizedjurisdictions as a natural right inherent in the status of a free citizen.The people have a right to be informed of public issues throughsources outside and independent of the Government. This freedomhowever can be restrained where its exercise is intended to or has atendency to undermine the security of the state or public order, orincite feelings of disaffection or illwill against the State, or bring theGovernment into hatred or ridicule etc. But the effect of the conditioncontained in P3 against criticism of the Government is in the nature ofa blanket prohibition against saying anything against the Governmentor its activities. It tends to nullify democratic Government as isunderstood in this country. This the 2nd respondent could not havedone. Learned Counsel for the State acknowledges that theimposition of this condition cannot be supported. The IGP’s letterdated 27.1.92 to Athulathmudali stating that disciplinary action wasbeing taken against the 2nd respondent in this regard also suggests
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that the head of the police department acknowledges that theaforesaid endorsement made by the 2nd respondent wasunwarranted and unlawful. To my mind such a condition wouldnecessarily evoke feelings of fear and confusion in the public mindand of those wishing to speak at the seminar though upon theevidence speakers did defy the ban. It is now too late to say that theendorsement made by the 2nd Respondent was due to carelessnessand not intended as was submitted on his behalf but that all that wasintended was to prevent unlawful criticism. Such could be easier saidwith hindsight. It is more probable upon the evidence that the 2ndrespondent was aware of the import of his endorsement which wasdeliberately done for some reason which is not clear. That speakerswere in fact critical of the Government and that the police did notstop them or interfere with the proceedings is at best an entreatymade in mitigation of the mischief done.
Upon the evidence this endorsement made by the 2nd respondenthas restrained the 1st Petitioner D. Mohottige unlawfully. There hastherefore been an infringement of his fundamental right to freespeech; the 2nd petitioner cannot be heard to complain for reasonsalready given; the 3rd petitioner has exercised his rights asevidenced by notes 1R5 which have not been challenged.
There is insufficient evidence placed before the Court of violationof the equality rights of the petitioners who are therefore not entitledto a declaration upon such allegation.
As compensation for the infringement of Fundamental Rightsguaranteed by Article 14(1) (a) the State will pay a sum of Rs. 7500/-to petitioner Dharmadasa Mohottige for violation of his freedom ofspeech consequent to the unlawful endorsement made by the 1strespondent on P3 and the unlawful endorsement made by the 2ndrespondent also on P3. The State will pay Rs. 2000/- as costs to the1st petitioner D. Mohottige. No costs in respect of applications of 2ndand 3rd petitioners.
FERNANDO, J. -1 agree.DHEERARATNE, J. -1 agree.
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Mohottige and Others v. Gunalitleke and Others
(Bandaranayake. J.)
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Cases considered:
Joseph Perera v. Attorney General. SC. 107-109/86; SC Minutes of 25.5.87.
Ratnasara Thero v. Udagampola 1983 1 SLR 461.
Visvalingam v. Liyanage 1984 2 SLR.
Austin v. Keele (1971) 402 US 415.
Terminello v. Chicago (1949) 337. US 1.
Palco v. Connecticut (1937) 302. US 319.
Francis v. Chief of Police (1973) 2 AER 251. (PC).
Grisswold v. Connecticut (1965) 381. US 479.
Thornehill v. State of Alabama 310 US 88.
West Virginia State Board v. Barnette (1943) 319 US 624.
Application allowed.
Compensation ordered.