SENEVIRATNE, OFFICER-IN-CHARGE, POLICE STATION,KOLLUPITIYA AND OTHERS
SUPREME COURTM. D. H. FERNANDO, J.
KULATUNGA, J. ANDDHEERARATNE, J.
S.C. APPLICATION NO. 212/8824 AUGUST, 1989
Fundamental Rights – Illegal arrest – Right to freedom of speech and protectionfrom arbitrary arrest – Constitution, Articles 13(1) and (2) – Necessity to givereason for arrest to arrestee at time of arrest – Is every defamatory statementprohibited? – Right to claim return of posters.
It is obligatory to give to the person arrested the reason for his arrest at themoment of arrest or where it is, in the circumstances excused, at the firstreasonable opportunity. This is to enable the person arrested to remove anymistake, misapprehension or misunderstanding in the mind of the arrestingauthority at the earliest possible opportunity and thus regain his freedom.
A person arrested is not bound to submit and may resist arrest, if he is not dulyinformed of the reason for his arrest.
The right of a person to be informed of the reason for his arrest is now elevated toa fundamental right.
Every statement which is per se defamatory does not cease to be in the exerciseof the freedom of speech.
A true statement, made in the public interest or in the protection of a lawfulinterest, would be clearly in the exercise of freedom of speech although ex faciedefamatory. Such statements may be made by way of criticism of those holdingor seeking public office, particularly where relevant to such office.
The police are not called upon before acting to have anything like a prima faciecase for conviction. The wider discretion vested in the police is logical and it is' necessary for the performances of the functions of the police and for themaintenance of the law and order in the country. This does not mean however thatsubsequent detention except for a reasonable period to scrutinise the materialcan be excused.
Where the person arrested for pasting posters was released within a reasonableperiod and the court held he had been informed of the, reason for his arrest, therewas no/violation under Articles 13(1) and (2).
Since the petitioner was reasonably suspected of a contravention of theEmergency Regulations, the seizure and retention in Police custody of theposters, was a preventive measure lawfully taken for the preservation of publicorder. The failure to return the posters may have been a violation of his proprietaryrights, but not of his fundamental rights.
Where the statement exceeds permissible limits, the object of the statement wasnot identified, the statements are per se defamatory and the poster does not setout any facts on which the statements are justified and there was no pleadingseeking to prove that the statement was true or constituted free comment, thefundamental right of freedom of speech and expression was not infringed.
Cases referred to:
Joseph Perera v. Attorney-General S.C. Applications Nos. 107 – 109 /86 S.C.Minutes of 25.05.87.
Gunaratne v. Cyril Herat and Others – S.C. Application No. 96/87 – S.C.Minutes of 3.3.1989.
Wijesuriya v. Abeyratne and Others – S.C. Application No. 99/87 – S.C.Minutes of 3.3.1989.
Christie v. Leachinsky (1947) A.C. 573.
Muttusamy v. Kannangara 52 NLR 324,331.
Corea v. The Queen 55 NLR 457.
Gunasekera v. De Fonseka 75 NLR 246,250.
Vumbell v. Roberts (1944) 1 All E.R. 326, 329.
Schenk v. U.S. – 249 U.S. 47.52.
Malalgoda v. Attorney-General 2 FRD 283.
R. v. Commissioner of Police, ex parte Blackburn (1968) 2 QB 150.
D. 14/ Abeykoon with Nimai Punchihewa, Miss M. K. S. Marapitiya and LaiChandratilleke for petitioner.
Mervyn Samarakoon, S.S.C. with S. K. Gamlath, S.C. for respondents.
28th September, 1989.
The petitioner and one Chandradasa alias Yaparatne weredetected on the morning of 23.10.88 by a police party on mobilepatrol pasting posters near the Liberty Cinema, Kollupitiya, thecontents of which were –
A direct translation of these words into English may be as follows:-
“This is a rogue
If he wins he will sell the country
– Marxist Youth Front"
The wordcan also have other defamatory connotations such
as “thief” or "fraudulent person”. “Selling the country” has theconnotation of “betrayal of the nation”.
Mr. Abeykoon, learned Counsel for the petitioner did not seriouslycontest that the contents of the said poster are capable of suchdefamatory connotations. However, he argued that the petitioner isthe Secretary of a political group established in 1973 called theMarxist Youth Front and states that the impugned poster was put upby the front in reply to an earlier political poster "<s®
2j)6zt>W>?” and that the words "e® etwadzsi" were used in a politicalsense of deceiving the people to get votes by promising what cannotbe fulfilled and by60was meant taking massive
loans from imperialist countries, becoming dependent on them andallowing foreigners to control our country. The impugned poster wasthus a political reply to a political poster, and therefore notdefamatory.
The petitioner admits being arrested by Police officers attached tothe kollupitiya Police Station when he was getting the impugnedposters pasted by Chandradasa alias Yaparatne and beingproduced before the 1st respondent (the Officer-in-Charge of the
Police Station) along with sixty of the said posters at the KollupitiyaPolice Station where his statement was recorded. He was detained atthe Police Station overnight and released, the next day.
The petitioner complains that except being asked whether theyhad got Police permission to paste the posters to which he repliedthat such permission was not necessary, he was not informed of thereason for his arrest, that he was not produced before a Magistratenor was there a Detention Order in respect of him. He alleges that thearrest is violative of Article 13(1) and his detention is violative ofArticles 13(2) and 13(4) of the Constitution. He also alleges that hisdetention for getting the said posters pasted and the failure to returnthe posters taken from him infringe on his right to the freedom ofspeech and expression guaranteed by Article 14(1)(a) of theConstitution. He seeks declarations and damages accordingly.
The petitioner states that he was arrested at about 9.30 a.m. on23.10.88 and was released at 12.45 p.m. on 24.10.88. However, the1st respondent – who is supported by Police Constable 12153Gamini who actually effected the arrest – states that the petitioneralong with Yaparatne were arrested around 10.30 a.m. on 23.10.88and that they were released at 9.00 a.m. on 24.10.88.
The case for the 1st respondent is that this was a period of civilunrest caused by acts of terrorism by certain groups and inpursuance of subversive activities numerous posters were displayedin the city of Colombo particularly on the eve of the nomination for thePresidential Election scheduled for 19.12.88; that they carriedlegends, words or signs or visible representations which were, interalia, likely to excite or incite violence or feelings of disaffection orcommission of offences prescribed by Regulations 26, 28 and 33 ofthe Emergency Regulations; that in view of this situation he kept theKollupitiya Police area under surveillance with a view to apprehendany person found pasting posters and for this purpose a speciallyassigned police party was instructed to patrol the area. It waspursuant to these instructions that PC Gamini on mobile patrolarrested the petitioner and Yaparatne on the morning of 23.10.88 inthe exercise of powers under Regulation 18(1) of the Emergency
Regulations, that the petitioner and Yaparatne were so arrested anddetained at the Police Statio.n on a reasonable suspicion that theywere concerned in or to be committing offences under Regulations26, 28 and 33 of the Emergency Regulations; that they were kept inPolice custody in good faith pending investigations as to whetherthere was any subversive link with their acts; and that they werereleased without any delay when it was confirmed that they were notwanted in connection with any subversive activity.
In his further affidavit dated 06.06.89 the petitioner states that theyhad not violated any Emergency Regulation and alleges that theregulation mentioned by the 1st respondent is an afterthought tojustify their arrest. The learned Counsel for the petitioner submittedthat the petitioner had in fact been arrested under the old regulation28(1) of the Emergency Regulations which required the permission ofthe Police to affix posters which regulation had been declared ultravires the Public Security Ordinance in Joseph Perera v. The Attorney-General0' and hence the arrest of the petitioner is illegal.
Subsequent to the ruling of this Court, Regulation 28(1) wasreplaced by a new Regulation 28 which is as follows:-
“no person shall affix in any place visible to the public ordistribute among the public any posters, handbills or leaflets,the contents of which are prejudicial to public security, publicorder or the maintenance of supplies and services essential tothe life of the community”.
This regulation which was in force on 23.10.88 does not require thepermission of the Inspector General of Police for affixing posterswhich was a requirement under the former Regulation 28(1). If,therefore, the arrest of the petitioner was based on the saidRegulation 28(1), such arrest would be illegal.
In support of his submission, learned Counsel for the petitionercited the decision in Gunaratne v. Cyril Herat and Others(2> -Wijesuriya v. Abeyratne and Others}3' In that case, this Court foundthat the ‘B‘ report on which the petitoner Wijesuriya was producedbefore the Magistrate and the Detention Order under Regulation
19(2) of the Emergency Regulations both referred to the commissionof an offence under Regulation 28(1) which had been struck down bythis Court; that the Police had no reasonable ground for suspectingthe petitioners to be concerned in committing an offence underRegulation 68(3), which was also relied upon by the Police in filingtheir affidavit in this Court; and that the posters which had beenseized could hardly have been characterised as subversive literature.In the circumstances, the arrest and detention of the petitioners wereheld to be unlawful and in violation of Articles 13(1), 13(2), 13(4) and14(1)(a) of the Constitution.
The facts of the case before us are different. No doubt PC Gaminiwho effected the arrest admits having asked the petitioner whetherthe petitioner had the authority of the IGP for pasting posters.However, according to this officer this is not all that occurred. Hestates that his Qfficer-in-Charge the 2nd respondent had givenseveral Police officers attached to" the Kollupitiya Police includinghimself specific instructions to patrol the Kollupitiya Police area andto be on the alert for any subversive activity and to arrest any personcommitting any offence under Emergency Regulations; that whilst hewas on mobile patrol, he received a motor rola message that certainpersons were pasting posters near the Liberty Cinema; that when hevisited the scene he saw the petitioner and Yaparatne pastingposters on a wall and questioned them with regard to the posters.
It is the position of PC Gamini that he reasonably suspected thepetitioner and Yaparatne to be concerned in or to be committifigoffences under Emergency Regulations and informed them “aboutthe nature of the available charges against them".
in his affidavit, PC Gamini states that he believed in good faith thatthe petitioner and Yaparatne were committing offences underRegulations 26, 28 and 32 of the Emergency Regulations. Thereference to specific regulations appears to reflect the opinion of thePolice formed after the arrest. It does not appear to be a claim tohave informed the petitioner and Yaparatne that they had committedoffences under any particular regulation; nor is there any legalrequirement to formulate any charge at the time of arrest.
While the fact that the petitioner was questioned about the lack ofPolice permission does tend to support the contention that he wasarrested for this reason, the other established facts indicate that thereason for the arrest, made known to the petitioner, related to thenature and contents of the poster. PC Gamini had receivedinstructions to be watchful for subversive activity in contravention ofEmergency Regulations; at the Police Station the petitioner wasquestioned, primarily and at some length, about the illegality of theposter, and only incidentally about the lack, of Police permission; hisstatement has been produced marked X2. At the same time messageswere sent to other sections of the Police in order to check whether thepetitioner was wanted in connection with subversive activity.
On the basis of the established facts, it is intrinsically moreprobable that PC Gamini did convey to the petitioner his belief thatthe poster contravened the Emergency Regulations. Whilst theI.G.P.'s permission would not have converted an illegal poster into alawful one, a constable might well ask that question out of anabundance of caution, because the fact of such permission wouldinfluence, his judgment, even to the extent of refraining from arrest.
Article 13(1) of the Constitution reads;
“No person shall be arrested except according to theprocedure established by law. Any person arrested shall beinformed of the reason for his arrest".
Commenting on the corresponding provisions of Article 9(1) of theU.N. Covenant on Civil and Political Rights which prohibits thedeprivation of a person of his liberty except according to theprocedure established by law, Theodor Meron, Human Rights inInternational Law p. 138 states –
“The purpose of this provision is to require States to spell outin legislation the grounds on which an individual may bedeprived of his liberty and the procedure To be used. With thefreedom of action of the executive branch of Government thusrestricted, Rector Dlnstein observes 'not every policeman (orother state functionary) is entitled to decide at his discretion,and his own responsibility, who can be arrested, why andhow'".
The duty to give the reason for an arrest is jn-Article 9(2) of theCovenant which reads –
“Anyone who is arrested shall be informed, at the time ofarrest, of the reason for his arrest and shall be promptlyinformed of the charges against him”.
The European Convention on Human Rights Article 5(2) is asfollows:-
“Everyone who is arrested shall be informed promptly, in alanguage which he understands, of the reason for his arrest andof any charge against him".
Article 22(1) of the Indian Constitution enacts –
"No person who is arrested shall be detained in custodywithout being informed, as soon as may be, of the grounds ofsuch arrest nor shall he be denied the right to consult, and to bedefended by a legal practitioner of his choice”.
This right is not available to certain categories of persons referred toin Article 22(3).
The right of an arrested person to be informed of the ground of hisarrest was originally part of the Common Law of England. Theapplicable principles have been discussed in the much quoteddecision of the House of Lords in Christie v. Leachinsky ,(4) Extractsfrom the judgments in that case appear in several of our decisionswhich if read out of context may not help in the application of therelevant principles to the facts of the case before us. I shall thereforemake the following summary of propositions from the judgments inChristie’s case which I think would assist us –
A policeman arresting without warrant upon reasonablesuspicion must, in ordinary circumstances inform the personarrested of the true ground of arrest.
If the citizen is not so informed but is nevertheless seized, thepoliceman, apart from certain exceptions, is liable for falseimprisonment.
The requirement that he should be so informed does not meanthat technical or precise language need be used.
(Lord Chancellor Simon)
The subject is entitled to know why he is deprived of hisfreedom if only, in order that he may, without a moment's delay,take such steps as may enable him to regain it. If a man is tobe deprived of his freedom he is entitled to know the reasonwhy in order that he may know whether he is or is not bound tosubmit to the arrest.
It is not an essential condition of arrest that the constableshould at the time of arrest formulate any charge which mayultimately be found in the indictment. The arrested man isentitled to know what is the act for which he is arrested or thefacts which are said to constitute the crime on his part.
A person who is arrested should be given the reason for hisarrest at the moment of arrest, or where it is, in thecircumstances excused, at the first reasonable opportunity.
The law does not encourage the subject to resist the authorityof one whom he knows to be an officer of the law. The right toresist is always limited by the duty to submit to arrest by anofficer of the law even though the reason for the arrest is not atonce stated.
(Lord de Parcq).
It is clear from the judgments in Christie's case that subject to thereservations set out therein a person arrested is not bound to submitand may resist arrest, if he is not duly informed of the reason for hisarrest.
In Muttusamy v. Kannangara(6) Qratiaen, J. said„-
“… the law in Ceylon coincides with the English Law on thisfundamental matter affecting the right of private citizens”.
This ruling is re-affirmed in Corea v. The Queen(6)
The right of a person to be informed of the reason for his arrest is nowelevated to a fundamental right. As observed by H. N. G. Fernando,CJ in Gunasekera v. de Fonseka -(7)
“It is only if a person is informed of the ground of his arrest, or(in other words) of the offence of which he is suspected, that hewill have an opportunity to rebut the suspicion or to show thatthere is some mistake as to identity”.
Shukla – Constitution of India – Seventh Edition p. 127-128 -observes that this requirement is “meant to afford the earliestopportunity to the arrested person to remove any mistake,misapprehension or misunderstanding in the mind of the arrestingauthority…”
I am of the view that the obligation to inform a person arrested ofthe reason for his arrest under the several systems referred to above,however worded, is much the same; that rights are defined in,substantially similar terms; the obligation is to give the reason at themoment of arrest or where it is, in the circumstances excused, at thefirst reasonable opportunity. In the instant case, the obligation hasbeen complied with at the moment of arrest and at the Police Stationshortly after the petitioner was taken there.
Applying the relevant legal principles to the facts of this case, I amsatisfied that the petitioner has been informed of the reason for hisarrest as required by Article 13(1) of the Constitution and providedwith the opportunity of adducing explanations in his favour to the 1strespondent. It was indeed in consequence of the provision of thesefacilities that he was able to obtain his release expeditiously.Accordingly, the fact that the petitioner was asked whether he hadthe permission of the I.G.P. to affix posters would be irrelevant fortesting the validity of his arrest; I hold that the 1st respondent is notguilty of a contravention of Article 13(1) of the Constitution.
It is then submitted that in any event the arrest of the petitioner isillegal in that there was no reasonable ground for suspecting him tobe concerned in or to be committing an offence under EmergencyRegulations; and that~his detention in Police custody is violative ofArticle 13(2) and (4) of the Constitution.
They were arrested in the act of affixing the impugned posterswhich according to the petitioner is a reply to an earlier poster. Theearlier poster is innocuous whilst the reply is offensive and scurrilous.In his statement to the Police (X2) the petitioner states that the saidposter is in connection with the Presidential Election. Presumably, it isdirected against one of the contenders to the Office of President.Although the Police asked him to identify the person against whomthe poster is directed, the petitioner was not prepared to identify theperson beyond stating that it is in reply to an earlier poster; even inhis petition he has not identified such person. This shows that thepetitioner was acting mala fide and was not engaged in makingpolitical comments against the person concerned as claimed by him.
The petitioner’s poster, viewed in isolation months later, does notappear to be subversive. But in the circumstances then prevailing,and in the light of instructions given to him, PC Garrrini couldreasonably have suspected on 23.10.88 that the poster was part of asubversive campaign – a suspicion strengthened by reference toselling or betraying the country, and the petitioner's failure to identifythe person against whom it was directed. I am of the view that PCGamini did have reasonable grounds for suspecting that the posterwas part of a subversive campaign, prejudicial to public order, incontravention of Regulations 28 and 33.
In Joseph Perera v. The Attorney-General (supra) Wanasundera, J.considering the validity of an arrest under Regulation 18(1) of theEmergency Regulations said –
“The power of arrest does not depend on the requirementthat there must be clear and sufficient proof of the commissionof the offence alleged. On the other hand, for an arrest a merereasonable suspicion or reasonable complaint of thecommission of an offence suffices. I would, however add thatthe test is an objective one".
Wanasundera, J. quoted Scot, LJ in Dumbell v. Roberts<8) –
“The police are not called upon before acting to haveanything like a prima facie case for conviction”.
and proceeded to express the following opinion.
"This wider discretion vested in the police is logical and isnecessary for the proper performance of the functions of thepolice and for the maintenance of the law and order in thecountry.
But this does not mean that the subsequent detention(except for a reasonable period to scrutinise the material) canbe excused".
I hold that the arrest and the initial detention of the petitioner arelawful. The petitioner had been lawfully arrested and detained underRegulation 18(1) of the Emergency Regulations. Regulation 19(1)permits his production before a Magistrate “within a reasonable time,having regard to the circumstances of each case, and in any event,not later than thirty days after such arrest". His detention in Policecustody during such extended period would be lawful even if nodetention order had been obtained.'Such an order is required andmay be obtained under Regulation 19(2) only where it is sought todetain such person at a place authorised by the Inspector General ofPolice in which event he may be so detained for a period notexceeding ninety days from the date of his arrest. The petitioner wasdetained for about 24 hours – or at most 27 hours according to hisaffidavit – which was not excessive in the circumstances. Hisdetention does not constitute a punishment. On the other hand, the1st respondent has acted bona fide in making expeditious inquiryand releasing the petitioner so soon as he was satisfied that therewas no subversive link with his acts. The 1st respondent has alsoproperly exercised his discretion in not prosecuting the petitioner;and accordingly, he is not guilty of any infringement of Article 13(2) or13(4) of the Constitution.
I shall now consider the alleged infringement of the petitoner'srights under Article 14(1)(a) of the Constitution. I owe what follows, aswell as some of the conclusions, reached in this judgment, toelucidations by my brother Fernando, J. and his careful analysis ofthe facts, which I have adopted.
Since the petitioner was reasonably suspected of a contraventionof the Emergency Regulations, the seizure and retention in Policecustody of these posters was a preventive measure lawfully taken forthe preservation of public order.
When it was ascertained that the petitioner had no subversiveconnections and that the posters were not part of the prevailingsubversive campaign, the detention of the petitioner and the retentionof the posters ceased to be justifiable, for similar reasons. We havenot been referred to any general right of retention of defamatorymaterial.
Just as any further detention of the petitioner would have beenviolative of Article 13(2), the petitioner contends that the retention ofthe posters was in violation of Article 14(1)(a). The failure to return thepetitioner's property, when it ceased to be regarded as contrary tothe Emergency Regulations, may have been a violation of hisproprietary rights, but was not necessarily a violation of hisfundamental rights. It is crucial to his claim, that his rights underArticle 14(1 )(a) have been violated, to establish that the posterconstituted a legitimate exercise of his freedom of speech.
Freedom of speech, by its very nature, is not absolute. Apart fromthe restrictions authorised by Articles 15(2) and 15(7) “the law’sstringent protection of free speech would not protect a man in falselyshouting ‘fire’ in a Theatre and causing panic" (Schenk v. U.S.m perHolmes, J.). It is unnecessary to consider in this case whether“restrictions as may be prescribed by law … in relation todefamation" include Common Law restrictions. Whilst agreeing that“the freedom of publication does not include the licence to defameand vilify others” Malalgoda v. Attorney-General.m I do not think thatevery statement which is per se defamatory ceases to be in theexercise of the freedom of speech.
A true statement, made in the public interest or in the protection ofa lawful interest, would be clearly in the exercise of the freedom of -speech although ex facie defamatory. Such statements may be madeby way of criticism of those holding or seeking public office,particularly where relevant to such office. In R. v. Commissioner ofPolice, ex parte Blackburn<11) it was observed (in relation to contemptof Court) that the freedom of speech entitles every man to make faircomment; even outspoken comment, on matters of public interest,and that this right is not exceeded by reasorT of some error, or badtaste.
Here, however, the statement exceeds permissible limits. Theobject of the statement has not been identified; the statements areper se defamatory, and the poster does not set out any facts onwhich those statements are justified; it is not even pleaded, norsought to be proved, that the statement was true or constituted faircomment. No facts are set out, in the poster or even in the petition, toshow that the statements bore a different meaning to their plain anddefamatory sense. It cannot be regarded as a legitimate exercise offreedom of speech. The-1st respondent is accordingly not guilty of a■violation of the petitioner’s rights under Article 14(1 )(a) of theConstitution.
The 2nd respondent was the Assistant Superintendent of Police forthe area under whose supervision the 1st respondent functionedduring the relevant period. He is not guilty of any violation of thefundamental rights of the petitioner.
For the above reasons, I dismiss the application of the petitionerwith costs.
M. D. H. FERNANDO, J. – / agree.