019-SLLR-SLLR-1995-V-1-UPALIRATNE-AND-OTHERS-v.-TIKIRI-BANDA-AND-OTHERS.pdf
UPALIRATNE AND OTHERS
v.
TIKIRI BANDA AND OTHERS
SUPREME COURT.
FERNANDO, J.
AMERASINGHE, J. ANDDHEERARATNE, J.
S.C. (F.R.) APPLICATION NO. 86/95MAY 29, JULY 20, 21 AND 25, 1995.
Fundamental Rights – Ousting of Time-Keepers appointed by the CentralProvince Private Bus Workers Co-operative Society by unauthorised persons -Role of State Officials and Police – Articles 12(1), (2), 17 and 126 of theConstitution – Executive and administrative action – Rules 44(1), 44(1) (c) of theSupreme Court Rules.
The Central Province Private Bus Workers Co-operative Society (21st respondent)was a duly registered body under the Co-operative Societies Act, No. 5 of 1972. Itwas formed, inter alia, for the purpose of providing the Transport Ministry of theCentral Provincial Council with certain services such as ensuring that private omnibuses arrived and departed on time and providing the Transport Ministry withdata gathered from the field through “Time-Keepers” which assisted the Ministryin regulating private omnibus operations. In terms of clause 4 of a contractentered into between the Society and the Council on 21 January 1993 andamended on 30 March 1993, subject to certain terms and conditions, the Councilagreed to pay for the services it had agreed to perform. The Society in turn paidits members on a monthly basis for the services performed by them. On 14February 1995, 35 members of the Society including the three petitioners wereengaged in duties for their Society in Kandy as "Time-Keepers” at various points.They had identity cards where their names and distinctive identification numberswere given.
From about 14 February 1995 the 7th to 19th respondents usurped the jobs andpowers, functions and duties of the petitioners and were unlawfully purporting tocontinue in such employment. The respondents position is that they were given tounderstand that the Time-Keepers posts at the Kandy Bus Stand had fallenvacant and they, except 8th, 9th and 18th respondents moved in individually andcommenced work but did not do so unlawfully or forcibly.
The petitioners alleged that on 14 February 1995 a group of over 100 personsarmed with iron rods and poles arrived at the Kandy Bus Stand in the morningand assaulted and/or abused and/or intimidated the petitioners and theircolleagues and prevented them from performing their legitimate duties andforcibly and unlawfully took over- and were functioning as Time-Keepers.
Held:
The 8th, 9th and 18th respondents have been mistakenly made parties tothese proceedings. Their inclusion was due to mere error and not on account ofany attempt to deceive and mislead the Court. The preliminary objection that thepetition should be rejected on this ground fails.
There is no obligation to tender an affidavit from any one or more of thepetitioners. What is required is evidence of the facts submitted through affidavitsand other documents as are available to them (Rule 44(1) (c)). The contentionthat all the petitioners have not given affidavits and there is non-compliance withRule 44(1) also fails.
The respondents had no right to the specified status of Time-Keepers andtherefore their so called “moving in” and commencement of work as Time-Keepers was unlawful and void of legitimacy. It was certainly not open to anyperson or group of persons to take the law into their own hands and arbitrarilyand unlawfully drive away the officially recognized Time-Keepers from theirplaces of work, intrude upon and infringe their rights and encroach upon theirlegitimate domain, thereby creating the vacancies into which the new Time-Keepers “moved in”.
The alleged involvement of the first Respondent R. J. Tikiri Banda, Co-ordinating Secretary to Hon. Colonel Anuruddha Ratwatte, M.P., and Ministerof Irrigation, Power and Energy, and Deputy Minister of Defence, the secondrespondent.
The first respondent openly directed and co-ordinated the activities of the illegalgang of over 100 persons who invaded the Bus Stand and assaulted and/orabused and/or intimidated the petitioners and their colleagues and preventedthem from performing their legitimate duties at the Bus Stand in the Kandy Townon 14 February 1995 and forcibly and unlawfully took over and were nowperforming the functions of Time-Keepers.
Having regard to all the circumstances, it seems more probable than not that TikiriBanda played a key role in the unlawful eviction of the Time-Keepers who weremembers of the Central Bus Workers' Co-operative Society and in placing otherpersons in substitution. He seems to have been the master-mind who plannedand directed the enterprise in question. He was particularly and specially markedfor espousing the cause of the new Time-Keepers and singularly andconspicuously daring to implement by bold and extreme and unlawful measuresapply described as an act of thuggery, a scheme to provide employment forcertain favoured persons. The evidence sufficient entangle Tikiri Banda and hehas been unable to extricate himself.
The alleged involvement of the Second Respondent the Hon. ColonelAnuruddha Ratwatte, M.P., Minister of Irrigation, Power and Energy, andDeputy Minister of Defence.
Although the second respondent may have planned to provide employment forcertain persons the ousting of the Time-Keepers by unlawful means was not aninevitable or necessary eventuality of his design. Its execution was a completelydifferent matter. It has not been established that there involvement of the police,the 1st respondent and the use of official vehicles could not have taken placewithout the knowledge, involvement and acquiescence of the second respondent.The use of official vehicles does add weight to the submission that there wasState action and the second respondent may have been ultimately accountableas the Minister in charge of the various departments for the use of official vehiclesbut it has not been established that he personally ordered or sanctioned their use.Nor can he be held vicariously liable for the unauthorised acts of his officers,including those of his Co-ordinating Secretary Tikiri Banda, although he may havepretended to have been acting with his authority.
The alleged involvement of the Peoples Alliance
The new Time-Keepers may have been the beneficiaries of a spoils system ofsome sort favouring a certain group of persons. However, it has not beenestablished that the ousting and replacement of the Time-Keepers depended onpolitical affiliations and therefore the claim that Article 12(2) of the Constitutionwas violated an account of discrimination based upon political opinion must fail.
The alleged involvement of the 7th to 19th respondents
The 8th, 9th and 18th respondents were mistakenly named as respondents andthey were not in any way involved in the events of 10 and 14 February 1995.
Each and everyone who took office as Time-Keepers at the Kandy Bus Stand onand after 14 February 1995 were and continue to be in unlawful occupation ofsuch offices and to that extent are responsible for depriving the former Time-Keepers of their employment and for unlawfully obstructing the Central ProvincialCouncil and its Ministry of Transport in particular, from discharging its legitimateduties. The alleged operations of 10 and 14 February were for the purpose ofplacing the new Time-Keepers in occupation of the positions held by members of
the Co-operative Society. The new Time-Keepers were the beneficiaries of theunlawful operations. They are obstacles in the way of the discharge of the dutiesand functions of the duly appointed and only legitimate Time-Keepers.
Not all the new Time-Keepers may have been personally involved in the acts of“thuggery” although some of them like Joseph Deva the 10th respondent mayhave been involved. Joseph Deva’s position that the new Time-Keepers includinghimself came to occupy their positions without force and that they were workingtogether with the old Time-Keepers is not supported by the evidence.
Although some or even most of the new Time-Keepers may not have assaultedand intimidated the old Time-Keepers, they had all concurred and combinedprivity with the more active and conspicuous participants, including officers of theState, to illegally and reprehensibly oust the old Time-Keepers and to take theirplaces and continue to unlawfully function as Time-Keepers. They did not happento be available to fill the vacancies in fortuitous circumstances.
The alleged involvement of the Police
So far as the events of 10 February 1995 are concerned where locks had beenbroken and some persons had unlawfully entered the premises, the Police whilerealizing the importance of taking appropriate action to remove the unauthorizedpersons took no steps to remove the trespassers and the events of the day hadbeen entrusted to a mere Reserve Constable without any supporting staff.However the attempt to oust the Time-Keepers on 10 February did not succeeddespite the absence of the assistance of the Police. Yet the second attempt of 14February 1995 was a complete success. Sub-Inspector M. R. Vijitha Kumara the5th respondent was well identified in the incident of 14 February 1995 and he wasseen forcibly dragging Time-Keepers from their sheds. In addition to him, PoliceConstables Nos. 16520 and R 11064 and Police Officer "Pol Abey” who arrived inan Irrigation Department vehicle were identified as being present at the scene ofthe incident. Police Vehicle No. 32 – 4563 carrying about half a dozen policeofficers dressed in civil clothes were also identified.
The fact that persons were trespassing on the premises of the Time-Keepers,assaulting and intimidating people in unlawful behaviour cannot be explainedaway by stating that the bus stand is a public place. This explanation of P. B.Ekanayake Asst. Supdt. of Police the third respondent had whitewashing as itsprincipal object. He was trying to cover up the unlawful activities in question.Police had taken no action on the complaints of assault and trespass.
Per Amerasinghe, J:
“The Police function fulfils a most fundamental obligation of Government to itsconstituency. Public safety, the maintenance of public order and the preservationof peace and tranquility depend not only on the existence of adequate laws butalso on the way in which it is applied.
By necessity the State has cloaked policemen with substantial discretionary power.The Police may classify persons and draw lines in the application of laws, butdiscrimination must not be based upon impermissible criteria or arbitrarily used tofavour or burden a group of individuals. In the matter before this Court, theenforcement of the law against those who were alleged to have violated the law,and the failure to afford protection to those who were in need of protection areunsupported by any neutral justification and were either totally irrational or entirelymotivated by a desire to achieve some impermissible purpose. If I might borrow thewords of Matthews, J. in Yick Wo, the police have used their powers ‘with a mindso unequal and oppressive as to amount to a practical denial by the State of thatequal protection of the laws which is secured to the petitioners, as to all otherpersons, by the broad and benign provisions of “Article 12(1) of the Constitution".
Article 12(1) of the Constitution was violated and continues to be violated by thePolice. The Police were implicated because of the role they had played in oustingthe old Time-Keepers and in unlawfully installing and keeping in office a new groupof people.
State responsibility
The acts of the first respondent are those of a State Officer for the purpose ofdetermining whether he performs executive or administrative functions and arefairly attributable to the state and therefore engaged state responsibility for thepurposes of Articles 17 and 126 of the Constitution. He may have exceeded thescope of his authority. However, when a public officer takes action relating to hisoffice, those actions should be considered to be executive action even if theyexceed the scope of his authority, for he acts under colour of his office.
The state is also accountable because it has not merely been passive and toleratedthe unlawful ousting of the old Time-Keepers by private persons, yielding readily tothe influence of others and by its disinclination to act but also because it hasassociated itself with it through the positive action, encouragement and assistanceof the Police force and its officers. The replacement of the Time-Keepers wasbrought about by the significant aid and rendered by state officials, including thefirst respondent the want of adequate action of the police in relation to the events of10 February 1995 and the active role played by the Police on 14 February, 1995and by their subsequent lack of action.
Cases referred to:
Jayasinghe v. Principal, Anuta Vidyalaya and Others S.C. Application 81 of 1994S.C. Minutes 26 May 1994.
Railway Express Agency Inc. v. New York 336 US 10-6 (1949).
Yick No v. Hopkins 118 US 356 (1886).
Perera v. University Grants Commission FRD Vol. 1 p. 103.
Neal v. Delaware 25 Law. Ed. 567.
Dennis v. Sparks 449 US 24 (1950).
Tower v. Glover 467 US 914 (1984).
Lugar v. Edmonson Oil Co. Inc. 457 US 922, 938 – 939.
Mohammed Faiz. v. Attorney-General and Others SC Application 89/91 S.C.Minutes of 19 November 1993.
Screws v. United States 325 US 91 (1945).
Griffin v. Maryland378 US 130 (1964).
Somawathie v. Weerasinghe (1990) 2 Sri LR 121.
APPLICATION for relief in respect of violation of Fundamental Rights.
L. C. Seneviratne, P.C. with Nigel Hatch for petitioners.
Nihal Jayasinghe D.S.G. for 2,3, 4, 5 and 22nd respondents.
Dr. Jayatissa de Costa with E. A. Upatissa for 1st respondent.
Gemini Perera with P. S. H. de Silva for 7, 8, 10, 11, 12, 13, 14, 15, 16, 17 and 18respondents.
Cur. adv. vult.
September 05, 1995.
AMERASINGHE, J.
The Central Province Private Bus Workers’ Co-operative Society -the 21st Respondent was a duly registered body under the Co-operative Societies Act, No. 5 of 1972. (P1A). It was formed, inter alia,for the purpose of providing the Transport Ministry of the CentralProvincial Council with certain services. (P1 Clause 3). The Society,inter alia, ensured that private omnibuses arrived and departed on timeand provided the Transport Ministry with data gathered from the fieldthrough “Time-Keepers" which assisted the Ministry in regulatingprivate omnibus operations. (P12). In terms of clause 4 of a contractentered into between the Society and the Council on 21 January 1993,and amended on 30 March 1993, subject to certain terms andconditions, the Council agreed to pay a sum of Rs. 302,850/- permonth to the Society for the services it had agreed to perform. TheSociety in turn paid its members on a monthly basis for the servicesperformed by them (P15).
On 14 February 1995, thirty-five members of the Society, includingthe three Petitioners, were engaged in duties for their Society inKandy as “Time-Keepers” at various points. The names of themembers, their distinctive identification numbers (each member hadan identity card issued by the Society – para. 4 of P9) and workstations on 14 February 1995 are set out in P3.
The Petitioners in paragraph 20 of their Petition alleged that “fromor about 14.2.1995 the 7th to the 19th Respondents whose namesand identities the Petitioners subsequently became aware of, haveusurped the jobs and powers and functions and duties of thePetitioners … and are unlawfully purporting to continue in suchemployment.”
In paragraph 19 of his affidavit dated 19 May 1995, the FirstPetitioner stated that the identities of other persons who had ‘usurpedthe functions of Time-Keepers’ had been ascertained after the filingof the application of the Petitioners and submitted a list of the namesand addresses of eighteen persons. (P16).
The 7th, 8th, 11th, 12th, 13th, 14th, 15th, 16th, 18th and 19thRespondents in their affidavit dated 23 April 1993 have pointed outthat the 9th Respondent had died in 1978 and that the 8threspondent is employed as a Technical Officer at Yatiyantota; andthat the 18th Respondent is a permanent employee of the KandyMunicipal Council. The Minister of Transport in paragraph 4 of hisaffidavit excludes the 8th and 9th Respondents from the category ofthose who had forcibly taken over the functions of the Time-Keepersbut does not mention the 18th Respondent. The statements of theRespondents who did take over the functions with regard to the 8th,9th and 18th Respondents are supported by other documentaryevidence, and I hold that the 8th, 9th and 18th Respondents havebeen mistakenly made parties to these proceedings. However, I amunable to accept Mr. Perera’s submission that the rest of theaverments of the petitioners must therefore be disbelieved. Nor am Iable to accept Mr. Jayasinghe’s submission raised by way of apreliminary objection that the petition should be rejected on the basisof the decision of this Court in Jayasinghe v. Principal, AnulaVidyalaya and Others ,1). The Petition was rejected in that case
because on the face of the affidavit and petition the Petitioner'sstatements were manifestly false and necessarily known to thePetitioner to be untrue. In the matter before us, the First Petitioner inParagraph 15 of his affidavit dated 18th May 1995 admits themistakes of naming Maithri Bandara Wijesinghe as the 8thRespondent and S. Bandara Wijesinghe as the 9th Respondent, andexplains that the mistakes were made in the process of “urgentlycollecting material to file the instant application throughinadvertence.” I am satisfied that the inclusion of certainRespondents was due to mere error and not on account of anyattempt to deceive or mislead the Court and I therefore hold that thepreliminary objection cannot be sustained.
Mr. Jayasinghe raised another objection in limine : He submittedthat “the Petitioners cannot have and maintain this application and/orthat the application is not properly constituted due to non-compliancewith Rule 44(1) in that all these Petitioners have not given affidavits.”The obligation of a Petitioner is to tender in support of the petition“such affidavits and documents as are available to him.” (Rule 44(1)(c)). There is no obligation to tender an affidavit from any one or moreof the Petitioners. What is required is evidence of the facts submittedthrough affidavits and other documents. I therefore overrule theobjection.
The 7th, 8th, 11th, 12th, 13th, 14th, 15th, 16th, 18th and 19th,Respondents, in paragraph 11 of their affidavit dated 23 April 1995admit the fact that they did take over the work of Time-Keepers andhave continued to function as Time-Keepers. This position wasconfirmed by Mr. Gamini Perera who appeared for them. How didthey come to function as Time-Keepers? The explanation ofMr. Jayasinghe, that the new Time-Keepers had formed a Co-operative Society to function as Time-Keepers was abandoned byhim when it was pointed out that not only was there no evidence ofthat but also that the Respondents concerned were at great pains toassert that they did not act collectively as.an organized group. Theyhad to do so in their attempt to deny the charge of complicity in whatthe Petitioners alleged in paragraph 26 of their petition was a“diabolical plan to forcibly take over the functions of Time-Keepers.”
In response to paragraph 20 of the Petition, in which the Petitioners
stated that “from or about 14.2.1995 the 7th to the 19th Respondents… have usurped the jobs and powers, functions and duties of thepetitioners … and are unlawfully and purporting to continue in suchemployment,” the Respondents concerned, in paragraph 11 of theiraffidavit of 23 April 1995 stated as follows:
“We deny averment No. 20 and respectfully state that on beinggiven to understand that the Time-Keepers posts at the KandyBus Stand have fallen vacant, we, except 8, 9 and 18thRespondents, moved in individually and commenced work.Since then we continued to perform [the] normal functions ofTime-Keepers thereat without objections and/or hindrance. Wedid not unlawfully commence work and purported to continue insuch employment as we have not gone there unlawfully and/orforcibly.”
That was the position supported by learned Counsel whoappeared for the new Time-Keepers. Mr. Perera did not attempt toexplain how the thirty-five Time-Keepers of Kandy came to suddenlyvacate their posts without attributed or assignable cause. Nor was heable to explain how the new Time-Keepers “were given tounderstand” that the posts had fallen vacant and at the opportunetime happened to come upon the good news and seized theopportunity of becoming Time-Keepers. The legitimacy of the actionsof the new Time-Keepers was challenged by the Petitioners who, inparagraph 20 of their Petition, said that the Respondents’ concernedhad “usurped” their jobs, powers, functions and duties and that theywere “unlawfully purporting to continue in such employment."
Assuming that a post falls vacant, does it entitle any person to“move in” and fill that vacancy? The harm and evil consequenceswrought by such a course of action are so plain that a personcapable of ordinary reasoning and reflection should not requireelaboration. Further explanation, however, may not be out of place inthe extraordinary circumstances of this case.
The Transport Ministry of the Central Provincial Council has a dutyto regulate the transport services of the Province. The specialbusiness of assisting the Ministry with regard to certain specifiedmatters and manner of performance was, by a contract (P2),entrusted to the Central Province Bus Workers’ Co-operative Society.The Society discharged its duties through its members. The status -the legal standing and position – of the Time-Keepers of the CentralProvince had to be determined by their membership of that Co-operative Society. As long as the contract between the Council andthe C.P.B.W. Co-operative Society remained in force, only membersof that Society legally enjoyed the right to function as “Time-Keepers". And, understandably, that is why the Minister of Transportof the Central Provincial Council, Mr. Keheliya Rambukwella, – the20th respondent – (See paragraph 9 of the affidavit ofMr. Rambukwella dated 10 May 1995) – in an attempt to resolve thismatter, “offered to obtain employment for the said group of personswho had unlawfully usurped the functions of Time-Keepers providedthey joined the [Central Province Private Bus Workers’ Co-operative] Society.” (The emphasis is mine.). (See also paragraph12 of the affidavit of the President and Secretary of the Co-operativeSociety and the first and third Petitioners – P13 quoted below.).
The new Time-Keepers insist that they did not “unlawfullycommence work" and that they had “not gone there unlawfully”. Imust say that I have no difficulty or doubt in holding that they had noright to the specified status of Time-Keepers’ and therefore that theirso-called “moving in” and commencement of work as Time-Keepers'was unlawful and void of legitimacy.
The new Time-Keepers claimed that after their assumption of officethey had “continued to perform [the] normal functions of Time-Keepers without objections and/or hindrance”. The discharge of theduties of Time-Keepers as a normal, regular matter could only beperformed in a manner conformable to the standards, terms andconditions agreed to between the Provincial Council, which wasresponsible for regulating transport services, and the Time-Keepers.The “normal duties” were services attached to official employmentunder constituted authority. Any variation, as the Minister of Transportexplained at the Governor’s meeting held on 13 March 1995, requiredthe approval of the Board of Ministers of the Council. (Para. 6 ofDocument A). There was no connection between the Council and thenew Time-Keepers. The new Time-Keepers had no obligations or
directions or standards, or terms or conditions relating to theperformance of their duties; there could be no monitoring or controlof their activities, for there was a total lack of accountability to theCouncil or to anyone else. As a result, the Director of Transport, in hisreport to the Minister of Transport (P12), complained of the “serioussituation” that had arisen and listed several reasons for thatconclusion including the fact that
“the regulatory functions cannot be exercised;"
“management information essential from the field cannot beobtained";
“buses that default in payment of various dues cannot bechecked".
“renewal of route permits could be neglected by the busoperators and that would seriously affect the PC’s revenue.”
The Minister of Transport of the Central Provincial Council,Mr. Keheliya Rambukwella, in paragraph 14 of his affidavit dated 10May 1995, stated that “as a result of the action of the said usurpers… grave and irreparable loss ha[s] been caused to those Time-Keepers affected and the members of the public who use the bustransport services inasmuch as inter alia, the regulatory functionsexercised by the [Central Province Private Bus Workers’ Co-operativeSociety] through the said Time-Keepers have been jeopardized andaffected.” In his letter to the Deputy Inspector-General of Police(P10A) dated the 16th of February 1995, Mr. Rambukwella refers tothe “Crisis situation in the Bus Stands in Kandy Town.” Havingexplained the role of the Co-operative Society and having adverted tothe fact that “unlawful individuals had invaded the bus stands inKandy town … and chased out the members of the Co-operativeSociety”, “the legal agent” of the Ministry of Transport of the CentralProvincial Council, “who were performing their legitimate duties”,.Mr. Rambukwella stated as follows:
“05. You would observe the lawlessness involved in thisinstance. Yet I was shocked to learn that some of the PoliceOfficers were also aiding and abetting the intruders.
It is no secret that the intruders have invaded the busstands to earn money from the bus operators. Before long, thebus operators would rise against this exploitation. Those whohave been ousted will also fight to come back to their legitimateplace of work and they have an understandable cause for it.Thus there will be three parties, vociferous and aggressive. Atany moment, breach of peace is imminent and most probablywith damages to buses. The innocent passengers, especiallyschool children, in busy and crowded points like the Market,bus stand and Goods Shed bus stand etc. will be the helplessvictims of a violent crisis.
In addition to these serious repercussions as far as the busstands are concerned, there is the irredeemable adverse effecton the law enforcing capacity of the Provincial Council andconsequently of the Police, because the entire transportmanagement system is threatened. Hence a total break down ofthe administration would be unavoidable.
You would undoubtedly understand the seriousness of thissituation. What would be the implications of the passivities onthe part of the Police and the alleged support to the intruders?
I have therefore to request you emphatically that immediatesteps should be taken to remove the intruders from the busstands, allow the legitimate employees to function in theirplaces of work and provide protection to them. I should bethankful for your immediate response as to what steps are beingtaken."
The gravity of the situation is reiterated by Mr. Rambukwella in hisletter to the Governor of the Central Province dated 1st March 1995(P10B) and in the report Mr. H. M. Somatilake, the Director ofTransport of the Provincial Council (P12).
Moving into the vacant posts was indeed, and as might reasonablyhave been expected, fraught with mischief. I shall refer to this matteragain in dealing with the question of the involvement of the police, inrelation to Mr. Jayasinghe’s submission that the incident was a trivialmatter.
In my view the claims of the new Time-Keepers that they hadassumed office lawfully, that they were performing the normalfunctions of Time-Keepers, and that they were doing so withoutobjections cannot be accepted. They profess and claim that becauseof their outward bearing and deportment as Time-Keepers, they areentitled to continue to be Time-Keepers. They are not. In my view theresponse that the new Time-Keepers “purported” to continue “in suchemployment” is a devious way of pleading off from the imputation ofthe Petitioners that they were usurpers. It was not a satisfactoryresponse to the averments in paragraph 20 of the Petitioners’ affidavitchallenging the legitimacy of the assumption and continuation inoffice of the new Time-Keepers.
As for remuneration, Mr. Gamini Perera, said that the owners of thebuses paid the new Time-Keepers. He did not think this resulted ina conflict of interests that impeded their regulatory functions andsaid that the previous Time-Keepers too had been paid by theowners. Dr. de Costa, Mr. Jayasinghe and Mr. Perera suggested thatit was the practice of extorting money from the owners that had led totheir removal by what Dr. de Costa described as “an act of thuggery”perpetrated by certain members of the public. The report of AssistantSuperintendent of Police D. B. Ekanayake (3R3 page 5) seems tosupport the view that there was indeed such a notion; but there is noindication of how he arrived at that conclusion. On the other hand, hisown belief was that the matter of the Time-Keepers appears to havehad a political basis, although even then, as we shall see, the pictureis not altogether clear and, on the evidence now available, he mayhave been mistaken. As I have pointed out, the established systemprovided for the payment on a monthly basis by the Co-operativeSociety. With regard to what they directly obtained from bus owners isset out in paragraph 21 of the petition as follows: “Furthermore, thepetitioners and those affected have also been deprived of earning aproportionate part of the sum of around Rs. 500 per day whichwas paid to them as a matter of practice by the Bus Operators for theservices rendered.” (The emphasis is mine). Was this anobjectionable practice? I think it was, both because it was expresslyprohibited by Clause 11 of the contract, as well as, as a matter ofprinciple, regardless of the amount involved. It was then for theDirector of Transport and President and Secretary of the Society totake disciplinary action against the members of the Societyconcerned in terms of the machinery provided by the contract. (Seeclauses 8,9 and 10).
As Assistant Superintendent of Police Mr. D. B. Ekanayake foundafter his investigations (3R3 at p. 4 in fin. – 5), the Time-Keeperswho were ousted were acting in accordance with the terms of alawful contract of employment. It was certainly not open to anyperson or group of persons to take the law into their own hands andarbitrarily and unlawfully drive away the officially recognized Time-Keepers from their places of work, intrude upon and infringe theirrights, and encroach upon their legitimate domain, thereby creatingthe vacancies into which the new Time-Keepers “moved in”.Mr. Ekanayake in his report attempted to give a harmless, innocentand fair appearance to the faults and blemishes of the 14th Februaryand cover up, conceal and gloss over them. He stated in his report(3R3 at p. 5) that because the bus stand was a public place, thepresence of the new Time-Keepers was not unlawful. The matter forinvestigation was not the right of members of the general public to beat the bus stand but how and why the legitimate Time-Keepers wereforcibly ousted by a certain group of persons who were not at the busstand as passengers but involved in one way or another with theousting and replacement of Time-Keepers. I shall refer to this matteragain in dealing with the question of the involvement of the police.
Learned Counsel for the Respondents did not deny that thenew Time-Keepers had occupied and do continue to occupy thevacancies created after the forcible eviction of the Petitioners; but,understandably, they sought to demonstrate that each of their clientshad no hand in the forcible eviction.
It is convenient to deal with the matter of involvement andresponsibility under six heads:
The alleged involvement of the First Respondent;
The alleged involvement of the Second Respondent;
The alleged involvement of the 7th to 19th Respondents;
The alleged involvement of the Police;
The alleged involvement of the Peoples’ Alliance; and
State responsibility.
THE ALLEGED INVOLVEMENT OF THE FIRST RESPONDENT:The First Respondent is Mr. R. J. Tikiri Banda, Co-ordinatingSecretary to Hon. Colonel Anuruddha Ratwatte, M.R and Minister ofIrrigation, Power and Energy, and Deputy Minister of Defence, theSecond Respondent.
In paragraph 15 of the Petition it is alleged that on 14 February1995 “a group of over 100 persons armed with iron rods and polesarrived at the Kandy Bus Stand in the morning and assaulted and/orabused and/or intimidated the Petitioners and their colleagues andprevented them from performing their legitimate duties at Bus Standsin the Kandy town and have forcibly and unlawfully taken over andare now performing the functions of Time-Keepers from 14.2.1995 atthe Kandy Bus Stand.” In paragraph 18 of the Petition it is allegedthat the First Respondent “was openly directing and co-ordinating theactivities of the said illegal gang on 14.2.1995 at the said BusStand…”
The averment in paragraph 18 of the petition is supported byparagraph 19 of the affidavit of the First petitioner, Mr. K. G.Upaliratne, dated 14 March 1995, and reiterated by him in paragraph5 of his affidavit dated 18 May 1995.
In paragraph 19 of the Petition, the Petitioners alleged that the FirstRespondent “had threatened K. G. Upaliratne (1st Petitioner) at theKandy Police Station on 14.2.1995 near the gate of the said PoliceStation when the Petitioner had gone to the Police Station to make acomplaint in relation to these incidents.” The First Respondent makesa general denial of the averments in paragraph 19 of the Petition andclaims that he was at Wattegama at a meeting from 10.00 hours to14.00 hours but does not specifically mention the incident outside thePolice Station.
In his statement to the police on 18.2.95 (P14) Mr. Upaliratnestated that when he and others were outside the Police Station intowhich their President and Secretary went to make a complaint, theCo-ordinating Secretary of Mr. Anuruddha Ratwatte, “Tikiri”, wentinside the Station and came out and said that the former Time-Keepers had “eaten enough" for 17 years and had been thrown outas it was time for “our people to eat.” In the same statement to thePolice (P14 page 3), referring to an incident on 17 February 1995,Mr. Upaliratne stated that “Tikiri” arrived in a “Pajero" bearing theRegistration No. 64 – 3201 and asked him to tell the President andSecretary of the Society to meet him.
In paragraphs 7 and 8 of his affidavit dated 14 March 1995 (P8),Mr. A. P. K. Liyanage, after describing various incidents that occurredon 14 February 1995, including an assault on one of the Time-Keepers, stated as follows:
“7. I state that when I saw these incidents I returned to myshop. I then saw Mr. Tikiri Banda, the Co-ordinating Secretary tothe Hon. Colonel Anuruddha Ratwatte, M.P., Minister ofIrrigation and Deputy Minister of Defence, with others alongsidethe said Irrigation [Department] Pajero giving directions tovarious persons and the operations that went on.
I state that the said Tikiri Banda was directing persons tothe several sheds occupied by the several Time-Keepers astheir offices. I saw the said persons who were being directed asaforesaid forcibly evict the Time-Keepers working there andforcibly occupy those sheds.”
In paragraph 12 of his affidavit, Mr. Liyanage stated that thevehicle bearing the Registration No. 64 – 3201 was “involved in theviolent operation”. In the written submissions made on behalf of theFirst Respondent it is stated that “This is the Registered number ofthe vehicle normally used by the 1st Respondent for his officialtravelling.”
In their affidavit dated 14 March 1995 (P9), Mr. N. P. S. S.Nissanka, the President, and Mr. R. M. T. B. Ranatunga, theSecretary, of the Central Province Private Bus Employees Co-operative Society, after describing the forcible ousting of themembers of their Society by an armed gang of persons, stated inparagraph 6 that “We have now become aware that the said gang ofunauthorised persons had the direct assistance of … the 1stRespondent, Mr. Tikiri Banda the Co-ordinating Secretary of the Hon.Minister of Irrigation and Deputy Minister of Defence…"
In his report to the Senior Superintendent of Police dated 23February 1995 (3R3 at p. 3) the Assistant Superintendent of Police,Mr. D. B. Ekanayake, reference is made to the fact that one Mr. TuanMehroon had said that, although he could not identify those whocommitted the acts of assault, one of such persons referred toanother person who was present as “Tikiri Aiya”.
Dr. de Costa submitted that “Tikiri" was a commonly used term ofaffection to describe a younger person. If that were so, ‘Tikiri Aiya”was not such a reference but perhaps a reference to an older personnamed “Tikiri”. Or was the term ‘Aiya’ used out of courteous regard todescribe a person who bore the name “Tikiri” to whom deference wasdue on account of his position? Dr. De Costa also submitted that“Tikiri Banda” and “Tikiri Bandara” were common names in the KandyRegion and that therefore Mr. Tuan Mehroon’s observations cannot beused to implicate the First Respondent. In his statement to the Police(P14) Mr. Upaliratne referred to the man who explained the reasonsfor ousting the Time-Keepers as the Co-ordinating Secretary toColonel Anuruddha Ratwatte and known as Tikiri. Mr. Liyanage’sidentification of the First Respondent by name and designationremoves any reasonable doubt as to the identity of “Tikiri Aiya” and“Tikiri” in the matters relating to this Petition.
There is no explanation with regard to the Irrigation Departmentvehicle beside which the First Respondent was alleged to have beenstanding and issuing directions. However, with regard to theallegation that the vehicle bearing Registration No. 64-3201 wasused in the operations of 14th February, Mr. Tikiri Banda submittedaffidavits from the Proprietor of Piyasiri Welding Workshop and MotorWorks (1R2) and from the driver of the vehicle (1R3) in support of hisaverment that from 12 February 1995 to 16 February 1995 the vehicleconcerned was off the road for gear box repairs. The vehicle, as wehave seen, was used by Mr. Tikiri Banda on the 17th of February. Wasthat vehicle really off the road from 12-16 Febryary 1995? Why werethe running charts not made available? In any event, there is noevidence that the non availability of his usual vehicle immobilizedMr. Tikiri Banda on the 14th of February.
Mr. Tikiri Banda stated that he did not direct persons as alleged inparagraph P8 of Mr. Liyanage’s affidavit “forcibly or otherwise to evictthe Time-Keepers working there and forcibly [occupy] those sheds.”Mr. Tikiri Banda, in paragraph 10 of his affidavit dated 21 April 1995states that he “neither openly nor under cover was directing,anyactivities on 14.2.1995 at any time at the said Bus Stand as alleged.”
His position was that he was at Wattegama on that day attending“a special meeting with officers for the purpose of granting loanfacilities to lower income persons in the area”, and that he “was fullyengaged at this meeting from 10.00 hours to 14.00 hours on the saiddate at Wattegama." In support of this, he submitted an affidavit fromMr. R. A. R Ranasinghe (1R1).
The affidavit of Mr. Ranasinghe is vague and ambiguous and lessthan satisfactory. Who were the “officers” attending the meeting?Were they Government officers attending a meeting, notwithstandingthe fact that the 14th of February was a “Poya” day and therefore apublic holiday? Or were they officers of the Pata Dumbara JointDevelopment Foundation? What was this foundation? Was it aGovernment body? Was it a Non-Governmental Organization? Wasthere such a body at all? According to Mr. Tikiri Banda,Mr. Ranasinghe was the General Secretary of that body butaccording to Mr. Ranasinghe, its Chief Secretary. What is the Correctposition? According to both Mr. Tikiri Banda and Mr. Ranasinghe themeeting was held on the ground floor of 149 Panwila Road,Wattegama. Mr. Ranasinghe, in his affidavit states that his residencewas at the same place on the upper floor. For what was the groundfloor ordinarily used? both Mr. Ranasinghe and Mr. Tikiri Banda referto the meeting as a “special meeting’’. A special meeting of whatbody of persons? What was it that made it “special”? The presence ofMr. Tikiri Banda? The presence of the Co-ordinating Secretary to theMinister of Irrigation, Power and Energy and Deputy Minister ofDefence does seem unusual in that the meeting had nothing to dowith Irrigation, Power, Energy or Defence. It was, according toMr. Ranasinghe, concerned with loans for housing. How did Mr. TikiriBanda come to be involved in the matter of granting housing loans tolow-income earners? If this was a matter involving the Government’sprogramme of work, how could he claim, as Dr. de Costa urged onhis behalf, that, as a Co-ordinating Secretary, he was not performingthe duties and functions of a State Officer? Mr. Tikiri Banda states thathe was “fully engaged at this meeting from 10.00 hours to 14.00hours.” He does not explain what his role was at the meeting.Mr. Ranasinghe states that the meeting was held from 10.00 a.m. to 2p.m. but he does not expressly and plainly state that Mr. Tikiri Bandawas in attendance at the meeting from 10 a.m. He merely states thatthe subject matter of the meeting was initiated, and/or that themeeting was held under the guiding influence of Mr. Tikiri Bandawhose patronage was available till the end of the meeting. Learnedcounsel for Mr. Tikiri Banda did not insist that the first Respondentwas at the meeting from the beginning to the end. Indeed, hevolunteered the explanation that “sometimes people have to wait forhours and hours till important people come”. Did the meetingcommence and proceed till Mr. Tikiri Banda arrived later? If that hadbeen the case, Mr. Tikiri Banda could have left Kandy after the eventshad taken place at the Kandy Bus Stand. At some point of time afterthe ousting of the Time-Keepers, the Petitioner was threatened on the14th of February outside the Police Station by Mr. Tikiri Banda. (Seeparagraph 20 of the Petition and the statement to the Police made byMr. Upaliratne on 18th February 1995 (P. 14)). Did Mr. Tikiri Bandaleave Kandy at all on the 14th of February? Mr. Ranasinghe at leasthad official contact with Mr. Tikiri Banda, both of them, according totheir affidavits,were residents of Wattegama. Was it improbable thatMr. Ranasinghe provided Mr. Tikiri Banda with an affidavit to help himin this matter?
On the other hand, Mr. Liyanage had no connections either withthe petitioners or with the respondents. No explanation was offeredeither by the First Respondent in his affidavit nor by learned Counselas to why Mr. Liyanage, a neutral person, said what he did about theFirst Respondent.
If, as Mr. Tikiri Banda suggests, he had nothing to do with theevents of 14th February, why did he not confine himself to the mattersimplicating him? why was he concerned with providing support in hisaffidavit for the case of the new Time-Keepers? For example, whywas it necessary for him to say that he did not admit the purpose forwhich the Central Province Bus Workers Co-operative Society was
formed? Why does he deny that P2 – the copy of the contractbetween the Co-operative Society and the Ministry of Transport filedin these proceedings – was a 'true copy’? On what basis does he saythis? An Attorney-at-Law has certified it to be a true copy. HadMr. Tikiri Banda perused the original so as to be in a position todeclare the copy filed to be inaccurate, how could he deny, as hesays, “in toto" the contents of paragraph 8 of the Petition whichpertains to the matters dealt with in that contract? Was he challengingthese averments because the unlawfulness of the assumption andretention of office by the new Time-Keepers is based on anadmission of the existence and validity of P2 and the stated purposesand objects of the Society? How can he truthfully deny the contentsof paragraph 11 of the Petition, as he says, “in toto”? The Petitionerin paragraph 11 stated that “consequent upon the General Electionsat the Presidential Elections of August and November 1994 thePeoples Alliance Government assumed power and the 2ndRespondent who is a Member of Parliament from the Kandy Districtand Chief National Organizer of the Sri Lanka Freedom Party wasappointed inter alia as Minister for Irrigation and Deputy Minister ofDefence. The Central Provincial Council, however remained underthe political control of the U.N.P.”. If Mr. Tikiri Banda disputed thequestion of the political control of the Central Provincial Council, whydid he, as his Minister did, not deny that averment and admit therest? How could he as a Co-ordinating Secretary to the Minister ofIrrigation and Deputy Minister of Defence, truthfully deny the rest ofthe averments? He denies “in toto" the averments contained inparagraph 12 which narrates the events of 10 February 1995.Likewise he denies “in toto” the averments contained in paragraph13,14,15,16 and 18. Being unaware of those events is one thing; butpositively asserting that they did not happen is another matter. In notconfining himself to meeting the averments in paragraph 19 of thePetition and merely stating that he was unaware of the matters allegedin the rest of the averments, the 1st Respondent took upon himselfadditional burdens which he has not discharged and which createsserious doubts with regard to his veracity. In sum, it seems to me that,although the First Respondent did not want to be implicated in theevents of 14th February, fearing perhaps that he may be exposed
to sanctions for the infringement of the law, he did not also want togive the impression in his affidavit that he had altogether abandonedhis support for the new Time-Keepers and left them in the lurch. Hewanted to be the hero of the events of February 14th. Indeed, havingregard to all the circumstances, it seems more probable than not thatMr. Tikiri Banda played a key-role in the unlawful eviction of the Time-Keepers who were members of the Central Bus Workers' Co-operative Society and in placing other persons in substitution. Heseems to have been the mastermind who planned and directed theenterprise in question. In his attempt to avoid being implicated in theevents of 14th February he states in his affidavit: “I am known to mostof the residents in Kandy but only the affirmant of P8 has stated that Iwas seen.” Kandy is inhabited by many people and Mr. Tikiri Banda’sclaim to be known by “most” of the inhabitants may have beenextravagant and cannot reasonably have been intended to be takenliterally. However, he was sufficiently well known to enable somemembers of the public to identify him. It was not, as he claims, onlyMr. Liyanage who identified him personally but also Mr. Upaliratneand the other Petitioners. There is also the evidence of Mr. TuanMehroon pointing a finger at him. Mr.Tikiri Banda offers noexplanation in his affidavit why Mr. (Jpaliratne and the otherPetitioners implicated him. However, in the written submissions madeon his behalf, it was stated that the allegations made against the FirstRespondent “have been motivated by political envity (sic.)” Thatexplanation was not pursued by learned Counsel for the FirstRespondent during the hearing. This was understandable, forpolitical fidelity does not provide an explanation of the events inquestion.
Why was Mr. Tikiri Banda particularly and specially marked? It wasfor espousing the cause of the new Time-Keepers and singularly andconspicuously daring to implement by bold and extreme andunlawful measures, which his Counsel aptly described as an act of"thuggery”, a scheme to provide employment for certain favouredpersons. I am now concerned with the sole question of involvement.The significance of his involvement in relation to State responsibilitywill be dealt with later. What we are presently concerned with iswhether he could be implicated in the events complained of. In myopinion the evidence sufficiently entangles him and he has beenunable to extricate himself.
THE ALLEGED INVOLVEMENT OF THE SECOND RESPONDENT:The Second Respondent is the Hon. Colonel Anuruddha Ratwatte,
M.P., Minister of Irrigation, Power and Energy and Deputy Minister ofDefence*
As far as the Petition is concerned, the alleged involvement of theSecond Respondent is based upon –
the averment (Paragraph 17) that “a vehicle of the IrrigationDepartment which is under the 2nd Respondent Minister” had beenused in the operations of 14th February 1995;
that Mr. R.J. Tikiri Banda, the 1st Respondent, was the Co-ordinating Secretary to the 2nd Respondent; and
that “the involvement of the Police” (for whose work and conduct,the 2nd Respondent was responsible to the extent that he was theDeputy Minister in Charge of the subject of the Police), and the use ofvehicles belonging to persons or institutions under the eventualcontrol of the 2nd Respondent “Could not have taken place without[his] knowledge, involvement and acquiescence.”
The President and Secretary of the Co-operative Society in theiraffidavit of 14 March 1995 (P9), after referring to the ousting of theirmembers, alleged that “this illegal operation could not have takenplace without the knowledge, consent and acquiescence of the 2ndRespondent, the Hon. Minister for Irrigation and Deputy Minister ofDefence.”
Referring to a meeting on 13 March 1995 convened by theGovernor of the Central Province to discuss the matter, the presidentand Secretary of the Society and the 1st and 3rd petitioners in theiraffidavit of 27 March 1995 (P13) stated as follows:
"9. Mr. Jayaratne Bandara who throughout the said meeting actedas the spokesperson for [the new Time-Keepers] and who we havecredible grounds to believe is the Co-ordinating Secretary of the 2ndRespondent Minister stated that for 17 years there was a group ofunemployed persons for whom employment had been promised afterthe defeat of the U.N.P. at the last general elections..
The said Jayaratne Bandara further stated that they acted onthe instructions of the 2nd Respondent Minister and the 6thRespondent Member of Parliament with regard to what happened on
and 14.2.1995. He admitted that as they failed in theirobjective, namely the forcible ouster of the petitioner and thoseaffected on 10.2.1995 that they returned with a larger group on
and achieved their objective which was the ouster of thosehitherto employed as Time-Keepers and the forcible placing of theirsupporters in such employment.
We state that the Hon’ble Governor on more than oneoccasion expressly clarified from the said Jayaratne Bandara as towhether what had taken place was done on the instructions [of] the2nd Respondent Minister and the 6th Respondent Member ofParliament. The said Jayaratne Bandara expressly replied in theaffirmative and confirmed that this was the case.
The Hon. Keheliya Rambukwella stated that this issue shouldbe settled and said he would obtain employment for the said group ofusurpers if they joined the 21st Respondent Co-operative Society…
The Hon’ble Governor stated that this was perhaps the bestsolution to the problem. The Police representatives present there atinquired whether those who had been forcibly evicted and theusurpers could not work together as Time-Keepers.
We replied that we had no objections as aforesaid to theusurpers being employed provided that those who were legitimatelyemployed as Time-Keepers got their jobs back. However, the saidJayaratne Bandara emphatically stated that both groups could notwork together and stated in Sinhala that snake and mongoose couldnot work together.
Thereupon the Hon’ble Governor told the said JayaratneBandara that the approach he was adopting was incorrect.Mr. Jayaratne Bandara then stated that he had no authority to agreeto what was proposed at this meeting without asking the 2ndRespondent Minister. No date was fixed for a further meeting.”
Neither P13 nor Document A are verbatim records of the meeting;and therefore some details may have been omitted from P13 andDocument A. The matters referred to at paragraphs 9 – 15 of P13 arenot at variance with the official minutes of the meeting with theGovernor (Document A). However the matters referred to inparagraph 11 of P13 are not referred to in Document A. Nor is thereference in paragraph 15 of P13 to Mr. Jayaratne Bandara’sstatement that he required the authority of the Minister to agree to theproposal mentioned in the minutes. Paragraph 4 of Document Astates as follows:
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Learned Counsel for the Petitioners maintained that the ousting ofthe old Time-Keepers and the replacement by another group ofpersons was not fortuitous. The vacancies into which the new Time-Keepers had moved in had not occurred by chance. It was, he said,
a part of a "diabolical plan to forcibly take over the functions of Time-Keepers in the Central Province with the aid and assistance ofpowerful political elements in the present P. A. Government and withthe illegal aid and cover of Police protection to certain group.” This isthe position set out in paragraph 26 of the Petition and, strange as itmay seem, it is not an averment denied by the Second Respondentin his affidavit. Learned Counsel for the 2nd Respondent did not offerany explanation for this; nor did he explain paragraph 4 of DocumentA. Mr. Jayasinghe merely said: “We do not know who JayaratneBandara is”. This came as a disappointing response, forMr. Jayaratne Bandara’s role is mentioned in the affidavit P13 of 27March 1995, which, according to the Journal entries of this Court wasfiled on 29 March 1995. On 20 March 1995, when the application forleave to proceed was considered, learned Counsel for the Petitionersstated that “certain discussions took place on 13.3.95 in the Office ofthe Governor of the Central Province and that matters whichtranspired at that discussion further establish the complicity of the2nd and 6th Respondents in the matters complained of in thePetition.” Nothing had been done to ascertain what had taken placeat the meeting with the Governor. The minutes of the meeting with theGovernor were submitted by learned Counsel for the Petitioner duringthe argument at which Mr. Jayasinghe was present. Although therewas sufficient time to do so, no effort had been made to ascertainwho Mr. Jayaratne Bandara was. In the absence of an express denialor explanation to the contrary, the averment that Mr. JayaratneBandara was a Co-ordinating Secretary of the Minister standsuncontradicted. There is no denial that Mr. Jpyaratna Bandara didattend the Governor’s meeting, and both P13 and Document Asupport the view that Mr. Jayaratne Bandara was the spokespersonfor the new Time-Keepers. He was by no means an ordinary person.
In paragraph 5 of his affidavit, Mr. Keheliya Rambukwella, theMinister of Transport of the Central Provincial Council, said that hewas informed that the group of persons who had attacked the Time-Keepers “had the political patronage of the 2nd Respondent.” Hisinformants were the President and Secretary of the Co-operativeSociety.
Neither the Petitioners in their Petition nor the President andSecretary of the Co-operative Society in their affidavit dated 14 March1995 (P9) alleged that the Second Respondent either arranged orinstigated or actively participated in the illegal and unlawfuloperations complained of. Although in paragraph 11 of their affidavitdated 27 March 1995 (P13) the First and Third Respondents statedthat at the meeting convened by the Governor, the Governor hadbeen informed “On more than one occasion”, by Mr. JayaratneBandara that “what had taken place was done on the instructions [of]the 2nd Respondent Minister”, yet this is not borne out by the officialminutes of the meeting. (Document A). I have said that not everythingstated at the meeting was recorded in the minutes. However, even ifMr. Jayaratne Bandara had said that he acted on the instructions ofthe Second Respondent and that he could not agree to the proposedsolution without the concurrence of the Second Respondent, it wasby no means conclusive evidence of the fact that the incidents of 10and 14 February had the secret approbation of the SecondRespondent, much less that they were the outcome of hisinstructions. Mr. Jayaratne Bandara appears to have been acting forand on behalf of those who had performed the evil deeds of 10 and14 February and/or benefitted from them. He may have been a Co-ordinating Secretary to the Second Respondent, yet, there is nothingto show that he had been commanded or requested or permitted tospeak or act on behalf of the Second Respondent. In paragraph 16of his affidavit the Second Respondent states that “even if the saidperpetrators had used my name the same had been done without myknowledge, consent or concurrence and I specifically deny anyassociation with the said perpetrators of the alleged incident.” Therepeated use of the word ‘perpetrators’ in my view signifies theSecond Respondent’s condemnation of the unlawful acts in question.Had there been any misunderstanding on the part of the Third, Fourthand Fifth Respondents and other police officers, there should now beno doubt they were not expected by the Second Respondent tosupport or protect the First Respondent or the new Time-Keepers orthose who ousted the old Time-Keepers.
The Second respondent in his affidavit drew attention to the factthat Mr. Upali Weeratunge in his letter dated 12 February 1995, .addressed to the Second Respondent (P5), after stating that about
200 persons had attempted to oust them alleging that they were“Minister Anuruddha Ratwatte’s men” and that they were taking overthe functions of Time-Keepers, had gone on to say that uponinvestigation they were of the opinion that the Second Respondentdid not have any connection with and had not approved what hadtaken place. Mr. Weeratunge was writing on behalf of all the formerTime-Keepers. There may well have been a proposal to redress thegrievances of certain persons in which the Second Respondent hadan interest. He may have actively sought to bring relief to a group ofdisadvantaged persons, as Mr. Jayaratne Banda said at theGovernor’s meeting. However, there was nothing to show that theSecond Respondent was privy to the so-called “diabolical plan" orthat he participated in any way in the events of the 10th or 14th ofFebruary. The strategem may have been an outcome of the proposalto find employment for certain persons; but the devising of theexpedients and the execution of the design were matters for whichthe Second Respondent was not responsible. If the SecondRespondent intended assisting certain unemployed persons, what hewanted to accomplish was brought about unlawfully, and therefore,as far as he was concerned, ill done. I reject the suggestion that,merely because the Second Respondent may have planned toprovide employment for certain persons, the ousting of the Time-Keepers by unlawful means was an inevitable or necessaryeventuality of his design. Its execution was a completely differentmatter. In my view it has not been established, as alleged by thePetitioners, that “the involvement of the police, the 1st Respondentand the use of [official] vehicles … could not have taken placewithout the knowledge, involvement and acquiescence of the SecondRespondent Minister…” The use of official vehicles does add weightto the submission that there was State action, and the SecondRespondent may have been ultimately accountable as the Minister inCharge of the various Departments for the use of official vehicles, butit has not been established that he personally ordered or sanctionedtheir use. Nor can he be held vicariously liable for the unauthorizedacts of his officers, including those of his Co-ordinating Secretary,Mr. Tikiri Banda, although they may have pretended to have beenacting with his authority.
THE ALLEGED INVOLVEMENT OF THE PEOPLES’ ALLIANCE:
In paragraph 26 of the Petition it is alleged that the forcible takeover was a part of a “diabolical plan” to take over the functions of theTime-Keepers “with the aid and assistance of powerful politicalelements in the present PA Government.” The Central Private BusWorkers’ Co-operative Society wrote a letter (P6A) under the hands ofits President and Secretary, addressed to the President of theRepublic, stating that although those who were attempting to oustthem had claimed to be entitled to do so because they weresupporters of the Peoples' Alliance, yet they were perhaps unawareof the effort and support rendered by the members of the Society atthe past General and Presidential Elections to bring the Peoples’Alliance into power. In paragraph 7 of the minutes of the meeting withthe Governor, Mr. Upali Weeratunge, a member of, and aspokesperson for, the Co-operative Society, is reported to have saidthat he and many members of the Society supported the PA andtherefore regretted what had happened. In Mr. Upaliratne’s complaintto the Police (P14) he stated that “Tikiri”, having said to him andcertain others that they had “eaten enough during seventeen years”,addressed Sarath Weeratunge, Upali Weeratunge, Niyandigala andothers and said, “You have no problem. You are our men.You should work.” Niyandagala (No. 9), S. Weeratunge(No. 18) and Upali Weeratunge (No. 23) were ousted despite theirpolitical loyalties. (See P3. See also 3R3 – the Report of Mr. D. B.Ekanayake where Niyandagala (No. 7), Upali Weeratunge (No. 23)and S. Weeratunge (26) are listed as complainants.) Indeed, thepetitioners themselves did not state that the alleged discriminationwas against persons who were not members of the Peoples’ Alliance.What they said was that Mr. Keheliya Rambukwella was a member ofthe Board of Ministers of the Central Provincial Council which wascomprised “mainly of members of the United National Party which isthe principle party in opposition to the current Peoples’ Alliancegovernment”.
The new Time-Keepers may have been the beneficiaries of aspoils system of some sort favouring a certain group of persons.However, it has not been established that the ousting andreplacement of the Time-Keepers depended on political affiliationsand therefore the claim that Article 12(2) of the Constitution wasviolated on account of discrimination based upon political opinionmust fail.
THE ALLEGED INVOLVEMENT OF THE 7TH TO 19THRESPONDENTSI have already pointed out that the 8th, 9th and 18th Respondentswere mistakenly named as Respondents and I hold that they were notin any way involved in the events of the 10th and 14th of February1995.
The case of the Petitioners against the 7th, 10th, 11th, 12th, 13th,14th, 15th, 16th, 17th and 19th Respondents is that they and otherswhose names and addresses appear in P16, “usurped” theirfunctions as Time-Keepers. For the reasons given, I am of the viewthat each and everyone who took office as Time-Keepers at theKandy Bus Stand on and after the 14th of February 1995 were andcontinue to be in unlawful occupation of such offices and to thatextent are responsible for depriving the former Time-Keepers of theiremployment and for unlawfully obstructing the Central ProvincialCouncil, and its Ministry of Transport in particular, from dischargingits legitimate duties. In my view the alleged operations of the 10thand 14th of February were for the purpose of placing the new Time-Keepers in occupation of the positions held by members of the Co-operative Society. The new Time-Keepers were the beneficiaries ofthe unlawful operations. They are the obstacles in the way of thedischarge of the duties and functions of the duly appointed and onlylegitimate Time-Keepers.
The Petitioners have not alleged that the new Time-Keepers werepersonally involved in the acts of “thuggery”, although some of themmay well have been involved. Mr. Joseph Deva, the tenthRespondent, for instance, may have been one of them. In hisstatement to the Police on 18th February 1995 (P14) the FirstPetitioner stated that “Deva” was among those persons whoassaulted him. In the Report of Mr. D. B. Ekanayake, A.S.P. (3R3) it isstated that Mr. Sarath Bandara complained that he was forciblyexpelled by about 40 people among who was “Deva of
Deiyanawela”. (See also the notes of R.P.C. 10416 Dharmaratne of11 February 1995 in 3R2). However, Mr. Joseph Deva, when he wasproduced before the Officer-in-Charge of the Police Station on19 February 1995, denied that the complainants had been chasedaway or abused. He said: “We too work there. We work on goodterms.” (See 3R2). Mr. Joseph Deva was named by Mr. Upaliratne,the First Petitioner, in his complaint to the Police on 31 May 1995 (SeeDocument X) and is accused in M.C. Case No. 39193/95 ofassaulting Mr. Upaliratne. (See Document X2). The SeventhRespondent, Dhammika, and the Eleventh Respondent,Jayawickrama, are co-accused persons in that case, and in hisaffidavit dated 17 July 1995 Mr. Upaliratne states that they wereinvolved in ousting the former Time-Keepers. Mr. Joseph Deva hasnot filed an affidavit in response to the Petition. His statement to thePolice that the new Time-Keepers, including himself, came to occupytheir positions without force and that they were working together withthe old Time-Keepers is not supported by the evidence in this case.
Although some or even most of the new Time-Keepers may nothave assaulted and intimidated the old Time-Keepers, I am of theview that they had all concurred and combined privity with the moreactive and conspicuous participants, including officers of the State,to illegally and reprehensibly oust the old Time-Keepers and to taketheir places and continue to unlawfully functions as Time-Keepers. Ireject the suggestion that they happened to be available to fill thevacancies in fortuitous circumstances.
THE ALLEGED INVOLVEMENT OF THE POLICEThe complaint against the Police is that –
They had provided “illegal aid and cover” to the group of persons
who were responsible for the unlawful acts in question; and that
By reason of their lack of sufficient and/or timely action, they had
failed to prevent such acts.
In the circumstances, the Petitioners alleged, that the constitutionalguarantee of equal protection was denied to the former Time-Keepers.
On 10th February 1995 Mr. Sarath Weeratunge and otherscomplained to the Police that when they arrived at their customaryplaces of work, the locks had been broken and others had unlawfullyentered the premises. They reported that, on being questioned, thosein occupation of their premises had said that from that day they hadtaken over the function of Time-Keepers. In their complaint the oldTime-Keepers said that they had informed the Minister of Transport ofthe Provincial Council, Mr. Rambukwella, of this matter and that hehad in turn communicated the information to the President of theRepublic and to the Minister of Transport of Sri Lanka.Mr. Rambukwella had directed the old Time-Keepers to report thematter to the Police. And so they requested the Police to inquire intothe matter and provide them with the opportunity of discharging theirusual functions. (See P4).
In answering, inter alia, the Petitioners’ averment that the actscomplained of “occurred with the knowledge and/or under the coverof Police protection inasmuch as the Police failed to take any actionto prevent the criminal acts perpetrated against the Petitioners andtheir colleagues and/or to enable them to perform their legitimate andlawful functions even after they were apprised of the aforesaidincidents”, the Third Respondent, Mr. D. B. Ekanayake, AssistantSuperintendent of Police, in paragraph 19 of his affidavit, stated thatthe complaint of Mr. Sarath Weeratunga on 10.2.95 (P4) was“investigated” and that "R PC 10416 Dharmaratne was despatchedto the scene of the incident who dispersed unauthorised persons inoccupation of the Time-Keeper Shed and directed them to come tothe Police to have their statements recorded. Consequent to thisdirection only Joseph Deva came to the Police on 20.02.95 -statement marked 3R2, said Joseph Deva was produced before OIC,MO Branch.”
The statement of Mr. Ekanayake is not borne out by 3R2 which hefiled in support of his averments. That document contains copies ofseveral entries made on the 11th and t2th of February by ReservePolice Constable 10416 Dharmaratne. The incident of whichMr. Sarath Weeratunge had complained had taken place on the 10thof February. Mr. Weeratunga’s statement was recorded by the Policeon 10 February at 1440 hours. The statement of Mr. Ekanayake that“Dharmaratne was despatched to the scene of the incident" is untrueand known by him, if he had read the supporting evidence he hasproduced, to be untrue. According to his inquiry notes, Dharmaratne“while engaged on day patrol duty in the Central Bus Stand at 930hours on 11.2.95 inquired for the complainant of MCR 707 C 3291/186. [Mr. Sarath Weeratunge,] and met him and recorded hiscomplaint and his request to warn those who had come there “not tocome to this place hereafter and harass us.” On the following day, i.e.on the 12th of February, R. P. C. Dharmaratne records the fact that hevisited Mr. Weeratunga’s residence but that on not finding him there,left a message requesting him to come to the Police Station. There isnot a word about Dharmaratne having contacted any of the newTime-Keepers, let alone having “dispersed unauthorised persons inoccupation of the Time-Keepers Sheds,” either on the 10th or 12th. Iunreservedly reject the written submission of the 2nd, 3rd, 4th, 5thand 22nd respondents "that on receipt of information from one SarathWeeratunga – depicted in P4 on 10.2.95 at about 2.40 p.m. thePolice took prompt action dispersing (sic) the crowd and establishingpeace.” Mr. Jayasinghe, understandably, did not support or evenrefer to that submission in the course of the argument. Nor is thereany evidence produced by Mr. Ekanayake to show that any personother than Mr. Weeratunga was asked to report to the Police Station.Mr. Joseph Deva did turn up at the Police Station on 19th February1995 (and not on 20,February as stated by Mr. Ekanayake), but noevidence has been produced to show why he turned up eight daysafter the incident that took place on the 10th of February and aboutwhich a complaint had been lodged on the same day. The statementof Mr. Joseph Deva which was recorded on 19 February is prefacedwith the entry “Vide paragraph 186, the Respondent to the complaintDeva present in the station. I produce him to the O.I.C.”. Paragraph186 is the statement of Mr. Sarath Wijetunga (P4). There is noreference in that statement to Mr. Joseph Deva. On the other hand,Mr. Wijetunga had stated that he could not identify any person whohad gone into forcible occupation of their places of work. Thestatement of Mr. Ekanayake that Mr. Joseph Deva came to the PoliceStation on 20.2.95 "consequent to a direction” by R.P.C.Mr. Dharmaratne is false because Mr. Joseph Deva came to theStation on 19.02.95 and not on 20.2.95, and because he did notcome in response to any “direction” given by Mr. Dharmaratne. Hadhe come in response to such a direction, one would have expected areference to an entry in the books of the Police in which R.P.C.Dharmaratne had directed Mr. Joseph Deva to have come to thePolice Station. Instead, a misleading reference is made to an entry,namely to paragraph 186, that does not explain Mr. Deva’s presence.Why was this?
As far as the events of the 10th of February are concerned I am ofthe opinion that the police, while realizing the importance of takingappropriate action to remove those whom they frankly recognized as“unauthorized persons”, took no steps to remove the trespassers.Why were the events of the 10th of February entrusted to a mereReserve Constable without any supporting staff?
The attempt to oust the Time-Keepers on 10 February did notsucceed, despite the absence of the assistance of the Police.However, the second attempt was a complete success. According tothe Petitioner (see paragraph 15 of the Petition and paragraph 16 ofthe affidavit of Mr. Upaliratne dated 14 March 1995 ) on the 14th ofFebruary 1995 “a group of over 100 persons armed with iron rodsand poles arrived at the Kandy Bus Stand in the morning andassaulted and/or abused and/or intimidated the Petitioner and theircolleagues had prevented them from performing their legitimateduties at Bus Stands in the Kandy Town and have forcibly andunlawfully taken over and are now performing the functions of Time-Keepers from 14.2.1995 at the Kandy Bus Stand.” Mr. MohideenMeera Saibo, the Second Petitioner, was one of the victims and hemade a complaint to the police with regard to the assault committedon him. (P7A). Mr. N. P. S. S. Nissanka, the President of the CentralProvince Bus Workers’ Co-operative Society complained to the Policeof the forcible ouster, alleging that it had taken place in the presenceof and with the assistance of Police Officers, and he sought policeprotection to enable the members of the Society to resume their workon the following day. (P7B).
In his affidavit dated 14 March 1995, Mr. A. P. K. Liyanage, a textiletrader, stated as follows:
“3…at about 9 a.m. or 9.30 a.m. on 14/2/95 two motor cycles ofthe traffic branch ridden by Police Constables Nos. 16520 andR 11064 came and stopped in front of my boutique.
Around the same time on the said date a police jeep bearingnumber 32 – 4563 came and stopped in front of my shop on theopposite side of the road. There were about six (6) policemen inthat vehicle and stand around it.
I thereafter proceeded towards the Goodshed private bus haltwhich is close to my shop. At that time I also saw a yellowcoloured Pajero vehicle bearing on it the legend “IrrigationDepartment” stop near my shop. In the said vehicle I recognizeda Policeman commonly referred to as “Pol Abey” dressed incivvies. There were also about ten (10) others in the said vehiclewhom I could not recognize.
I state that when I reached the Goodshed bus halt I witnessed aperson called Sarath Bandara who is a member of the CentralProvince Bus Workers’ Co-operative Society…and who works asa “Time-Keeper” being assaulted. I could not recognize hisassailant.
I state that when I saw these incidents I returned to my shop. Ithen saw Mr. Tikiri Banda, the Co-ordinating Secretary to the Hon.Colonel Anuruddha Ratwatte, M.P., Minister of Irrigation andDeputy Minister of Defence with others alongside the said yellowcoloured Irrigation Pajero giving directions to various persons andthe operations that went on.
I state that the said Tikiri Banda was directing persons to theseveral sheds occupied by the several Time-Keepers as theiroffices. I saw the said persons who were being directed asaforesaid forcibly evict the Time-Keepers working there andforcibly occupy those sheds.
I noticed a crowd of about two hundred (200) persons involved inthis violent operation. These persons were armed with poles andiron rods concealed in newspaper. There were to my estimateabout fifteen (15) Policemen also involved in this operation.
I saw Sub-Inspector Vijitha Kumara of the Kandy Police forciblydragging Time-Keepers from their sheds.
14. I state that about a week thereafter two (2) persons said to befrom the C.I.D. made inquiries from me about what happened on14.2.95 and I told them what I have affirmed to above. The saidpersons took down some notes in their field note books whichwas not shown to me or signed by me. No formal statement wasrecorded from me. The said persons told me that an investigationteam would come from Colombo and directed me to keep myinterview with them confidential.”
Mr. M. R. Vijitha Kumara, Sub-Inspector of Police, who is the fifthRespondent, denies having been present at the place of the incidentand states that on the day in question he was “engaged in vice-detection duty between 9.30 hours and 17.00 hours.” In support ofhis alibi, he filed extracts from the Information Book (5R1). Two sets ofentries are set out in 5R1. The first entry is recorded at 9.30 hours atpage 73 of the Information Book wherein he states that he and otherofficers, dressed in “Civil” (as distinguished from official police)clothes, left the station on duty. The next entry is from page 75 and isrecorded at 17.00 hours. It gives a detailed list of activities at 11.15,11.45, 12.30, 13.30, 14.20, and 15.30 hours. There is no record ofwhat he was doing between 9.30 and 11.15 hours. Learned Counselwas unable to explain why page 74 was not produced and what theSub-Inspector and the other officers were doing. There was noquestion of being mistaken with regard to his identity, for Mr. VijithaKumara states that he “regularly came [into] contact with…Liyanage.” He suggests, however, that since he had “often warnedand reprimanded him” for obstructing the pavements, “thisdispleasure may have motivated the said Liyanage to tender P8’.Liyanage may have been happy to be able to identify Mr. VijithaKumara, but Mr. Vijitha Kumara has failed to show that Liyanage wasuttering a falsehood.
Mr. Vijitha Kumara states that although he was well known, noother person has identified him as being involved in the incident.There are various reasons why he may not have been seen by someof those who complained. For instance, the incidents took place atvarious places and Mr. Vijitha Kumara may not have been at some ofthem. Mr. Vijitha Kumara was one of a large crowd of persons andmay well have been missed in the melee. Moreover, even if he hadbeen identified, there could have been an understandable reluctanceto name him. As Mr. Upaliratne explained in paragraph 17 of hisaffidavit dated 18th May 1995: “I respectfully state that out of concernfor my safety I did not mention the presence and involvement of the5th Respondent in what transpired on 14.2.95 which I am personallyaware of and saw.” In his statement to the police (P14) Mr. Upaliratnetherefore confined himself to alleging that police officers in uniformarrived in a “Land Rover Jeep” preceded by a police bicycle and thatthey were moving about from place to place. He said he was in fearfor his life because when the assaulting took place the police didnothing to assist them.
In addition to Mr. Vijitha Kumara, Police Constables Nos. 16520and R11064 and Police Officer “Pol Abey" who arrived in an IrrigationDepartment vehicle were identified as being present at the scene ofthe incident. Police vehicle bearing Registration No. 32-4563 carryingabout half a dozen police officers dressed in civil clothes wasidentified. Persons moving from place to place directing the operationwere formally dressed and identified as police officers. In paragraph8(iii) of the affidavit of Mr. Vijitha Kumara, the Fifth Respondent, -which is reproduced word for word in paragraph 15(iii) of the affidavitof Mr. P. B. Ekanayake, the third Respondent – it is stated that“Liyanage who claims to have witnessed and known meticulousdetails including the names of the purported attackers and vehiclenumbers had not transmitted this information to any interested personor other authority prior to the preparation of P8.” P8 is Mr. Liyanage’saffidavit. If, as suggested by Mr. Vijitha Kumara in paragraph 8(i) ofhis affidavit and by Mr. Ekanayake in paragraph 15(i) of his affidavit,Mr. Liyanage was anxious to implicate Mr. Vijitha Kumara for purelypersonal reasons, one might have expected him to have volunteereda statement on an earlier occasion. He did not rush to giveinformation, for he had no personal interest in the matter. When hewas asked by two police officers from the C.I.D. about two weeksafter the incident, he related what had happened. These matters wererecorded and the two persons who had interrogated him had told himthat an investigation team would come from Colombo and he wasdirected to keep the “interview with them confidential" (see para. 14of Liyanage’s Affidavit P8). Both Mr. Vijitha Kumara and Mr. P. B.Ekanayake refer to P8 but neither of them denies the averments inparagraph 14 of Mr. Liyanage’s affidavit, according to which theinformation had been given to the police two weeks after the incident,that is on or about 28 February, whereas P8 is dated 14 March 1995.It is incorrect for the Third and Fifth Respondents to state thatMr. Liyanage’s first intimation took place when P8 was prepared.Mr. Vijitha Kumara’s alibi has not been established and there is noexplanation of the presence and role of Police Constables Nos.16520 and R11064 and Police Officer “Pol Abey" and police vehiclebearing Registration No. 32-4563. Nor is there any refutation of theallegation that police officers in official and casual garb wereidentified as moving about and/or passively lending support.
In his affidavit Mr. Ekanayake, the Third Respondent, states that“On 14.[2],95 when the alleged incident took place S.l. Amarasingheand P.C. 10649 Dissanayake were on mobile patrol and havingobserved a large crowd intervened and prevented a possible breachof the peace.” There are no affidavits from S.l. Amarasinghe or fromP.C. Dissanayake nor is there any other evidence supporting thisstatement. No. reference to the intervention of the police is made inMr. Ekanayake’s report 3R3. What he does say in that report is thatthe Time-Keepers who were legitimately performing their duties wereforcibly ousted by another group of persons. Mr. Ekanayake in hisreport attempts to explain away the fact that persons weretrespassing on the premises of the Time-Keepers, assaulting andintimidating people and indulging in unlawful behaviour by statingthat the bus stand was a public place. I think his explanation hadwhitewashing as its principal object. I have already referred toMr. Ekanayake’s attempt to cover up the unlawful activities inquestion. The problem, he suggests, appears to have been based onsome political consideration. In his opinion “the main dispute” was“prima facie civil in nature”, and he says that he “is in the process ofreferring this dispute to the relevant Mediation Board.” At the sametime he says he had recommended that the information BookExtracts should be forwarded to the Attorney-General for advice. Fivemonths after his report no progress has been made.
What action has the Police taken with regard to the complaints ofassault and trespass? Mr. Ekanayake says that he is “presentlycontinuing with the investigation” and attributes the tardiness of thepolice to the fact that sufficient evidence was not available. He saysthat only the President of the Co-operative Society and the SecondPetitioner "had made statements to the Police on their own volition.The Police had to go on a voyage of discovery to identify the othervictims including the 1st and 3rd Petitioners! He says that the victims“were reluctant to complain and failed to provide the police with thenecessary information.” In his report (3R3) Mr. Ekanayake gives thenames of 34 persons who had complained. What action was taken ontheir complaints? None. What action was taken on the complaint ofthe President of the Society who asked for police protection for all themembers (P7B)? None. What action was taken on Mohideen MeeraSaibo’s complaint (P7A)? None. What action was taken on thestatement of Mr. Upaliratne on 18 February (P14)? None. What actionwas taken on the several complaints made on the telephone to theDeputy Inspector General of Police by Mr. Keheliya Rambukwella andin his letter dated 16 February 1995 (P10A)? None. The SecondRespondent who is among other things, the Deputy Minister ofDefence states in his affidavit that he became aware of the allegedincident through a newspaper report and “directed the relevantpolice authorities to take immediate and necessary action to maintainlaw and order and investigate thereto.” What action has the Policetaken? None.
The Police function fulfils a most fundamental obligation ofGovernment to its constituency. Public safety, the maintenance ofpublic order and the preservation of peace and tranquility dependnot only on the existence of adequate laws but also on the way inwhich it is applied. In Railway Express Agency Inc. v. New York(2),Justice Jackson observed that “Nothing opens the door to arbitraryaction so effectively as to allow officials to pick and choose only a fewto whom they will apply legislation. Courts can take no bettermeasure to assure that laws will be just than to require that laws beequal in operation.” Matthews, J. observed in Yick Wo v. Hopkins<3).“Though the law itself be fair on its face and impartial in appearance,yet, if it is applied and administered by public authority with an evileye and unequal hand, so as practically to make unjust and illegaldiscriminations between persons in similar circumstances, material totheir rights, the denial of equal justice is still within the prohibition ofthe Constitution.”
By necessity the State has cloaked policemen with substantialdiscretionary power. The police may classify persons and draw linesin the application of laws, but discrimination must not be based uponimpermissible criteria or arbitrarily used to favour or burden a groupof individuals. In the matter before this Court, the lax enforcement ofthe law against those who were alleged to have violated the law, andthe failure to afford protection to those who were in need of protectionare unsupported by any neutral justification and were either totallyirrational or entirely motivated by a desire to achieve someimpermissible purpose. If I might borrow the words of Matthews, J. inYick Wo, the police have used their powers “with a mind so unequaland oppressive as to amount to a practical denial by the State of thatequal protection of the laws which is secured to the petitioners, as toall other persons, by the broad and benign provisions of “Article12(1) of the Constitution. In the circumstances, I am of the view thatArticle 12(1) of the Constitution was violated and continues to beviolated by the Police.
Faced with the inability to explain the role and presence of Sub-Inspector of Police Mr. Vijitha Kumara, the presence of PoliceConstables Nos. 16520 and R 11064, Police Officer “Pol Abey” andother police officers, whether dressed in the distinctive clothing wornby police officers or otherwise, learned Counsel for the Third, Fourthand Fifth Respondents, Mr. Jayasinghe, attempted to discredit theevidence adduced by the Petitioners in general. He submitted thatthe various complaints made were not consistent in that they referredto various number of persons who were present. The ousting of theTime-Keepers took place at several locations and therefore thenumber of persons present must necessarily have varied from thepoint of view of the person reporting aspects of the incident takingplace at the location he was. Whatever the numbers were precisely,the Third Respondent refers to the presence of “a large crowd" whowere involved in the incident.
Mr. Jayasinghe then suggested that the averments of thePetitioners and the affidavits filed in support of their contentionslacked credibility because there was a progressive exaggeration ofthe events that were supposed to have taken place as time went on.In that connection Mr. Jayasinghe said that no reference had beenmade in affidavit P9 to the use of clubs and iron rods. Mr. Jayasinghe,however, failed to explain the significance of the statement in P9 that“over a hundred armed persons had been involved.”
Mr. Jayasinghe then argued, mixing his metaphors, that whattook place was, “a minor incident,” “a storm in a tea cup”, although“now an attempt is being made to make a mountain out of a molehillby implicating the Minister and the Police”. One is hardly justified indescribing the forcible ousting and replacement of a group ofpersons who were legitimately employed in the business of assistinga Provincial Council to discharge its vital public service of ensuringan orderly transport service as trivial. The assessment of the situationby Mr. Rambukwella, in his affidavit and in his letter to the DeputyInspector-General of Police, which I have referred to earlier, seems tome to be more realistic. Nor am I able to accept learned Counsel’ssubmission that the Police had been implicated merely for thepurpose of obtaining relief from this Court. The Police wereimplicated because of the role they had played in ousting the oldTime-Keepers and in unlawfully installing and keeping in office a newgroup of people.
STATE RESPONSIBILITYDr. de Costa and Mr. Gamini Perera submitted that the acts of theFirst Respondent and the new Time-Keepers were private acts andcould not be a matter for complaint under Article 126 of theConstitution, for the Court had jurisdiction only to hear and determinea question relating to the infringement or imminent infringement of afundamental right by executive or administrative action. In support oftheir submission, learned Counsel cited the decision of this Court inPerera v. University Grants Commission(4> in which it was stated that:
“Constitutional guarantees of Fundamental Rights are directedagainst the State and its organs. Only infringement or imminentinfringement by Executive or Administrative action of anyFundamental right or Language right can form the subjectmatter of a complaint under Article 126 of the Constitution. Thewrongful act of an individual, unsupported by State authority issimply a private wrong. Only if it is sanctioned by the State or
done under the State authority does it constitute a matter forcomplaint under Article 126. Fundamental rights operate onlybetween individuals and the State.”
In Perera v. University Grants Commission, Sharvananda, J. (as hethen was) explained that:
“The expression 'Executive or Administrative action’ embracesexecutive action of the State or its agents or instrumentalitiesexercising governmental functions. It refers to exertion of Statepower in all its forms. The right to equality pervades all spheresof State action including administrative action of all kinds by allGovernment bodies. The constitutional provision thereforemeans that no agency of the State or the officers or agents bywhom its powers are exerted shall deny to any person the equalprotection of the law. Whoever by virtue of public position undera State Government denies or takes away the equal protectionof the laws violates the constitutional inhibitions, and as he actsin the name and for the State and is clothed with the State’sauthority, his act is that of the State. (Neal v. Delaware)(S).
Although the concept of the public-private divide has beenquestioned, and strong arguments have been adduced for theapplication of human rights law to acts between non-State actors,(e g. see Andrew Clapyham, Human Rights in the Private Sphere,1993 Clarendon Press, Oxford), it is not necessary for the purposesof the matter before me to go into that complex question. Had thisbeen merely a matter of determining whether the old Time-Keeperswere unlawfully ousted by the new Time-Keepers, it might have beenappropriate to consider whether Article 126 of the Constitution stoodin the way of applying the provisions of Chapter III of the Constitution.
The complaint before us is that the ousting of the old Time-Keepers, the substitution of the new Time-Keepers, and thecontinued holding of office by the new Time-Keepers, were broughtabout by the deprivation of the Constitutional right of the old Time-Keepers to the equal protection of the law, and that denial wasaccomplished with the connivance, encouragement and significant
assistance of officers of the State. In the circumstances, those whoconspired with the Government officials to deprive the old Time-Keepers of their fundamental right did so under “colour of law” andtheir conduct may be fairly attributed to the State as executive action.(See Dennis v. Sparks(6>, Tower v. Glover(7)). As Mr. Justice Brennan,writing for the Court, said in Lugar v. Edmonson Oil Co. Inc. (8) aperson charged with a deprivation of a constitutional guarantee may“fairly be said to be a State actor either because he is a State officialor because he has acted together with or has obtained significant aidfrom State officials, or because his conduct is otherwise chargeableto the State.”
In Mohammed Faize v. Attorney-General and Others<9> Fernando, J.said that ”… the act of a private individual would render him liable ifin the circumstances that act is 'Executive or Administrative’. The actof a private individual would be Executive if such act is done with theauthority of the Executive; and such authority transforms an otherwisepurely private act into an Executive or Administrative action; suchauthority may be expressed or implied from prior or concurrent actsmanifesting approval, instigation, connivance, acquiescence,participation, and the like, including inaction in circumstances wherethere is a duty to act; and from subsequent acts which manifestratification or adoption."
Dr. de Costa submitted that the First Respondent was not a Stateofficer and that his acts could not be regarded as Executive orAdministrative action. It would also follow that if he was not a StateOfficer, then the assistance he gave the new Time-Keepers would notmake them State actions. He admitted, however, that as the Co-ordinating Secretary to a Minister, the First Respondent was paid bythe Government, that he used Government vehicles, Governmenttelephones, and other facilities and performed public functions. Hewas, as he claimed, known to several people, and indeed he wasidentified as the Co-ordinating Secretary to the Minister and heappeared to the public to be exercising the authority of his office.Dr. de Costa’s contention, however, was that a Co-ordinatingSecretary’s tenure of office depended on the continuation in power ofthe political party to which he belonged; and since a change ofGovernment after an election would result in the termination of hisservices, he was not a State Officer capable of exercising Executiveor Administrative functions. I have no hesitation in rejecting thatsubmission, for the question of determining whether someoneperforms Executive or Administrative functions depends on thenature of his office including its powers, duties and functions.
I am of the view that the acts of the First Respondent are fairlyattributable to the State and therefore engaged State responsibilityfor the purposes of Articles 17 and 126 of the Constitution. He mayhave exceeded the scope of his authority. However, when a publicofficer takes acts relating to his office, those actions should beconsidered to be executive action even if they exceed the scope ofhis authority, for he acts under colour of his office. (Screws v. UnitedStates(10)).
The State is also accountable because it has not merely beenpassive and tolerated the unlawful ousting of the old Time-Keepersby private persons, yielding readily to the influence of others and byits disinclination to act, but also because it has associated itself withit through the positive action, encouragement and assistance of thepolice force and its officers. I am in agreement with learned Counselfor the Petitioner that the replacement of the Time-Keepers wasbrought about by the significant aid rendered by State officials,including the first Respondent, the want of adequate action of thepolice in relation to the events of 10th February 1995, and the activerole played by the Police on 14th February 1995 and by theirsubsequent lack of action. Admittedly some of the officers who tookpart in the operations were not in uniform. However, they wereidentified as police officers. In Griffin v. Maryland<1,) it was held thatwhen a private business hired an off duty police officer to act as asecurity guard, there was State action connected to his actions takenon behalf of the private business to the extent he appeared to thepublic to be exercising the authority of a police officer.
ORDERFor the reasons set out in my judgment, I declare that the Statehas violated Article 12(1) of the Constitution.
The First Respondent shall pay the Petitioners a sum of Rs. 15,000as costs.
The State shall pay each of the Petitioners a sum of Rs. 15,000 ascompensation.
The 7th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th and 19thRespondents are hereby ordered forthwith to –
vacate the Time-Keepers premises at the locations set out indocument P3; and
desist from performing the duties and functions of Time-Keepers at those locations or elsewhere in Kandy.
The Inspector-General of Police is directed to ensure that the 7th,10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th and 19th Respondentscomply with the orders referred to in the preceding paragraph.
The Inspector-General of Police is further directed forthwith to –
assist the persons named in document P3 to regainpossession of the premises vacated by them on 14th February1995; and
provide such persons with the protection required to enablethem to discharge their duties and functions as Time-Keepers.
The Inspector-General of Police is directed to report to this Courton or before the 20th of September 1995 on the steps he has taken tocomply with the directions issued to him in this Order.
Mr. Jayasinghe submitted that persons other than the petitionersare not entitled to any relief and he cited the decision in Somawathiev. Weerasinghe<12) in support of his view. The case of Somawathiedeals with the threshold question of the jurisdiction of the Court interms of Article 126(2) of the Constitution to entertain a petition filedby a person whose rights have not been infringed, and not thequestion of relief the Court may eventually grant in the exercise of itspowers under Article 126(4).
FERNANDO, J.-1 agree.
DHEERARATNE, J. – I agree.
Relief granted.