BANDARA AND OTHERS
v.JAGODA ARACHCHI. OFFICER IN CHARGE. POLICE STATION.FORT AND OTHERS
SUPREME COURTS. N. SILVA, C. J.
BANDARANAYAKE. J. ANDISMAIL. J.
S. C. APPLICATION Nos. 687/97, 688/97.689/97 AND 690/97.
09th FEBRUARY. 2000.
Fundamental rights – Dispersal of persons engaged in a picketingcampaign – Freedom of expression and peaceful assembly – Articles14(lj(a) and (b) of the Constitution – Permitted restrictions – Article 15(7) -Disturbance of the public peace – Sections 95(1) and 95(2) of the Code ofCriminal Procedure Act.
Four petitioners who were University students and other Universitystudents organised a picketing campaign to protest against theeducational reforms proposed by the Government. At about noon on30.07.1997 there were over 3000 persons assembled outside the FortRailway Station. They were displaying placards against the proposededucational reforms. At that time the Police Officers were also present.When private buses halted on the road opposite the demonstrators,to pick up passengers, the public view of the placards was obstructed.The demonstrators had then run on to the road and pelted stonescausing damage to shops and injuries to Police Officers. At that stage onthe instructions given by a Superintendent of Police who was alsopresent, the Police party used tear gas batons and dispersed theprotestors.
The Police acted in terms of their powers under sections 95( 1) and 95(2)of the Code of Criminal Procedure Code Act to prevent a breach of thepeace. There was no infringement of the rights of the petitionersguaranteed by Articles 14(l)(a) and (b) of the Constitution, namely, thefreedom of expression and peaceful assembly. Those rights are notabsolute but subject inter alia, to such restrictions as may be prescribed
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by law in the interest of public order as provided by Article 15(7) of theConstitution.
Case referred to :
Bernard Soysa v. The Attorney – General (1991) 2 SRI L. R. 56.
APPLICATION for relief for infringement of fundamental rights.
D. W. Abeykoon, P. C. with W. G. Deen and Ms. Chandrika Morawaka forpetitioners.
Shavindra Fernando, S. S. C. with Harsha Fernando, S. C-. forrespondents.
Cur. adu. null.
May 16, 2000
S.N. SILVA, C. J.
These applications have been filed by four universitystudents in respect of the action taken by the Police pursuantto a picketing campaign organised by the Petitioners and otheruniversity students. They have been granted leave to proceedon the alleged infringements of their freedom of speech andexpression and the freedom of peaceful assembly, guaranteedby Article 14( 1)(a) and (b), respectively of the Constitution.
The Inter University Students Federation (IUSF) whichaccording to the Petitioners consisted of representatives of theStudents Councils of the Universities of Peradeniya, Kandy,Sri Jayawardenapura, Katubedde and Ruhuna, at a meetingheld on 23.7.97, decided to engage in a picketing campaign infront of the Fort Railway Station scheduled for 30.7.97,commencing at 1 1.00 a.m. The campaign was organised as aprotest, against the educational reforms that were proposed bythe Government. A copy of the minutes of the meeting of theIUSF reflecting the decision to organise the campaign has beenproduced marked P7. Learned President’s Counsel appearingfor the Petitioners conceded in the course of his submissionsthat the proposed educational reforms do not pertain to the
Bandara and. Others v. Jagoda Arachchi, Officer In Charge,
Police Station, Fort and Others (S.N. Silva, C*J.)
Universities and they relate only to the content of studies inschools. However, he submitted that the University studentshave a legitimate interest in the education that is imparted tothe students in schools and the basis of their admission to theUniversities. In this context we have to take note of a historictendency on the part of the University students to activateuniversally and be involved in matters that they perceive asbeing of general and public importance, without restrictingtheir endeavours to their welfare and future. Further, thefreedoms of speech and expression guaranteed by Article14(1) (a) of the Constitution are not restricted to matters ofimmediate concern to a person who avails of these freedoms.Hence, I would proceed to an examination of the mattersin issue on the premise that the decision of the IUSF to picketin front of the Fort Railway Station in order to protest againstthe proposed educational reforms was made bona fide in aprocess that involved the exercise of the freedoms of peacefulassembly, speech and expression guaranteed by Article 14(lj(b)and (a) of the Constitution.
It is common ground that pursuant to the decision of theIUSF referred to above, a large number of persons assembledoutside the Fort Railway Station at about noon on 30.7.97. ThePetitioners state that there were over 3000 persons and thePolice estimate is higher. The persons who assembled weredisplaying placards against the proposed educational reforms.
It is common ground that initially these persons assembledin front of the Fort Railway Station and they occupied thepaved area without obstructing the Olcott Mawatha being thebusy road which runs in front of the station. Subsequent tothis point there is a divergence in the versions of the Petitionersand the Police. The Petitioners claim that the Police who werepresent in fair strength got buses parked on the road in frontof the paved area where they were picketing in order to preventthe public from reading the placards that were being exhibitedby the protesters. The version of the Police is that the protesterswere gathered just by the place at which buses that come from
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the Pettah bus stand stop to pick up the passengers. That thebuses stopped in the normal course to pick up passengei-s andin that busy hour there was no endeavour on the part of thePolice to deliberately stop the buses at the regular bus halt.
Olcott Mawatha is one of the busiest roads in ColomboCentral and considering the proximity of the Central BusStand, Pettah, to the place in question, in the normal courseseveral buses would have stopped to pick up passengers nearabout the place where the protesters were assembled. ThePolice would not have had advance information as to themovements of the protesters to pre arrange with bus drivers topark their buses at this point. They certainly could not haveintervened on the spur of the moment to compel drivers to parktheir buses laden with passengers at this point merely toprevent people from reading what was written on the placards.Hence I have no difficulty in accepting the version of the Policeon this point.
The Petitioners admit that when the buses stopped infront of the paved area where they were assembled, theprotesters went onto the main road. This coincides with theversion of the Police that at a certain point the protestersinvaded the main road. This action on the part of the protesterswould invariably have caused severe congestion in the heavytraffic at this busy hour.
It is common ground that the Police action in dispersingthe protesters commenced after the they came on to the mainroad.
The Petitioners allege that at this stage the Police attackedthose who were picketing. Tear gas and a water cannon wereused and there was an attack with batons and also firing withrubber bullets. Some of the protesters including one of thePetitioners were beaten by the Police with batons. At this stagethe protesters ran in different directions.
Bandara and. Others v. Jagoda Arachchi, Officer In Charge.
Police Station, Fort and Others (S.N. Silva, C.J.)
The version of the Police is different. When the protestersinvaded the road, they were ordered to disperse. When theorder to disperse was not obeyed the water cannon was used.The Police state that the machine used for this purposewent out of order and the protesters who were infuriatedwent on a rampage by attacking the Police and also nearbybusiness premises. At that stage W. A. .Don Gamini, theSuperintendent of Police, (being the mostsenior officer present),gave instructions to the Police party to use tear gas and finallyto baton charge the protesters who were obstructing the mainroad and causing damage to nearby business establishments.It is alleged that the protesters pelted stones causing damageto vehicles and shops and caused injuries to the Police officers.In support of this assertion the 1st Respondent who had beenassigned the task of taking precautionary measures in relationto the picketing campaign has produced in evidence theaffidavits of two Police constables who were injured in theincident with Medico Legal Examination Reports as to theinjuries suffered by them. He has also produced statementsmade to the Fort Police by five persons, who complain ofdamage caused to their business establishments by theprotesters. These protesters have also filed affidavits in Courtin support of their complaints. The Petitioners endeavour toexplain the damage to the business establishments on thebasis that it was caused by the Police when they used force todisperse the protesters. This version is completely contradictedby the affidavits and statements referred to above. The personswho operate these business establishments clearly state thattheir premises were invaded and damage was caused by theprotesters.
In the circumstances 1 accept the version of the 1stRespondent and of the Superintendent of Police that theprotesters at a certain point of time became unruly and defiedthe orders of the Police to disperse and not only obstructed theroad but also, caused damage to vehicles and businessestablishments in the neighbouring area.
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In the light of the aforesaid findings of fact I would nowexamine the allegation of the Petitioners that the Policeinfringed their fundamental rights of freedom of speech,expression and peaceful assembly.
The freedom of peaceful assembly and the freedoms ofspeech and expression, related to such an assembly areliberties vital to the functioning of a democratic society andevery citizen is entitled to the exercise of these freedoms byvirtue of Article 14(1 )(a) and (b) of the Constitution. Howeverthey are not absolute freedoms and their exercise is subject torestrictions. The restrictions are implicit in the conferment ofthese freedoms in that what is guaranteed is the right of“peaceful assembly". Article 15(2), (3) and (7) provide that theexercise and operation of these freedoms may be subject tospecific restrictions prescribed by law. What is relevant to thematters at issue is that Article 15(7) provides for restrictionsto be imposed inter alia in the interest of public order.The rationale for such restrictions is common to most legalsystems.
A. V. Dicey in his famous work titled The Law of theConstitution" has traced the evolution of the “Right of PublicMeetings." He has observed that “the right of assembly isnothing more than a result of the view taken by Courts as toindividual liberty of person and individual liberty of speech."(10th Edition page 271). In explaining the limitations to theright of public meetings he has stated as follows:
‘The principle, then, that a meeting otherwise in every respectlawful and peaceable is not rendered unlawful merely bythe possible or probable misconduct of wrongdoers, who toprevent the meeting are determined to break the peace, is, itis submitted, well established, whence it follows that ingeneral an otherwise lawful public meeting cannot be forbiddenor broken up by the magistrates simply because the meetingmay probably or naturally lead to a breach of the peace on thepart of wrongdoers.
Bandara and Others v. Jagoda Arachchi, Officer In Charge,
Police Station, Fort and Others (S.N. Silva, C.J.)
To the application of this principle there exist certainlimitations or exceptions. They are grounded on the absolutenecessity for preserving the Queen’s peace.
First limitation – If there is anything unlawful in the conductof the persons convening or addressing a meeting, and theillegality is of a kind which naturally provokes opponents to abreach of the peace, the speakers at and the members of themeeting may be held to cause the breach of the peace, and themeeting itself may thus become an unlawful meeting.
Second limitation – Where a public meeting though the objectof the meeting and the conduct of the members thereof arestrictly lawful, provokes a breach of the peace, and it isimpossible to preserve or restore the peace by any other meansthan by dispersing the meeting, then magistrates, constables,and other persons in authority may call upon the meeting todisperse, and, if the meeting does not disperse, it becomes anunlawful assembly.
The limitations or restrictions which arise from the paramountnecessity for preserving the Queen's peace are, whatever theirextent, – and as to their exact extent some fair doubt exists, -in reality nothing else than restraints, which, for the sake ofpreserving the peace, are imposed upon the ordinary freedomof individuals.”
The situation in the United States is similar and is fairlydepicted in the observations of the Supreme Court in the caseof Hague, Mayor et el vs Committee for Industrial Organisation307 US 496 which reads as follows:
‘The privilege of a citizen of the United States to usestreets and parks for communication of views on nationalquestions is not absolute, but relative, and must beexercised in subordination to the general comfort andconvenience and in consonance with peace and goodorder, but it must not, in the guise of regulation, beabridged or denied.”
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The case of Bernard Zoysa us. the Attorney General1"decided by this Court also relates to an alleged infringement ofthe fundamental rights guaranteed by Article 14(l)(a) and (b)of the Constitution. The case relates to an instance wherecertain members of recognised political parties organised apicket and a "satyagraha” at the Maha Maluwa of the DaladaMaligawa in Kandy to protest against the rising cost of living,denial of democratic rights and certain other matters. TheCourt held inter alia that the impugned action of the Police indispersing those who were gathered was necessary to ensurethe maintenance of public order and was justified.
It has to be noted that the maintenance of peace and orderis the ultimate objective of all legal systems. The freedom ofpeaceful assembly, speech and expression are also designed topromote peace and order. It, inter alia, assures the freedom todissent. The process of decision making in public mattersis hereby enriched. If dissent is suppressed there is everylikelihood of it taking a devious form which may ultimatelyendanger peace and order. But, citizens who exercise this rightshould be ever mindful of the salutary limitation, that, theConstitution assures to them only the freedom of 'peacefulassembly.’ An assembly crosses the line of being peacefulwhen the general behaviour of those assembled leads to areasonable apprehension that they are likely to cause adisturbance of the public peace. From that point onwardsthose assembled cease to exercise the fundamental freedom aslaid down in Article 14( 1)(b) of the Constitution. Section 95(1)of the Code of Criminal Procedure Act No. 1 5 of 1979 empowersa police officer not below the rank of Inspector of Police tocommand such an assembly to disperse. The section alsoprovides that "it shall therefore be the duty of the members ofsuch assembly to disperse accordingly.” Section 95(2) furtherempowers the Police to use reasonable force to disperse anassembly of persons who do not comply with a command asstated above. Such action on the part of the Police would belawful and cannot constitute an infringement of the freedomguaranteed by Article 14(1)(b) of the Constitution.
Banduara and Others v. Jagoda Arachchi, Officer In Charge,
Police Station, Fort and Others (S.N. SU.ua, C.J.)
On the facts, as set out above, I hold that the Petitionersand others who assembled outside the Fort Railway Station atnoon on 30.07.1997, at the commencement of their campaignof protest, acted in the lawful exercise of their fundamentalrigh ts of peacefu 1 assembly as provided in Article 14( 1) (b) of theConstitution. That, the placards carried by them and theirprotest against the proposed educational reforms constitutean exercise of their fundamental freedom of speech andexpression. At this stage, the exercise of these freedoms, werenot infringed by the 1st Respondent or any other Police officerpresent at the scene. I further hold that the assembly ofpersons including the Petitioners ceased to be peaceful whensome of them came on to the road resulting in an obstructionof the traffic on the road. At that point the 1st Respondent actedlawfully within his powers as provided in Section 95( 1) of theCode of Criminal Procedure Code Act No. 15 of 1979, when hecommanded the assembly of persons including the Petitionersto disperse. The action thus taken to command the dispersalof the asembly and upon failure to do so, the use of force, todisperse the assembly of persons including the Petitionersis justified and do not constitute an infringement of theirfundamental rights as alleged by the Petitioners.
The applications are accordingly dismissed. I make noorder as to costs.
BANDARANAYAKE, J. – I agreeISMAIL, J.- I agree