031-SLLR-SLLR-1994-V2-ABEYRATNE-V.-GUNATILAKE-AND-OTHERS.pdf
294
Sri Lanka Law Reports
(1994] 2 Sri LR.
ABEYRATNE
v.
GUNATILAKE AND OTHERS
SUPREME COURT.
DHEERARATNE, J.
RAMANATHAN, J. ANDWIJETUNGE. J.
S.C. APPLICATION NO. 270/92.
SEPTEMBER 18 AND 24 , 1992.
Fundamental Rights – Freedom of speech – Loudspeaker permit – Constitution,Article 14(1) (a) and (b).
By denying the petitioner a permit for loudspeakers to enable him to hold a publicmeeting the petitioner's fundamental right of the freedom of speech enshrined inArticle 14{1) (a) and (b) of the Constitution is violated.
APPLICATION for relief for violation of the fundamental right of freedom ofspeech and expression,
Lalith Athulathmudali P.C- with Ranjan Gunaratne, Dr, Ranjith Fernando, MahenAmarasekera, Ranjani Morawaka, T. M. S. Nanayakkara, Gamini Peiris andJ. Fernando for petitioner.
D. P. Kumarasinghe, Deputy Solicitor-General for respondent
Cur. adv. vult.
October 26, 1992.
DHEERARATNE. J.
Petitioner H. 8. Abeyratne complained to this court that hisfundamental right of the freedom of speech was violated by the
Abeyratne v. Gunatilake and Others (Dheeraratne, J.)
295
SC
actions of the 1st respondent, Superintendent of Police Mahawa, andthe 2nd respondnet O.I.C. Police Station Polpithigama, on account oftheir failure to issue him a loudspeaker permit to hold a publicmeeting in support of the DUNF, a recognised political party of whichhe claimed to be the secretary and organizer for the KurunegalaDistrict.
l need hardly underscore the importance of the use of amplifyingmechanical devices both in advertising a public meeting and at apublic meeting itself. The guarantee of freedom of speech andexpression and freedom of peaceful assembly contained in Article^14(1) (a) and (b) of the Constitution could be rendered meaningless ifpermission for the use of amplifying mechanical devices infurtherance of free speech is unreasonably withheld. It is notdisputed that the freedoms contained in Article 14(1) (a) and (b) maybe lawfully restricted in the interests of public order.
; The petitioner applied for a permit (obviously in terms of section 80of the Police Ordinance) by letter dated 10.4.92 a copy of which wasproduced marked P1, to use loudspeakers between 1 p.m. and 8, p.m. on 9th May 1992 at the venue of the meeting and between 6th, May and 9th May 1992 on vehicles to be engaged for the purpose of' advertising the meeting. P1 was written on a letterhead of theDemocratic United National Employees' Union which union is■ apparently the industrial relations organ of the DUNF. This letter P1j was addressed to the 1st respondent through the 2nd. Since thepetitioner received no response to his application, he sent a writtenreminder P3 dated 24.4.92 under registered cover to the 1strespondent. This was followed by another written reminder P4 dated
The petitioner thereafter received letter P5 dated 6.5.92 byordinary post from the 1st respondent to say that since an applicationhad been received by him for a permit in connection with anotherpolitical meeting to be held on the same day viz., 9.5.92, thepetitioner’s request for a permit was refused as there was likely to bea breach of the peace. The petitioner states that he received thisletter on 8.5.92. Thereafter by letter P6 dated 12.5.92 the petitionermade a complaint to the Deputy Inspector-General of Police NorthWestern Province against the 1st respondent alleging abuse ofpower. The petitioner in this letter mentioned about his application P1for the loudspeaker permit and the reminders P3 and P4 sent to the1st respondent. The petitioner specifically mentioned the fact that hereceived P5 by ordinary post on 8.5.92, the day before the scheduledmeeting and that had he been informed by the 1st respondent in time
296
Sri Lanka Law Reports
[1994] 2 Sri LR.
that there were moves afoot by some other party to hold anotherpolitical meeting on the same day and in close proximity to the venueof his meeting, he would have sought permission to hold the meetingof the DUNF at some other venue in the same electorate.
The 1st respondent in his affidavit stated that the petitioner'sapplication was received at the police station Polpithigama on
and on the same day a similar application was received fromD. M. Thilakaratne, Provincial Council member North WesternProvince in connection with a meeting to be held on the same daythe petitioner had planned to hold his. A photo copy of Thilakaratne'sapplication and the envelope in which that application was said tohave arrived (in one document) was produced marked X. It wasfurther averred by the 1st respondent that he directed the 2ndrespondent to summon the petitioner and explain matters to him; thatthe petitioner had come to the police station and insisted on holdingthe meeting on 9.5.92 at the pre-arranged venue; that Thilakaratnetoo refused to change the venue or the date of his meeting; that hetelephoned the petitioner's residence which is situated almostopposite his office and left a message to the petitioner to see him butthe petitioner never responded; and that subsequently he wrote toThilakaratne letter X2 and to the petitioner letter P5 both dated 6.5.92refusing permission for loudspeaker permits. The petitioner deniesthat he was either summoned to the police station or informed in anymanner until he received P5. There was an application made byThilakaratne for a loudspeaker permit to hold a meeting on the sameday.
It does not appear to have commended to the police sense of the1st respondent to inquire from his subordinate the 2nd respondent asto which of the applications X or P1, allegedly received on the sameday, was first opened or read by the 2nd respondent, for, one cannotimagine any person performing the feat of opening or reading twoletters simultaneously. Perhaps to the mind of the 1st respondent asolution founded on such a commonsense approach sounded toosimplistic for the grave problem he was faced with.
The 2nd respondent in his affidavit sought to corroborate what wasstated by the 1st respondent. He stated “I summoned both partiesand explained matters to them and requested them to change eitherthe date or the venue of the meeting". When and how were theysummoned? Did they appear at the police station at the same time orseparately? We are starved of those details necessary for us to testthe veracity of the respondent version.
sc
Abeyratne v. Gunatilake and Others (Dheeraratne, J.)
297
On the reverse of X (Thilakaratne's application) the 2nd respondenthad made a minute purported to be dated 4.5.92, a literal translationof which reads as follows:-
S. P. MahawaFor the same day, permission has been sought for the use ofloudspeakers for a propaganda rally of the Democratic UnitedNational Employees Union (sic).
Having informed both parties regarding this matter, they wereadvised ‘to change the day of the meeting to a subsequent day.Both parties expressed their reluctance.
If two meetings of these parties are held on the same placethere is likely to be a grave breach of the peace.
Therefore I am forwarding the applications without giving myapproval.
Below this minute appears a seal of the office of theSuperintendent of Police Mahawa bearing the date 6.5.92. There isno reference in the minute as to when the petitioner met the 2ndrespondent to express his refusal to change the day of the meeting.
After the matter was argued before us by learned counsel for thepetitioner on 19,9.92 and the pith of the case was felt, a furtheraffidavit of the 2nd respondent with several additional documentswas filed on 22.9.92 before the 2nd day of hearing. We decided toaccept that affidavit and the documents. One such document was anaffidavit dated 19.9.92 from one obliging Thilakaratne to say that on
he did apply for a permit for the use of loudspeakers for ameeting which he proposed to hold on 9.5.92. This affidavit issignificantly silent on the question of his being summoned to thepolice by the 2nd respondent to persuade him to change the venueor the date of the proposed meeting. Probably had he deposed tothat fact he would have to say further when that was and whether thepetitioner too was present at the police station at the same time ornot. Thilakaratne does not appear to have been peeved over theaction of the 1st and 2nd respondents in refusing his application.Another document filed on 22.9.92 was a letter X22 from one J. M.Dhanapala dated 11.4.92 giving permission to Thilakaratne to hold ameeting on his land on 9.5.92. This was the first time that the name ofJ. M. Dhanapala transpired in the course of the proceedings. X22contains no official seal, a contemporaneous memorandum or a folio
298
Sri Lanka Law Reports
[1994]2SriL.R.
number so as to indicate that it has come from an official file. Onewonders why if Thilakaratne forwarded his application to the 1strespondent through the 2nd on 10.4.92 along with Dhanapala's letteras stated in his affidavit, why Dhanapala's letter should carry the date
Application X does mention that the proposed meeting “willbe held at the premises mentioned in the annexed letter”, but it issignificant that it makes no reference to either the name of the land orits owner. If application X had been posted on 10.4.92 as alleged onbehalf of the respondents along with Dhanapala's letter, it is strangethat Dhanapala’s letter was dated 11.4.92.
In our anxiety to ascertain whether an application was received atthe Polpithigama police station from Thilakaratne, as stated, wecalled for the original envelope in which the letter X was supposed tohave arrived. The post mark of the Polpithigama post office on theenvelope had the figures 10 and 92 representing the date and theyear respectively with absolute clarity. The Arabic figure 4representing the month between figures 10 and 92, to our naked eyeseemed shadowy, giving us the impression that it was performingsome sort of an Egyptian belly dance. We informed learned counselthat we did not wish to probe deeper into the distorted form theArabic 4 had taken, purely to avoid procrastination of theseproceedings and that we would consider that matter as a neutralfactor, proving or disproving nothing. I
I find it difficult to understand the conduct of the 1st respondent ifhis position is true, in not replying the petitioner's earnest and eagerreminders regarding his application. The 1st respondent should haveknown that the petitioner as an organizer of a public meeting hadseveral functions to perform towards its success; getting postersprinted, having them displayed, engaging vehicles for advertisingthrough loudspeakers, organizing public speakers and the like. To doall these the petitioner was no doubt anxiously waiting for the greenlight to come from the 1st respondent giving him reasonable time wellbefore the day of the meeting. Why did the 1st respondent not havethe courtesy to write to the petitioner promptly to say that there was aproblem created by a rival application? Or if the petitioner was in factsummoned to the police station and matters explained to him, whydid he not write to say that the petitioner was taking an unreasonablestand? In reply to our query on this unusual conduct on the part ofthe 1st respondent from the learned Deputy Solicitor-General, we
sc
Abeyratne v. Gunatilake and Others (Dheeraratne, J.)
299
were informed that the 1st respondent being a busy officer wouldhave forgotten to reply those letters and that he would have leastexpected this matter to end up in a court of law. I may mention herethat in deciding the existence of any fact which a court thinks likely tohave happened having regard to human conduct, it has necessarilyto take the standard of a reasonable prudent man and not that of anabsent minded professor.
Along with the petition, the petitioner submitted affidavit P10 from atrader of Polpithigama called Dassanayake to say that on 4.5.92 apolice officer from the Polpithigama police station came to his shopand having inquired whether a proposed meeting to be held by theDUNF on 9.5.92 would cause any obstruction to his business, tookdown a statement from him. He further added in that affidavit thatnothing was asked from him regarding any other political meeting.Along with the affidavit of the 1st respondent, affidavit X10 from theselfsame Dassanayake was produced. In that affidavit Dassanayakestates that the police came to inquire from him on 25.4.92 about apolitical meeting to be held on the land of D. M. Gunaratne Banda. Itmay be noted that Gunaratne Banda is the person who had given aletter of consent to the petitioner to hold the meeting on his land. InX10 Dassanayake further stated that he told the police that hethought holding such a meeting would cause inconvenience to hisbusiness. The 1st respondent filed another affidavit X11 from oneJayatillake Banda also a trader from Polpithigama. According toJayatillake Banda the 2nd respondent met him on 25.4.92 andinquired from him whether a political meeting to be held on the landbelonging to Gunaratne Banda would cause any obstruction to hisbusiness to which he answered in the affirmative. Notes of the 2ndrespondent made on 25.4.92 pasted in the MOIB was producedmarked X19. Those notes are prefaced as follows:-
1315 hours at Polpithigama. Having inspected the venue ofthe proposed propaganda meeting of the Democratic United Front(sic) to be held at Polpithigama on 9.5.92,1 came here to inquire fromthe persons in the neighbourhood about this matter.
i
Thereafter the 2nd respondent had proceeded to record thestatements of Jayatillake Banda and Dassanayake both of whomhave stated that the holding of such a meeting would causeobstruction to their businesses.
:Two significant facts emerge from what is immediately relatedabove. Firstly, if as the 1st and 2nd respondents state, two
300
Sri Lanka Law Reports
(199412 Sri LR.
applications for loudspeaker permits were received on the same dayand the problem of choosing one did not arise, it was hardlynecessary for the 1st respondent to embark on an inquiry on 25.4.92as to whether the proposed meeting of the DUNF would causeinconvenience to the neighbourhood. Secondly, no similar inquirieshave been made regarding the proposed meeting organized byThilakaratne. Both these facts demonstrate the probability ofThilakaratne’s application not being there with the police as at
25.4.92.
After the arguments were concluded, I informed the learnedDeputy Solicitor-General that we would like to look at the originalapplication made by the petitioner. This was to enable us to examineentries and other official minutes or seals which may appear on thatapplication and if they did so appear, to compare them with whatappears on the application of Thilakaratne. I have been informedthat this all important document which is the foundation of thepetitioner's complaint "cannot be traced, as the same has been lostor misplaced" according to the 1st respondent’s letter dated 4.10.92addressed to the Deputy Solicitor-General. In contrast, it strikes me toobserve, how letter X22 written by Dhanapala found its easy passageto our hands safely from Mahawa. escaping all such officialmisfortunes; it has even been spared of the burden of carrying anofficial seal of the police.
Far from respecting, securing and advancing fundamental rightsas mandated by the Constitution, it appears to me that the 1st and2nd respondents have conducted themselves in callous disregard ofthose sacred rights. Having taken the totality of the evidence comingfrom the affidavits and the documents l am inclined to the view thatthe alleged application of Thilakaratne was a red herring drawn jointlyby the 1st and 2nd respondents across the path of justice.
By denying the petitioner a permit for loudspeakers to enable himto hold a public meeting, I am of the view that the 1st and 2ndrespondents have violated the petitioner's fundamental right of thefreedom of speech enshrined in Article 14(1) (a) and (b) of theConstitution. I direct the 1st and 2nd respondents to pay thepetitioner a sum of Rs. 2500 each as compensation and a furthersum of Rs. 1000 each as costs of the case.
RAMANATHAN, J. -1 agree.
WIJETUNGA, J. -1 agree.
Relief granted.