DE SILVA AND OTHERS V. JEYARAJ FERNANDOPULLE AND OTHERS

003-SLLR-SLLR-1996-1-DE-SILVA-AND-OTHERS-V.-JEYARAJ-FERNANDOPULLE-AND-OTHERS.pdf

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DE SILVA AND OTHERSV.
JEYARAJ FERNANDOPULLE AND OTHERS.
SUPREME COURT.
FERNANDO, J.
PERERA, J. ANDWIJETUNGE, J.
S.C. APPLICATIONS
NOS. 66/95 & 67/95 (CONSOLIDATED)
SEPTEMBER 13 AND 27,1995.
Fundamental Rights – Prevention of exercise of legitimate rights by the use ofarmed thuggery and intimidation and pressure on the Law Enforcement au-thorities – Constitution, Articles 12 (1), 12 (2), and 14 (1) (c) – Parliamentary(Powers and Privileges) Act, No. 21 of 1993 ss. 3.4,7,9- Parliamentary Privi-lege- Statements made in Parliament – Statements recorded in Hansard.
The 1st to 62nd petitioners in application No. 66/95 are members of UnitedAirport Taxi Services Society Ltd., (UATSSL), the 63rd petitioner, while the 1 st to29th petitioners in application No. 67/95 are members of the Airport Taxi Serv-ices Co-operative Society Ltd., (ATSCSL) the 30th petitioner.
The two Societies had entered into agreements with the Airport and AviationServices (Sri Lanka) Ltd., the 14th Respondent to enable their members toprovide taxi services for passengers disembarking at the Colombo Interna-tional Airport, Katunayake (“Airport) for a period of six years commencing from31 January, 1991. The said agreements were valid till 31 December, 1996.
A third Society by the name of Airport Taxi Services Society Ltd., (“ATSSL) toohad entered into a similar agreement with the 14th Respondent. These thrqesocieties had 200 taxis operating at the Airport and were the only taxis sopermitted by the 14th Respondent at the time. A monthly fee of Rs. 1,000/- waspayable in respect of each vehicle. The 14th Respondent also was at libertyitself to provide similar services or through other persons or bodies. The ATSCSLwere allocated numbers from 1 to 63, the ATSSL from 64 to 115 and UATSSLfrom 116 to 200. Passengers seeking the services of a taxi were required toobtain such services from the counter of the 14th Respondent which allocatesa taxi on a duty turn commencing from number 1 to number 200 so as to ensurethat the services of all 200 taxis were fairly and equally distributed.
The 14th Respondent had made no complaint about the manner in which thepetitioner societies and their members discharged their obligations under theagreements.
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The members of UATSSL and ATSCSL were predominantly supporters of theUnited National Party (UNP) while the members of the ATSSL were predomi-nantly supporters of the People’s Alliance (PA) and actively campaigned for theparties which they supported at the General Elections and Presidential Elec-tion of 1994.
On 31 January, 1995 the 1st to 7th Respondents held a public meeting at theairport premises and with the aid of armed and marked thugs threatened andintimidated the petitioners and despite the presence of nearly 150 to 200 po-licemen who looked on passively, have from 31 January, 1995 prevented thepetitioners from entering the airport and engaging in their occupation. Severalcomplaints to the Police and other authorities have been of no avail and nowthe taxi services at the Airport are being exclusively performed by the 16thRespondent company with a membership of 400 members and having asSecretary of the Company Felidan Femandopulle the brother of the 1st Re-spondent. the petitioners claim that the 1st to 7th Respondents have broughtpressure on 8th to 13th Respondents who are high ranking Police Officers andon the 14th and 15th Respondents who are the Airport and Aviation Services(Sri Lanka) Ltd., and its Chairman respectively to achieve their objective.
The petitioners complain of infringement of their fundamental rights underArticles 12(1), 12(2) and 14(1) (g) of the Constitution by the Respondents.
The 1st Respondent who is a Deputy Minister of the PA Government whilstdenying the allegations against him, states he attended the inauguration of anew taxi.service on 01 February, 1995 on invitation as the Chief Guest. He wentto Katunayake at 9.30 a.m. and was the first of the invitees to arrive there. Withinminutes, the Transport Manager of the Airport came with the officials and theother invitees, the 2nd to 6th Respondents who are members of Parliament orProvincial Councillors from the District and the members of the new taxi servicealso arrived. The opening ceremony was peaceful and concluded at 11.00 a.m.There was no violence or threats, all 400 members of the 16th Respondentcompany are not members of the PA.
The 2nd to 6th Respondents also denied the allegations against them and atthe hearing it .was conceded that there was no evidence of their involvement.
The 7th Respondent who is the Co-ordinating Secretary to the Deputy Minister(1st Respondent) also denied the allegations against him and adopted theaverments in the affidavit of the 1st Respondent. The Colombo InternationalAirport Taxi Services (Pvt) Ltd., the 16th Respondent was incorporated on 03January, 1995 and he (7th Respondent) was its Chairman. The Companyapplied to the 14th Respondent for permission to run a taxi service at the Airportand this had been approved and numbers 200 to 600 had been allocated to the
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16th Respondent company. Permission was granted to operate the taxi servicefrom 1.00 a.m. on 01 February, 1995. A simple ceremony was organised on 31January, 1995 to inaugurate the new taxi service and he (7th Respondent)invited the 1st Respondent to attend as Chief Guest at the ceremony as well asthe 1 st to 6th Respondents. Officials of the Airport authorities and the KatunayakePolice were also informed about the ceremony. The 7th Respondent says heleft the venue at 11.15 a.m.
The 10th and 13th Respondents who were the Senior Superintendent of Policeand Chief Inspector of Police, Katunayake Police Station stated that on instruc-tions of the Deputy Inspector- General of Police Western Province- NorthernRange they attended the Airport on 31.1.95 to provide security with about 80Police Officers as 1st and 2nd Respondents and several other members ofParliament were due to attend. No information regarding anticipated violencewas received. They saw 1st and 2nd Respondents speaking to the crowd butthey did not hear any of the persons asking any taxi operator to leave the Airportpremises or threats of smashing up of vehicles. They deny that marked orarmed thugs were present or that any incidents leading to a breach of thepeace took place and they saw no mass exodus of taxi operators. No com-plaints of any such incidents were made to any officer on that occasion. Acomplaint marked P4 (A) dated 1.2.95 and several complaints correspondingto P6(1) to P6(49) were made at the Katunayake Police between 1.2.95 and10.2.95 but the allegation that no action was taken on them was denied. Stepswere taken to patrol the Airport premises but no incidents as were alleged weredetected.
The Manager of the 14th Respondent, Airport and Aviation Services (SriLanka Ltd.) also filed an affidavit denying that any public meeting was held atthe Airport on 31.1.95 or that any of the incidents alleged by the petitionerstook place. On 31.1.95 the members of the 16th Respondent produced 38vehicles for inspection and Turn Numbers 201 to 238 were issued to thesevehicles. He noticed that the 1st, 2nd, 4th and 7th Respondents werepresent on 31.1.95 and he noticed them talking to the persons there. He didnot notice any mass exodus of taxis of the three companies which hadsubsisting agreements with the 14th Respondent company nor any commo-tion or any masked or armed persons.
In reply to the 1st Respondents affidavit denying the remarks attributed to him,the petitioners filed a counter-affidavit dated 31.5.93 annoxing extracts fromthe Hansard of 7.2.95 where the 1st Respondent was involved in exchangesin Parliament over what took place on 31.01.95 at the airport.
The 1st Respondent’s responses in Parliament reflect on the accuracy andcredibility of statements in his affidavits filed in Court and he did not seek an
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opportunity to file a counter affidavit in explanation.
Held (Perera, J. dissenting):
In the absence of any counter-affidavit from the 1st Respondent, his remarksin Parliament cannot be interpreted, discounted or otherwise questioned asbeing general statements about thuggery, or general political views aboutpolitical opponents or wrong doers or otherwise. The Court must take Hansardas it is, as setting out certain facts without attempting to draw inferences fromthose facts or to come to any conclusion as to the truth or otherwise of whatthe 1st Respondent said. The 1st Respondent’s affidavit is thus contradictedby the fact that he made statements in Parliament which are quite inconsist-ent with his affidavits. Those inconsistences are so grave, that his affidavitcannot safely be acted upon. The consequence is that, as between the peti-tioner’s and the 1st Respondent’s versions it is more probable that, the 1stRespondent did (as alleged by the petitioners) instigate those present, bylabelling the members of the petitioner-societies as UNP stooges and byuttering threats intended to drive them away from the Airport.
The 1st Respondent’s statements in Parliament are not regarded as amount-ing to admissions or corroboration of the petitioners’ version, or as substan-tive evidence, but only as facts (i.e. inconsistent statements) relevant to thecredibility of his affidavit.
The petitioners’ version is in no way internally inconsistent while the 1stRespondant’s version is unreliable because it is seriously contradicted by hisown previous statements.
The infirmities in the 1st Respondent’s affidavit do not help the petitioners totilt the balance in so far as the 7th Respondent is concerned; for his affidavit isnot undermined by other inconsistent statements.
The petitioner’s claim that their members have not been able to obtain evena single duty turn after 1.2.95 is given credence by the 14th Respondent’sfailure to furnish the relevant information. The petitioners have established ona balance of probabilities that, with seven exceptions on 01.2.95 they did notreceive any hires after 9.30 a.m. on 31.1.95; and beyond reasonable doubt, thaton and after 2.2.95 they received no hires. This was because of threats ofviolence and not voluntary.
On 31.1.95 the 1st Respondent rendered himself liable, as he had insti-gated those who chased away the petitioners with threats of violence; thereaf-ter the police were guilty of inaction, in circumstances in which they were undera duty to provide reasonable protection to the petitioners; and the 14th and 15th
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Respondents, despite knowledge of what was taking place over a long periodof time, acquiesced in the treatment meted out to the petitioners. They are allresponsible for violation of the petitioner’s fundamental rights under Article12(1), 12(2) and 14(1) (g) read with Article 14 (1) (c) of the Constitution, whichviolations continue.
The statements made in Parliament can be admitted but they must be takenas they appear in Hansard without any gloss being put on them. Statements inParliament are relevant as facts and not as evidence of the truth of their con-tents. The statement firstly may be used, not as substantive evidence, but tocontradict his evidence given orally or in an affidavit, in judicial proceedings interms of section 155 (c) of the Evidence Ordinance. Secondly the statementmay be used as substantive evidence to establish the intention or motive withwhich some act was done or statement was made outside Parliament. How-ever this second principle is not being relied on in the instant case but only thefirst.
Cases referred to:
Faiz v. Attorney-General and Others S.C. 89/91 S.C. Minutes of 19.11.93.
Upaliratne v. Tikiti Banda and Others S.C. 86/95, S.C. Minutes of 5.9.93.
Church of Scientology v. Johnson Smith (1971) 3 NLR 434; (1972) 1All ER 378 QBD.
J.B. Textiles Ltd., v. Minister of Finance [1981 ] 2 Sri L.R. 238,260-1 (CA);(1981) 1 Sri L.R. 156,161,164 (S.C).
Strickland v. Mitsui Bonnici AIR 1935 PC 34, 35.
DeZoysa v. Wijeslnghe (1945) 46 NLR 433,437.
Weerasinghe v. Samarasinghe (1966) 69 NLR 262, 264.
Schmidt v. Secretary of State for Home Affairs (1968) 3 All ER 795 (QBD).
Laker Airways Ltd., v. Department of Trade, (1977) 2 All ER 182 (CA).
Dissanayake v. Kaleel [1993] 2 Sri L.R. 135.
Jayatilleke v. Kaleel [1994] 1 Sri L.R. 319.
APPLICATIONS for relief for infringement of fundamental rights.
Tilak Marapone, P.C. with D. Weerasuriya, N. Ladduwahetty, and S. Cooray forpetitioners.
R.K.W. Gccnssekera with J.C. Weliamuna for 1st to 7th Respondents.Chanaka de Silva S.C. for 8th to 15th and 17th Respondents.
Faisz Musthapha, P.C. with Dr. Jayampathy Wickramaratne and GastonJayakody for 16th Respondent.
Cur.adv.vult.
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Fernando, J.)27
November 30, 1995.
FERNANDO,J.
I am in entire agreement with the reasoning, findings and order of mybrother Wijetunga.
It is only after judgment was reserved that a question of ParliamentaryPrivilege arose, because of my brother Perera’s views as to the factualeffect of the statements made by the 1st Respondent in the course ofproceedings in Parliament on 7.2.95, and as to their legal relevance. Sincehe disagrees with us as to the 1st Respondent’s liability, it has becomenecessary to set down our views as to the conclusions set out in his draftjudgment, which I have had the advantage of seeing.
THE STATEMENT MUST BE TAKEN AS IT IS
In regard to the factual aspect, Perera, J. interprets and explains thestatements made in Parliament, as being a “fighting reply to jibes, or “apolitical speech”, or “a general statement”: this, it seems to me, is truly toquestion proceedings in Parliament, contrary to the very principle he af-firms (instead of admitting and acting on them in toto without question, aswe should). For that is what is done when it is suggested that what theMember said is not what he really meant, or that it ought not to be takenliterally, and that accordingly the balance of probability is not in favour ofthe Petitioners. That directly contravenes section 3 of the Parliament (Pow-ers and Privileges) Act (“the Privileges Act”). The law is clear: the state-ments can be admitted, but they must be taken as they appear in Hansardwithout trying to put a gloss on them.
THE EXTENT OF THE PRIVILEGE
The second issue, as to Parliamentary Privilege, is one which no oneeven mentioned, even in passing. Neitherthe 1 st Respondent nor his Coun-sel raised it in the Pleadings, in the written submissions, or in the oralargument- although the Court specifically drew the attention of Counsel tothe effect of the Hansard extracts on the reliability of the 1 st Respondent’saffidavit. And they have not sought to raise it even after judgrnent wasreserved.
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Taking Judicial Notice of the Privilege
There is no dispute that section 9 of the Privileges Act requires theCourt to take judicial notice of Parliamentary privileges, immunities andpowers. But what those privileges are must be determined according tolaw. For the reasons set out in this judgment, I am of the view that clearlythe Act does not prohibit the admission of the statements made by the 1 stRespondent in Parliament, and that seems to be the reason why therewas no objection to the admission of the Hansard extracts.
Admissibility of the Statement as a Fact
With respect, I cannot agree that any question arises in this case whetherthose statements “could be relied on as against the 1 st Respondent as anadmission or as evidence of his state of mind11. The statements aretreated by Wijetunga, J, as facts, and nothing more; neither directly norindirectly does he make any comment or criticism as to their accuracy orpropriety, or their motivation or effect, or whether they are unjust or unfair;and he does not try to explain or interpret them in any way, or to driaw anyinferences from them. He adheres to the long-established principle thatstatements in Parliament are relevant as facts; and does not use them asevidence of the truth of their contents.
This principle has been unequivocally recognised in the two precedentsmentioned in Perera, J’s draft judgment.
In Church of Scientology v Johnson-Smlth, <3> Browne, J,said:
“But the Attorney-General limited what he saidHe said that [the
Hansard] could be read simply as evidence of fact, what was in fact *said in the House, on a particular day by a particular person. But, hesaid, the use of Hansard must stop there and that counsel was not entitledto comment on what had been said in Hansard or ask the jury to draw anyinferences from it.”
Samarakoon, CJ., commented on that passage in J.B.Textiles Ltd vMinister of Finance,m
“Even in this case certain excerpts from Hansard were in fact permittedto be admitted in evidence and the Court ruled somewhat inconclusively
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Fernando, J.)29
that it could be read simply as evidence of fact, what was in fact said inthe House on a particular day by a particular person.”
He went on to say, quite categorically, and leaving no room for doubt:
“Hansards are admissible to prove the course of proceedings in theLegislature (section 57 (4) Evidence Ordinance). They are evidence ofwhat was stated by any speaker in the Legislature: Strickland v MifsudBonnici,® De Zoysa v Wijesinghe,(6) Weerasinghe v Samarasinghe, at264(7> However, even this use of statements is subject to some qualifica-tion. One such is that the statements must be accepted in tofo-withoutquestion.” (at p. 164)
In Strickland v Mifsud Bonnici,® AIR 1935 PC 34(8) the Privy Councilsaid:
“Further, as regards the reports of debates, it is clearthatthey
can only be evidence of what was stated by the speakers in theLegislative Assembly, and are not evidence of any fact contained in thespeeches.”
Samarakoon, CJ, referred to two other decisions: Schmidt v Secretaryof State for Home Affairs!® and Laker Airways Ltd v Department of Trade.®
In the former, the Home Secretary refused to extend the residenceper-mits of two alien “scientologists”, relying on a statement made in Parlia-ment by the Minister of Health setting out Government policy in regard to”scientology”. They asked for a declaration that the Home Secretary’sdecision was unlawful and void. The Minister’s statement (which includedan observation that “scientology” was socially harmful) was used to judgethe validity of the Home Secretary’s decision.
In the latter, in an action for a declaration, the Court of Appeal tookinto account an announcement made in the House by the Secretary ofState in regard to aviation policy, in holding that in nullifying the licencegiven to Laker Airways, there was an improper exercise by the Secretaryof the prerogative power.
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In the J.B. Textiles case, a business undertaking was vested by a vestingorder made in 1976; due to a prorogation, this could not be laid before theNational State Assembly within sixty days as required by law; in 1977there was a change of government; the new Minister of Finance revokedthat vesting order, and immediately made another, which was duly laidbefore the National State Assembly. The company challenged the 1977order as being mala fide. This attack was in two stages: that the 1976order was mala fide, and that the 1977 order was intended to “continue”the 1976 order, and was therefore vitiated by the same mala tides. Themala tides of the 1976 order was proved by evidence other than state-ments in the National State Assembly, but to establish that the 1977order was “linked to the 1976 order, a statement made by the PrimeMinister in the National State Assembly was relied on. Samarakoon, CJ,decided that the Hansard could be admitted to prove that link.
Further, despite the statutory Advisory Board holding that the acquistionwas unjustified, the Government did not revoke the vesting order. In thatconnection, Samarakoon, CJ, referred to another statement in Hansard,one made by the Minister of Irrigation as to the reasons for the Govern-ment’s subsequent refusal to divest the undertaking, in order to contradictthe affidavit filed in Court by the Minister of Finance, who gave differentreasons (see [1981 ] 1 Sri LR at 170). He said:
“The two reasons do not tally. I need say no more.”
A conclusion which seems applicable here with even greater force, be-cause the affidavit of the Member does not “tally” with his own statementsin Parliament.
Admissibility (a) to contradict, or (b) to prove motive, etc.
These cases illustrate two distinct principles regarding the use of astatement made in Parliament. First, it may be admitted, as evidence of afact, namely what a Member said; and this may be used, not as substan-tive evidence, but to contradict his evidence, given orally or in an affidavit,in judicial proceedings. This is in terms of section 155 (c) of the EvidenceOrdinance. Second, such a statement may even be used as substantiveevidence, to establish the intention or motive with which some act wasdone, or some statement was made, outside Parliament (as Samarakoon,
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Fernando, J.)31
CJ, used the Prime Minister’s statement to establish the link between the1977 order and the 1976 order, and thus to prove its mala tides). The twodecisions of the Court of Appeal in England fall into this category, and areof greater authority than the decision of a single Judge of the Queen’sBench Division in the Church of Scientology case.
The view has been expressed that “a complaint of an infringement of afundamental right made to this Court cannot be founded on what was saidor done by a Member of Parliament in the course of the proceedings inthe House”, and that such statements cannot “be relied on to support acause of action which arises from something done outside the House”. Irefrain from comment, because nothing of that kind is being done here.The Petitioners do not seek either to make the 1 st Respondent liable forwhat he said in Parliament on 7.2.95, or to rely on his statements tosupport their cause of action. On the contrary, they seek to make himliable for what he said and did outside Parliament, on another day, oneweek earlier. They are not being allowed to question his statements inParliament, but only to challenge his affidavit (and only his affidavit) filedin this Court. They say, how can this Court accept or act on his affidavitin the light of the admitted tact that he made statements in Parliamentwhich are gravely inconsistent with that affidavit? Thus they rely on hisstatements not to support their cause of action, but to discredit hisaffidavit.
Ordinarily I would hesitate to disagree with the considered opinion ofSamarakoon, CJ; especially a decision in a case which was argued fortwelve days in the Court of Appeal, ahd for another four in this Court. Moreso here, without the benefit of an iota of research, or a minute of submis-sions, by Counsel, upon an issue on which we ought not to have todepend on our own researches. And for that reason I have confined myobservations to the two decisions cited by Perera, J., and the precedentsreferred to therein, and refrain from comment on recent decisions of thisCourt (Dissanayake v Kaleel, (10> Jayatillake v Kaleel,(11)) relevant to theliability or penalty to which a Member may be subject in respect of pro-ceedings in Parliament notwithstanding section 3 of the Privileges Act.But in this case we do not have to consider whether Samarakoon, CJ waswrong in regard to the second of the above principles, for this case iscovered by the first principle, as the use made by Wijetunga, J, of theHansard extracts is well within that principle.
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Form and Result of Proceedings – Irrelevant to Admissibility
I have now to consider the suggestion that the J.B. Textiles case couldbe distinguished on the basis that Samarakoon, CJ, held that statementsin Parliament (really, the National State Assembly) could be admitted be-cause he was dealing with a Certiorari application, where the quashing ofan order “does not result in any liability being imposed on a Member ofParliament”. This is tied up with another suggestion, that because there isan allegation of the violation of a fundamental right, the Hansard cannot beadmitted.
It seems to me that such a distinction introduces two factors which thePrivileges Act does not recognise. The immunity conferred by that Act (orthe lack of it) does not depend on the form of the proceedings in which theissue arises: whether it is an application for Certiorari, Mandamus, or Pro-hibition, or a fundamental rights application or an action for a declaration,or damages. If the Act confers immunity, that immunity must be giveneffect to, whatever the form of the proceedings. Likewise, that immunitydoes not depend on the result of the proceedings: whether it is the grant ofCertiorari to quash, an order of Mandamus, or a declaration of nullity, ordamages. If the Act grants immunity, it must be upheld, whatever the re-sult of the proceedings.
To put it another way, if the Act does not allow a Member’s statement tobe “questioned”, it cannot be questioned, whatever the form or outcome ofthe proceedings in which it is sought to be questioned. But if it is used ina manner which does not amount to “questioning” it, then it is admissible,whatever the form or outcome of the proceedings in which it is sought to beused.
Let me illustrate that using the facts of the J.B. Textiles case. Supposethat the Minister of Finance declares (outside Parliament) when making avesting order that the undertaking is being acquired because it is beingused in a manner detrimental to the national economy; but states in Par-liament, conscious of his duty not to mislead Parliament, that it is be-cause the proprietor is politically opposed to him. Evidence of the latterstatement is clearly admissible, under the first principle set out above, tocontradict the Minister’s assertion that he acted in the interests of thenational economy, and thus to have the vesting order quashed or annulled.
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Fernando, J.)33
And it is admissible whether the issue arises in proceedings for Certiorarito quash, Mandamus to divest, a declaration of nullity, a declaration of theinfringement of fundamental rights, or for damages; and whatever their out-come. A judge cannot say, when the Hansard is sought to be marked, “Iwill allow it and act on it, if I am going to grant Certiorari (or a declaration),but not if I decide to grant Mandamus (or damages)”.
Suppose, instead, that the Minister refrains from giving any reason whenhe makes the vesting order. The J.B.Textiles case (as well as the twodecisions of the English Court of Appeal) is authority for the admission ofhis statement in Parliament, as substantive evidence, to prove one essen-tial ingredient of the complainant’s case: that the vesting order was mademala fider, regardless of the form or outcome of the proceedings. But, letme stress, that is the second principle, and our decision today does notdepend at all on that principle.
This supposed distinction, based on the imposition of “liability” and theform of the proceedings, is untenable for another reason. The grant ofCertiorari (as in the J.B. Textiles case) is today, in public law, indistinguish-able from the grant of a declaration in a fundamental rights application. Ifthe quashing of the vesting order in that case involved no imposition of”liability”, then equally the grant of a declaration here imposes no “liability”- and that is the first relief which Wijetunga, J, grants as against the 1stRespondent. Although in my view the award of compensation would havemade no difference, yet in fact we propose no order for compensation.There can therefore be no valid objection to the grant of that declaration. Itmust be remembered that the J.B. Textiles case dealt with vesting ordersmade before the 1978 Constitution; they were not subject to judicial re-view on the ground of the violation of fundamental rights. Now, however,Article 126 (3) shows that such a vesting order can be challenged by a writapplication to the Court of Appeal, in which the violation of fundamentalrights is also duly pleaded; thereupon the whole matter must be referred tothis Court. It cannot possibly be argued that in those circumstances thisCourt could grant Certiorari to quash, but not a declaration of nullity forinfringement of Article 12.
It is relevant to mention that in both Schmidt v Secretary of State forHome Affairs (supra) and Laker Airways v Department of Trade, declara-tions were sought, and the Court of Appeal did not consider that this ren-dered the statements made in Parliament inadmissible.
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As to the award of costs, it can hardly be contended that an order forpayment of the costs of the litigation is a liability in respect of the state-ments made in Parliament. There is nothing in the judgment in the
J.B.Textiles case which made the question of the admissibility of theHansard depend on the absence of an order for costs. So there can be noobjection to the award of costs in this case.
Admissibility if there is no other evidence
It is also suggested that Samarakoon, CJ, admitted the Hansard be-cause “Parliamentary intervention was a step in the procedure and an
integral part of the acquisition processIndeed there would be no
other evidence as to this stage of the acquisition process”. That is anassumption, and it is plainly contradicted by the facts of that case. Theoperative mala tides of the original vesting order made in 1976 was estab-lished by evidence other than statements in the Legislature; showing thatthere can be other evidence. Indeed, Samarakoon, CJ, admitted the Hansardonly to establish that there was a link between the the 1976 order and the1977 order, and there is no reason why that link could not have been estab-lished by proof of acts or statements outside the Legislature. The
J.B.Textiles case cannot be distinguished on that basis.
Indeed, to do that would be wrong in principle. If a statement is pro-tected by section 3 of the Privileges Act, the Court cannot deny suchprotection simply because there is no other evidence.
CONCLUSIONThe view taken by Perera, J, seems to be that “Hansard is a closedbook as far as the Courts are concerned” (see [1981] 2 Sri LR at260-1,CA). With respect, I would adopt the observations of Samarakoon, CJ,who unequivocally rejected that view:
“The Hansard is the official publication of Parliament. It is published tokeep the public informed of what takes place in Parliament. It is neithersacrosanct nor untouchable. Comment and criticism are on a differentplane which might give rise to a breach of privilege. That aspect does notarise for decision here. I am of the view that documents P9 and P11 areadmissible to prove the statements of the Minister [of Irrigation] and thePrime Minister subject to the rules limiting their use as herein before stated.”
SC De Silva and Others v. Jeyaraj Fernandoputte and Others (Perera, J.)35
In accordance with that decision, we have accepted the statements intoto. There was no objection on behalf of the 1 st Respondent, to the ad-mission of those extracts, presumably because of that decision. Thoseextracts have been used, in accordance with the law as authoritatively laiddown by this Court, only to contradict the 1 st Respondent’s affidavit.
It is for these reasons that I find myself unable to agree with Perera, J.PERERA, J.
I have had the advantage of perusing the judgment of my brother,Wijetunga J. in this case. I am in agreement with the finding that on theproved facts, the Petitioners are entitled to a declaration that their funda-mental rights under Articles 12 (1), 12 (2) and 14 (1) (c) read with 14 (1) (g)have been infringed by the 10th, 11 th, 13th and 14th Respondents and thereliefs granted to the Petitioners arising from such violations.
I am however unable to associate myself with the finding that the Peti-tioners are entitled to a declaration that the Fundamental Rights of thePetitioners under Articles 12 (1), 12 (2) and 14 (1) (c) read with 14 (1) (g)have been infringed by the 1 st Respondent and the order made against the1st Respondent for the payment of costs in a sum of Rs. 50,000/- to thePetitioner Society in Application No. 66/95 and the Petitioner Society inApplication No. 67/95 for the reasons set out hereinafter.
I might state at the very outset that in my view the Petitioners havefailed to establish on the proved facts that the 1 st Respondent has actedin violation of any of their Fundamental Rights.
In this case the 1st Respondent has filed an affidavit dated 23.05.95denying the allegations made against him by the-Petitioners. In this affida-vit, he has averred that he was invited to be the Chief Guest at the inaugu-ration of a New Taxi Service on 31.01.95 which was to be held at thepremises opposite the Air Port. Accordingly, he went to Katunayake around9.30 a.m. and was the first among the invitees to arrive there. Within ashort while, the Transport Manager of the Air Port came with some offi-cials. Then the other invitees, i.e. the 2nd to 6th Respondents who repre-sent electorates in the District and the members of the new Taxi Servicesalso arrived.
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Thereafter the Director of the 16th Respondent, welcomed the gather-ing, followed by the Transport Manager of the Air Port who addressed themon the formalities of the operation of Taxis at the Air Port and explained therequirements in regard to the standard expected of Ai r Port Taxis. The 1 stRespondent and the 2nd to the 7th Respondents spoke a few words. Theceremony was concluded by about 11.00 a.m. In his speech, the 1st Re-spondent wished the new Taxi Service all success. No statement hadbeen made by anyone that the members of the Petitioner’s Societies were
U.N.P. stooges etc.
The 1st Respondent has specifically denied that the members of thePetitioners’ Societies were asked to leave the premises within 15 minutes,and that if they failed to do so, they would have to face the consequences.The 1 st Respondent states that the ceremony was peaceful and that therewas no incident of violence or intimidation against the Petitoners whatso-ever and that he was in fact unaware the they were even present. He spe-cifically states that the averments contained in paragraph 8 of the Petitionwhich contained allegations against him are false.
The facts set out by the 1 st Respondent in his affidavit is supported bythe 7th, 10th and 13th Respondents who have filed affidavits substantiallycorroborating the facts set out by the Respondent. The 1st Respondent’sversion also finds support in the averments contained in the affidavit filedby a Director of the 16th Respondent, Nandawansa de Silva.
Thus the allegations made by the Petitioners against the 1 st Respond-ent are denied by him and his version finds support in the affidavits filed bythe 7th, 10th and 13th Respondents and by a Director of the 16th Re-spondent.
In response to this denial on the part of the 1st Respondent, the Peti-tioners have filed a counter affidavit dated 31.05.95, annexing extracts fromthe Hansard of 07.02.95 (P16) which is a record of the proceedings ofParliament on that date.
Presidents’ Counsel on behalf of the Petitioner invited this Court to re-ject the 1st Respondent’s denial and the facts as set out in this affidavithaving regard to the contents of P16, a statement made by the 1st Re-spondent in Parliament on 07.02.95. The relevant extracts from the HansardP16 have been fully reproduced in the judgment of Wijetunga, J.
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Perera, J.)
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As regards the statements attributed to the 1st Respondent in theHansard referred to (PI 6), Counsel for the 1 st Respondent has in my view,rightly submitted that such statements must be considered in the propercontext. The reference to the Katunayake incident in Parliament that dayhas been triggered off by a statement made by a Member of Parliamentbased on a newspaper report which appeared in the “Divaina”. Counselsubmitted that the contents of the said report itself have been proved to befalse. There was no reference whatsoever to the 1st Respondent in thatreport. It was counsel’s submission that the 1st Respondent in this in-stance has merely retorted or given a “fighting reply” to the jibes as iswont to happen in the floor of the House. This he contended was not aconsidered reply to an adjournment question. It is a political speech whichcannot be taken literally as an admission by the 1st Respondent or theaccuracy of what was in the newspaper or his involvements in violence onthat day. Counsel submitted that the Court should therefore not place anyreliance on the contents of P16 and invited the Court to reject the same.
In my view there is much substance in the submission of Counsel onthis matter. The Petitioners’ allegations against the 1st Respondent re-main uncorroborated. I am of the opinion that it would be highly unsafe totilt the scales in favour of the Petitioner in this case, relying upon, a gen-eral statement made by the 1st Respondent in Parliament particularly hav-ing regard to the special circumstances in which the 1st Respondent madethe statement attributed to him.
Having regard to the facts set out above, I see no compelling reason toreject the averments in the affidavit filed by the 1st Respondent denyingthe allegations against him, which denial is borne out by the affidavits ofseveral of the Respondents to this Application. I hold therefore, that thePetitioners have failed to prove that the 1 st Respondent has acted in viola-tion of any of their fundamental rights.
Be that as it may, in the instant case yet another important issue relat-ing to Parliamentary Privileges and Immunities arise in my view for deter-mination by this Court. The question whether proceedings of Parliament(marked P16) could be relied on as against the 1st Respondent as anadmission or as evidence of his state of mind or to discredit the avermentsin his affidavit filed in Court raises the wider issue of Parliamentary Privi-leges and Immunities. The Hansard (P16) was produced with the counter
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affidavit of the Petitioner and as such the Respondent had no right to filefurther pleadings in relation to it. Whether there is a specific plea or not, inview of the provisions of Section 9 of the Parliamentary (Powers and Privi-leges) Act. No. 21 of 1953 (Cap. 2831. E. C) “All Courts in Sri Lanka arerequired to take judicial notice of all privileges, immunities and powers ofthe House”.
Section 9 states as follows:
“All Privileges, Immunities, and Powers of the House shall be part of thegeneral and public law of Ceylon and it shall not be necessary to plead thesame but the same shall in all Courts in Ceylon be judicially noticed”.
Hence, whetherthe issue is pleaded or not, all Courts are bound to takejudicial notice of Parliamentary Privileges and Immunities and to considerwhetherthe reception of any evidence is in violation of any such Privilegeor Immunity.
Our law of Parliamentary Privileges and Immunities is contained in thesaid Act No. 21 of 1953. However, Sec. 7 of the Act states that in additionto the Privileges and Immunities contained in the Act, the House and theMembers “shall hold, enjoy and exercise” the Privileges and Immunitiesfor the time being held, enjoyed and exercised by the House of Commonsof the United Kingdom and the members thereof.
Section 3 of the Parliamentary (Powers and Privileges) Act lays downthe basic rule as to the freedom of speech, debate and proceedings in theHouse as follows:
“There shall be freedom of speech, debate or proceedings in the Houseand such freedom of speech, debate or proceedings shall not be liable tobe impeached or questioned in any Court or place out of the House.”
According to Erskine May the phrase “proceedings in the House” hasto be given a wide meaning to encompass not only what transpires in thecourse of debates but also to include “everything said or done by a mem-ber in the exercise of his functions as a member in a Committee of eitherHouse, as well as everything said or done in either House in the transac-tion of Parliamentary business (Parliamentary Practice: Erskine May, 21 st
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Edition page 92). Therefore the statement attributed to the 1 st Respondentmade at adjournment time when questions were being answered, comeswithin the “proceedings of the House”. The freedom of speech thus en-joyed by a member of Parliament is absolute, “subject to the rules oforder in debate, a member may state whatever he thinks fit in de-bate, however offensive it may be to the feelings, or injurious to thecharacter of individuals; and he is protected by his privilege fromany action for libel as well as from any other question or molesta-tion” (vide Erskine May – page 84).
Statutory recognition is given to this Privilege and Immunity enjoyed bya member in Section 4 of the Parliamentary (Powers and Privileges) Actas follows;
“No member shall be liable to any civil or criminal proceedings, arrest,imprisonment or damages by reason of anything which he may have saidin the House or by reason of any matter or thing which he may have broughtbefore the House by petition, bill, resolution, motion or otherwise”.
These provisions of our Act are derived from Section 9 of the Bill ofRights of 1968 of England which declared that;
“The freedom of speech and debate or proceedings in Parliament,ought not be impeached or questioned in any Court or place outsidePariiament”.
Therefore the Immunity is not restricted to civil or criminal proceedingsbut applies in relation to all proceedings in all Courts. It is clear that acomplaint of an infringement of a Fundamental Right made to this Courtcannot be founded on what was said or done by a Member of Parliamentin the course of proceedings in the House. In this case the complaint orthe cause of action does not pertain to anything said or done by the 1stRespondent in Pariiament. It stems from his alleged statements andacts at the Katunayake Air Port premises. The question to be consideredis whether the statement made by the 1st Respondent in proceedings inthe House could be relied on to support a cause of action which arisesfrom something done outside the House.
This question was considered in the case of Church of Scientology ofCalifornia v Johnson-SmithP. In that case the Defendant, a Member of
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Parliament was sued for libel in respect of what was said by him in thecourse of a television interview. The Defendant raised the plea of fair com-ment. The Plaintiff then sought to refute this plea inter alia by readingextracts from the Hansard to prove malice on the part of the Defendant,Member of Parliament. The Court invited the assistance of the Attomery-General to consider the question whether Parliamentary Privileges mightbe infringed by the reception of such evidence. Browne J, accepted thesubmission of the Attomery-General as to the scope of Parliamentary Privi-lege. He stated as follows: (at page 437)
“I accept the Attorney – General’s argument that the scope of Parlia-mentary Privilege extends beyond excluding any cause of action in re-spect of what is said or done in the House itself. And I accept his proposi-tion, which I have already tried to quote, that is that what is said or done inthe House in the course of proceedings there, cannot be examined outsideParliament for the purpose of supporting a cause of action even though thecause of action itself arises out of something done outside the House. In
my view this conclusion is supported both by principle and authority
I also accept the other basis for this privilege which the Attorney-
General suggested, which is, that a member must have a complete right offree speech in the House without any fear that his motives or intentions orreasoning will be questioned or held against him thereafter0.
Thus it is seen that the scope of Parliamentary Privilege is not limited tothe exclusion of any cause of action in respect of what was said or done inthe House itself but extended to the examination of the proceedings in theHouse for the purpose of supporting a cause of action which itself aroseout of something done outside the House. If the principle there enunciatedis applied to the facts of this case, the Petitioners cannot rely on anystatement made by the 1st Respondent (Member of Parliament) in pro-ceedings in the House to support their complaint of an infringement of aFundamental Right committed by him elsewhere. The Petitioners wouldbe committing a breach of privilege when they seek to rely on such evi-dence and I am of the view that this Court should not countenance such atransgression..
The proceedings of Parliament as contained in the Hansard can beused for limited purposes in judicial proceedings. Such use of extractsfrom a Hansard can never be violative of the freedom of speech enjoyed bya Member of the Parliament which is protected by privilege.
SC De Silva and Others v. Jeyaraj Femandopulte and Others (Perera, J.)
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In J.B Textile Industries Ltd. v Minister of Finance and Planning<4) thisCourt held that the Court of Appeal erred in coming to a finding that theHansard containing statements made in Parliament could not be used bythe Petitioners in support of their case as to mala tides. It has to be bornein mind that this case was for an application for a Writ of Certiorari toquash a vesting order made by the Minister of Finance under the BusinessUndertakings (Acquisition) Act No. 35 of 1971. The conclusion ofRanasinghe, J. (as he then was) in the Court of Appeal (1981) 2 Sri.L.R. (p.238) was that a statement in the Hansard cannot be used for any otherpurpose besides the use of it to interpret statutes. Samarakoon, CJ. heldthat this view was erroneous and that Hansards are admissible to provethe course of proceedings in the legislature (Sec. 57 (4) Evidence Ordi-nance) subject to some qualifications, one being that the “statements mustbe accepted in toto- without question” (page 164 ). It is clear from hisjudgment that this could be done only without impinging on the privilegesand immunities of a Member of Parliament. He has specifically cited withapproval the dictum of Browne, J. in the Church of Scientology Case (supra).At page 166 he states as follows:
“Ranasinghe J. has referred to three cases. The first is the case ofChurch of Scientology vJohnson-Smitti3). The defence was one of quali-fied privilege. To defeat this plea the Plaintiff sought to establish expressmalice by reference to Hansard to prove what the Defendant had done andsaid in Parliament. This attempt was disallowed on the rule that “what issaid and done in the House in the course of proceedings there, cannot beexamined outside Parliament for the purpose of supporting a cause ofaction even though the cause of action itself arises out of something doneoutside the House” per Browne, J. There is no doubt that the use of thepassage in Hansard would have made the Defendant liable in dam-ages which he would have otherwise avoided. Such use would havebeen a fetter on the freedom of speech in Parliament besides clinching theclaims for damages by what he said or did in the House as a Member ofParliament”.
It is quite clear that Samarakoon, CJ. adhered to the view that pas-sages in Hansard cannot be used so as to impose thereby any liability ona Member of Parliament “which he would have otherwise avoided”. Suchuse would have been a fetter on the freedom of speech in Parliament”.Samarakoon, CJ. appears to have been strongly influenced by the legalbackground of the acquisition proceedings, to arrive at his conclusion inthat case. At page 161 he stated as follows.
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“I will first refer to the legal background and then set out the passages inHansard (P9) relied on and then deal with the use sought to be made of it.The Business Undertakings (Acquisition) Act is one of the most drasticpieces of legislation that was ever placed in our statute book. It provides forthe compulsory acquisition by the Government of any business undertak-ing together with the property necessary for the undertaking by the merepublication in the Gazette of a Primary Vesting Order. The law does notprovide any guidelines as to when an acquisition should be permissible,such as the need for a public purpose or even as a sanction for unlawfulconduct of the owners. No reason whatsoever need be assigned for anacquisition. When this law was debated in Parliament, the spokesman forthe then Government stated that there would be two safeguards againstthe misuse or abuse of this law. They are first, that Cabinet approval mustbe given for an acquisition and second that the law has cast a mandatoryduty on the Minister of Finance to have the Primary Vesting Order laidbefore Parliament for its approval within a specified period of time thusproviding the opportunity for a full debate on the proposed acquisition. Fromthis it would be seen that Parliamentary intervention is a step in the proce-dure for acquisition and is an integral part of the acquisition process”.
It was because Parliamentary intervention was a step in the procedureand an integral part of the acquisition process that he held that statementsin Parliament could be admitted and acted upon in toto without question.Indeed there would be no other evidence as to this stage of the acquisitionprocess. Furthermore, an application for a Writ of Certiorari does not resultin any liability being imposed on a Member of Parliament. The Writ ofCertiorari is only an instrument of judicial review of administrative actionand if issued it only results in the impugned administrative/ministerial actbeing quashed. On the other hand if a statement made by a Member ofParliament, in Parliamentary proceedings is used to support a finding thatsuch Member committed an infringement of the Fundamental Right of aperson outside Parliament, that would amount to a violation of the unfet-tered (except by rules of order in debate) freedom of speech enjoyed by aMember of Parliament and may amount to a breach of privilege which is amatter exclusively within the jurisdiction of the Parliament itself.
In point of fact I have failed in my endeavours to discover a single de-cided case in which a liability has been imposed on a Member of Parlia-ment.
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Perera, J.)
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I therefore hold that on the proved facts the Petitioners in both appli-cations have failed to establish that their rights under Article 12 (1), 12
and Article 14 (1) (c) read with Article 14 (1) (g) have been violatedby the 1st Respondent in the instant case. The reliefs prayed for bythe Petitioners in both Applications against the 1st Respondent areaccordingly dismissed with costs.
After I prepared the judgment in draft, I have had the benefit of see-ing the judgment in draft of my brother Fernando, J. which has beenwritten upon a perusal of my draft judgment. Since, certain words inmy judgment have been reproduced in isolation by Fernando, J. andmade the subject of specific comment, I have thought it fit to brieflyelucidate some matters relevant to the foregoing reasoning.
I do not agree with the statement of Fernando, J. that the questionof Parliamentary privilege does not arise for consideration in this casesince it was neither pleaded by the 1st Respondent in his pleadingsnor urged by his Counsel in submissuons.
Learned Counsel for the 1st Respondent urged on a factual basisthat no reliance be placed on the statements alleged to have beerf-made by the 1st Respondent in Parliament. The matters urged bylearned Counsel as to the factual basis have been dealt with by me inmy judgment. I have made the comments reproduced by Fernando, J.as an assessment of the circumstances in which the statements at-tributed to the 1st Respondent were made in Parliament. By doing so,
I have not ventured to “question proceedings in Parliament” as statedby Fernando, J. The prohibition as to questioning of proceedings inParliament, outside the House, is based on the fundamental premiseof the freedom of speech enjoyed by every Member of Parliament whichis protected by absolute privilege and immunity.
My comments do not in any way detract from the freedom of speechenjoyed by the 1 st Respondent as a Member of Parliament in relationto proceedings of Parliament. On the contrary, they are in support ofthe freedom of speech and the absolute privilege enjoyed by a Memberof Parliament. Therefore my comments cannot contravene the prohibi-tion against questioning of proceedings in Parliament.
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Section 9 of the Parliamentary (Powers and Privileges) Act specifi-cally requires “all Courts” to take judicial notice of all privileges andimmunities of the House. Therefore the “question” of ParliamentaryPrivilege arises by operation of Law when a liability is sought to beimposed on a Member of Parliament which may be an infringement ofthe freedom of speech enjoyed by such a member of Parliament. It isin this context that I have set down in this judgment the basis and theextent of the freedom of speech and the corresponding absolute privi-lege and immunity enjoyed by a Member of Parliament.
Further I cannot agree with Fernando, J. that “the statements (in theHansard) are treated by Wijetunga, J. as facts and no more”. Indeed,they are “facts”. Under the Evidence Ordinance anything capable ofbeing perceived by the senses and a mental condition of which a per-son is conscious is a “fact” (section 3). But it has to be borne in mindthat these facts are used as evidence by the Petitioners. The eviden-tial purpose as noted by Fernando, J. is to “discredit” the “affidavit” ofthe 1st Respondent. In the language of the Evidence Ordinance (sec-tion 155 (c) the Petitioners are seeking to “impeach” the credit of the1st Respondent by relying on the statements in Parliament said to beinconsistent with the affidavit filed by him in Court. The freedom ofspeech guaranteed to every Member of Parliament in proceedings ofParliament, would be illusory and devoid of content if a Member’s creditis to be impeached in subsequent judicial proceedings on the basis ofwhat was said by him in the House. The law as to freedom of speechand the corresponding absolute privilege and immunity would be on afragile basis if it’s content is that a Member may state what he thinksfit in Parliament but face the consequence of what he has stated insubsequent judicial proceedings instituted against him. If such an in-terpretation is given the freedom of speech guaranteed by the Bill ofRights of 1688 in England and sections 3 and 4 of our Act would itselfbe in jeopardy and become qualified.
In my view statements in Hansards may be used as evidence inlegal proceedings, as permitted by law, subject to the specific limita-tion that the freedom of speech guaranteed to a Member of Parliamentis not thereby violated. In this instance when the Petitioners seek touse the Hansard to contradict the 1st Respondent and to impeach hiscredit they are infringing the absolute privilege and the immunity en-joyed by the 1st Respondent which is a corollary of his freedom ofspeech in Parliament. Therefore, “the use made of the Hansard”, by
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the Petitioners cannot be “perfectly proper” as stated by Fernando, J.However it has to be noted that further down in the judgment Fernando,J. has stated that “it is unnecessary to decide in this case whether astatement made in Parliament can be used to establish the violation ofa fundamental right”. He has also stated “that the issue involves intri-cate questions of law which can be determined only after a full argu-ment”. He has not stated what these “intricate questions of law” are.These comments are inconsistent with the specific finding already madeby him, that the use of the Hansard by Petitioners to discredit theaffidavit of the 1st Respondent and thereby to support a decisionagainst the 1st Respondent that he has infringed a fundamental rightof the petitioners , is “perfectly proper”. It appears that Fernando, J.has attempted to sever the stage of discrediting the affidavit of the 1 stRespondent from the stage of entering a finding against him that heinfringed the fundamental rights of the petitioners. These two are stagesof a single process of deciding on the complaint made to court by thePetitioners that the 1 st Respondent infringed their fundamental rightsand should therefore be held liable to compensate them by payingdamages in a sum of Rs. 40,000/- each per month and further dam-ages for violation of their Fundamental Rights. It is clear from the judg-ment of Wijetunga, J. and the evidence in the case is equivocal andthat the finding against the 1st Respondent is made on the basis ofthe statements made by him in Parliament. In other words, the scaleis tilted against the 1 st Respondent on the basis of these statementsalleged to have been made by him in Parliament. If so, I cannot com-prehend the comments of Fernando, J. that these statements are notrelied on by the Petitioners to support their cause of action against the1st Respondent. Indeed, the Petitioners have produced the Hansardwith their counter affidavit as evidence against the 1st Respondentthereby and to support their complaint to court and claim for damagesagainst the 1 st Respondent. In my view, it is here that the Petitionerscommitted a breach of the absolute privilege and immunity enjoyed bythe 1 st Respondent. I am further of the view that the court should notaccede to such a breach of privilege by relying on the statements asagainst the 1st Respondent. I
I have in this judgment referred to the judgment of Samarakoon, C.J.in the J.B. Textiles case (supra) firstly to demonstrate that he hasaccepted the decision of Browne, J. in the Church of Scientology case(supra) and secondly to distinguish the nature of proceedings in the
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J. B. Textiles case with the nature of proceedings in the instant case.Fernando, J. appears to have misunderstood what has been stated byme when he drew the following inference;” Perera, J’s view, thereforenecessarily means that it would be legitimate to exclude the Hansardextracts in a fundamental rights application, if they are relied on toprove a violation for the purpose of obtaining only a declaration (whichis the first relief granted in this case)”. The intrinsic nature of aparticular proceeding has to be determined by the relief soughtfrom court by the applicant in that case and not from the reliefthat is finally granted by Court. Such a test is vital in consideringwhether any item of evidence adduced by a party could be actedupon by Court. It is in this context that I noted that in an applicationfor a Writ of Certiorari (J.B. Textiles case) a Petitioner is only seekingto quash the impugned order and not to impose any liability on theofficer who made that order. Fernando, J. has made the point that aWrit of Mandamus has also been prayed for in that case “and if grantedthere would have been a duty which is a liability to act in a particularway under pain of contempt”. A writ of Mandamus lies only to dis-charge a Public or Statutory Duty. It is to be borne in mind that nopersonal liability whatsoever is cast on the particular authority in sucha proceeding. An order for costs is made by court in all cases. Surely,the fact that an order for costs is made cannot be the determinant ofthe nature of a particular proceeding. It is because of the fact thatthere is no personal liability that is sought to be imposed in an applica-tion for a Writ of Certiorari or for that matter a Writ of Mandamus thatthe Court of Appeal (Appellate Procedure) Rules 1990 published inGovernment Gazette No. 645/4 of 15.1.1991 provides (Rule 5 (2)) thata public Officer may be made a Respondent in an application for a Writof Certiorari by a reference to his official designation only (and not byname). Rule 5 (3) (c) provides that where the public officer who is aRespondent ceased to hold office pending the proceedings, his suc-cessor in office will be bound by the order finally made by Court. Sucha provision is there in the Rules in relation to an application inter aliafor a Writ of Certiorari and a Writ of Mandamus for the simple reasonthat no personal liability is sought or imposed on an officer whoseorder is challenged in such an application. On the contrary where thereis an infringement or an imminent infringement of fundamental rightsthe person affected seeks “relief or redress in respect of such infringe-ment” (Article 126 (2) of the Constitution) The relief or redress soughtis never limited to a declaration but extend to claims for compensationand damages against the Respondents, as in this case. Rule 44 (1) (b)
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of the Supreme Court Rules 1990 published in Government Gazette665/32 dated 7.6.91 requires an applicant to “name as Respondents
the person or persons who have infringed or are about to
infringe such right”. This requirement has been placed since the appli-cants invariably claim relief personally as against the Respondents.Thus the two types of proceedings are intrinsically different. It is in thiscontext that I have accepted the dictum of Browne, J. and the com-ments made by Samarakoon, C.J. in affirming that dictum.
Further, I cannot agree with the observation of Fernando, J. that “the
guarantee of equality in Article 12 seemsto be a superior
norm to the law governing Parliamentary Privilege”. An observation asto what is higher and what is lower, must be made only upon a fullevaluation of its implications and then too only if it is strictly neces-sary to arrive at a final decision in the case. To my mind, the law as toParliamentary Privilege guarantees to a Member of Parliament the fullfreedom of speech subject to rules of Debate and Order in the House.This freedom is the cornerstone of a democratic Parliamentary sys-tem. It is for this reason that the freedom of speech has been guaran-teed by the Bill of Rights which dates back to 1688. The Right of Equalitybasically guarantees to all persons “equality before the Law” and “theequal protection of the Law” (Article 12(1) of the Constitution). Theterm of “Law” is used in its widest sense and would include the Law ofParliamentary Privilege. To say the least, an applicant who is pleadinga case of equality before the law cannot urge that the Law of Parlia-mentary Privilege should not apply in relation to his case. Therefore, Ido not feel inhibited in applying the Law of Parliamentary Privilege indeciding on this application especially so when the law specificallyrequires the Court to take judicial notice of such privilege.
Finally I wish to state that I am unable to agree with the view ex-pressed by Fernando, J. that the question of Freedom of Speech inParliament and of the absolute privilege and immunities enjoyed by amember does not arise for consideration in this case where a Hansardis used as evidence against the 1 st Respondent who is a Member ofParliament. It is to be noted that Counsel for the 1st Respondent hasspecifically submitted that the contents of the relevant Hansard shouldnot be acted upon as against the 1 st Respondent. Hence the observa-tions of Fernando, J. that the 1st Respondent did not object to anyreference being made to Hansard extracts is in my view incorrect.
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The ratio in the J. B. Textiles case (supra) does not apply to thefacts and circumstances of this case in view of the distinct differencein the respective nature of the proceedings and the claim of the Peti-tioners for compensation against the 1 st Respondent.
For the foregoing reasons, I cannot agree with any of the commentsmade by Fernando J. I see no basis to depart from my conclusionsstated on a matter in which the Court is bound to take judicial notice.
WIJETUNGA, J.These two applications were taken up for hearing together, of con-sent, as they relate substantially to the same matter and the Respond-ents in both applications are the same.
The 1 st to 62nd Petitioners in Application No. 66/95 are members ofthe United Airport Taxi Services Society Ltd. (“UATSSL), the 63rd pe-titioner and the 1 st to 29th petitioners in Application No. 67/95 aremembers of the Airport Taxi Services Co-operative Society Ltd.(“ATSCSL”). the 30th petitioner.
The two societies had entered into agreements with the Airport andAviation Services (Sri Lanka) Ltd., the 14th Respondent, to enable theirmembers to provide taxi services for passengers disembarking at theColombo International Airport, Katunayake (“Airport”), for a period of 6years commencing from 1.1.91. The said agreements are valid until31.12.96. A third society by the name of Airport Taxi Services SocietyLtd. (“ATSSL”) too had entered into a similar agreement with the 14thRespondent. These three societies had 200 taxis operating at the Air-port and were the only taxis so permitted by the 14th Respondent atthe time. A monthly fee of Rs. 1000/- was payable in respect of eachvehicle. It is common ground, however, that the 14th Respondent wasat liberty to provide similar services itself, or through other persons orbodies, by means of similar agreements or otherwise.
In terms of the said agreements and the other arrangements madebetween the parties from time to time, the members of ATSSL wereallocated numbers from 1 to 63, ATSSL from 64 to 115 and UATSSLfrom 116 to 200. Passengers needing the services of a taxi were re-
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quired to obtain such services from the counter of the 14th Respond-.ent, which would allocate a taxi on a duty turn commencing from number1 and ending at 200, so as to ensure that the services of all 200 taxiswere fairly and equally distributed.
The agreements between the parties included the following cov-enants:
“1. The Company will operate a taxi information counter. The pas-sengers wishing to obtain a taxi will indicate his/her destination to theofficer at this counter. Thereupon the passenger will be provided with acoupon which indicates the destination and the standard rate to thatdestination, thereupon the passenger will give one copy of this couponto the taxi despatcher of the Operator and the taxi despatcher shallassist the passenger into the taxi first in line at the ‘taxi stall’ immedi-ately in front of the terminal area. The despatcher shall thereupon sig-nal by suitable method to the next taxi in line.
2.3. The Manager [of the Company] shall maintain performance recordsof each taxi authorised to operate at the Airport and shall inform theOperator of the nature of the performance. The performance will berecorded on the prescribed form a copy of which will from time to timebe sent to the Operator. Renewal of this contract will depend on theperformance level attained by each taxi.”
The 14th Respondent has made no complaint about the manner inwhich the petitioner-societies and their members discharged their ob-ligations under the agreements.
The petitioners claim that the members of UATSSL and ATSCSLwere predominantly supporters of the United National Party (“UNP”),while the members of ATSSL were predominantly supporters of thePeople’s Alliance CPA”). They further state that the vast majority ofthe membership of the two petitioner-societies worked for the UNP atall elections including the last General Election and the PresidentialElection and it was well known that they engaged themselves activelyin the aforesaid election campaigns.
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The petitioners allege that in January 1995, they became aware of aplan to deprive them of engaging in their lawful occupation, in the exer-cise of their rights in terms of the said agreements to provide taxiservices at the Airport, and to substitute in their place, the supportersof the 1 st to 7th Respondents, and of the PA to provide these services.In particular, they became aware of a move by the 1 st to 7th Respond-ents, together with other supporters of the PA, to hold a public meetingon 31.1.95. at the premises of the Airport and to intimidate the peti-tioners and members of the two petitioner-societies, so as to chasethem away and prevent them from operating taxi services at the Air-port.
On receipt of this information, and in anticipation of violence directedtowards them, they met Mr. Wijepala Mendis, Member of Parliamentfor the Gampaha District on 30.1.95 and appealed to him to obtainpolice protection at the venue of the meeting scheduled for 31.1.95.The petitioners claim that, in consequence of their representations,Mr. Mendis communicated with the Inspector-General of Police request-ing that adequate security be provided to the petitioners and membersof these two societies. The petitioners also appealed to the 15th Re-spondent, the Chairman of the 14th Respondent, by letters dated31.1.95 (P2) apprising him of the developments and requesting thatadequate steps be taken inter alia to provide security for the membersand their vehicles in terms of their agreements.
On 31.1.95 the 1 st to 7th Respondents held the public meeting asscheduled at the premises of the Airport. The main theme at this meet-ing was that the members of the two petitioner-societies were support-ers of the UNP and should therefore be prevented from operating taxisat the Airport. The petitioners claim that the 1 st Respondent addresseda gathering of about 300 to 400 persons and stated that the membersof these two societies were UNP stooges who had earned enough dur-ing the last several years and that they should take their vehicles andleave the Airport premises within 15 minutes, failing which they wouldhave to face grave consequences. The 7th Respondent too made avociferous speech thereafter on similar lines. They also claim that sev-eral armed and masked thugs, including one who got on top of a Pajerovehicle bearing No. 64-1585, were in the vicinity using abusive lan-guage and threatening the petitioners and other members of the twosocieties who were present to leave the place immediately before theywere set upon and their vehicles smashed up and damaged.
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The petitioners further state that though there were around 150 to200 policemen, including the 10th to 13th Respondents and severalsecurity officers of the 14th Respondent on duty at this location, noneof them made any attempt to dissuade the speakers from inciting thecrowd or the thugs from intimidating their members.
They, therefore, had no alternative but to leave the premises, as thepolice officers present did not appear to take any steps to afford themprotection. They have annexed to their petitions, marked P3 (A) andP3 (B), reports pertaining to the said meeting as appearing in the’Divaina’ of 1.2.95 and the ‘Sunday Leader’ of 5.2.95. They have alsoproduced marked P4 (A) a copy of a complaint made to the police inregard to the incidents of 31.1.95.
The petitioners further state that the armed thugs who intimidatedthe members of the two petitioner societies on 31.1.95 continued to bein the Airport premises even thereafter, indeed even as at the date ofthese applications, preventing their members from entering the Airportand engaging in their occupation. The police officers and the securitypersonnel of the 14th Respondent who were detailed for duty at thesepremises did not take any preventive action.
Several complaints have been lodged at the Katunayake Police Sta-tion by the petitioners and other members of these two societies per-taining to the aforesaid intimidation and wrongful restraint but the po-lice have failed to take any action. The petitioners have annexed markedP6 (1) to P6 (49), receipts obtained from the police in proof of the factthat they have made such complaints to the police. They have alsocomplained to the 14th Respondent in this connection and have pro-duced a copy of that letter dated 8.2.95 marked P6. They further statethat they have written to the 8th and 9th Respondents and appealed onseveral occasions to the 10th, 11th, 12th and 13th Respondents totake necessary action against those responsible, but these Respond-ents, being influenced by the 1st to 7th Respondents, have failed totake any action on the several complaints and appeals made by them.They have produced marked P6 a copy of a letter dated 3.2.95 writtento the 15th Respondent by their lawyer, in this connection. They havealso annexed two other affidavits marked P10 and P10 from two of theirmembers who are taxi drivers.
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The petitioners state that meanwhile, the 14th Respondent has per-mitted the members of the 16th Respondent to provide taxi services atthe Airport. They have produced marked P12 a photo copy of a memo-randum distributed by the 14th Respondent announcing the mobiliza-tion of this new taxi service with effect from 1.2.95. The 16th Respond-ent company comprises of 400 members, who the petitioners claimare supporters of the PA and have benefited in this way due to theinfluence exerted on the 14th and 15th Respondents by the 1 st to 7thRespondents. The Chairman of the 16th Respondent company is the7th Respondent. The Secretary of the company, they state is oneFelician Fernandopulle, the brother of the 1st Respondent. They haveannexed marked P13, a copy of a news report appearing in the’Dinamina’ of 1.2.95 which makes such reference. The petitioners fur-ther state that a few members of their societies who are suporters ofthe PA have also been included as members of the 16th Respondentcompany.
The petitioners allege that as they are thus prevented from enteringthe Airport to perform their services in terms of the agreements, thetaxi services at the Airport are now exclusively performed by the rpem-bers of the 16th Respondent who are all supporters of the 1st to 7thRespondents and the PA. They claim that the 1st and 7th Respond-ents have brought pressure to bear on and influenced the 8th to 13thRespondents and the 14th and 15th Respondents to achieve this ob-jective.
By reason of such conduct which constitutes administrative and/orexecutive action on the part of the 8th to 15th Respondents, the peti-tioners complain of the infringement of their fundamental rights underArticles 12(1). 12 (2) and 14 (1) (g) of the Constitution, by the Re-spondents.
The petitioners state that on an average each of them earned aboutRs. 40,000/= per month by providing the taxi services at the Airportand they have been deprived of this income commencing from 1.2.95.The monthly revenue reports for July and August, 1994, prepared bythe 14th Respondent have been produced in support.
Leave to proceed has been granted in respect of the alleged in-
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Wijetunga, J.)53
fringement of Articles 12(1), 12 (2) and 14 (1) (g) of the Constitution,read with Article 14(1) (c).
The 1st Respondent by his affidavit dated 23.5.95 whilst denyingthe allegations against him, states that he was invited to be the chiefguest at the inauguration of the new taxi services on 1.2.95 which wasto be held at the premises opposite the Airport. Accordingly, he wentto Katunayake around 9.30.a.m. and was the first among the inviteesto arrive there. Within minutes, the Transport Manager of the Airportcame with the officials. Then the other invitees, i.e. the 2nd to 6thRespondents who are Members of Parliament or Provincial Councillorsfrom the District and the members of the new taxi service also arrived.
Nandawansa de Silva, a Director of the 16th Respondent, welcomedthe gathering. Thereafter, the Transport Manager of the Airport addressedthem on the formalities of operation of taxis at the Airport and ex-plained the requirements in regard to the standard expected of Airporttaxis. The 2nd to 7th Respondents and the 1st Respondent himselfspoke a few words. The ceremony was concluded by about 11 .a.m. Inhis speech, he wished the new taxi service all success. Nobody saidthat the members of the petitioner-societies were UNP stooges, etc.The 1st Respondent specifically denies that the members of the peti-tioner-societies were asked to leave the premises within 15 minutes,failing which they would have to face the consequences. He claimsthat the ceremony was peaceful and that there was no incident of vio-lence or intimidation against the petitioners whatsoever and that hewas unware that they were even present.
The averments contained in paragraph 8 of the petition, he states,are false to the knowledge of the petitioners. In that paragraph in S.C.No. 66/95 the petitioners allege that:
The 1st Respondent addressed a gathering of about 300 to 400persons and stated that the members of the 63rd Petitioner Societyand those of the Airport Taxi Services Co-operative Society Ltd, wereUNP stooges who had earned enough during the last several years andthat they should take their vehicles and leave the Airport premiseswithin 15 minutes. He also stated that they would otherwise have toface grave consequences. Thereafter the 7th Respondent made a
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vociferous speech in which he too in a very intimidatory manner de-nounced the members of the aforesaid two Societies stating that theywere supporters of the UNP and enemies of the people and calledupon them to immediately leave the Airport premises threatening thator else their vehicles would be smashed up. Meanwhile a masked thuggot on top of a Pajero vehicle bearing number 64-1585 and shouted outordering the aforesaid members to immediately leave the place beforethey were set upon and their vehicles were smashed up.”
The petitioners and any other persons entitled to operate taxis, hesays, were not prevented from operating taxis. The 10th to 13th Re-spondents have never been influenced by him or the 2nd to 7th Re-spondents to desist from taking action on complaints allegedly madeby the petitioners. Nor have his vehicles been used to intimidate taxidrivers.
The new taxi service was introduced in a manner authorised by lawand without any political influence as alleged by the petitioners. Hedenies that all 400 members thereof are supporters of the PA. He claimsthat the petitioners have been politically motivated to make false alle-gations against him and he has not violated any of the fundamentalrights of the petitioners.
The 2nd to 6th Respondents too, while denying the allegations con-tained in the petitions, state that they have perused the affidavits of the1st and 7th Respondents and they are in agreement with the aver-ments contained therein. They further state that each of them spoke afew words and wished the new taxi service all success and thankedthose who invited them for the ceremony. They also deny that theyviolated tb ^fundamental rights of any of the petitioners.
Learned President’s Counsel for the petitioners conceded during thehearing that there was no evidence of any involvement by the 2nd to6th Respondents in the alleged violation of the petitioners fundamentalrights and stated that he was not seeking any relief against them. Theallegations against them must, therefore, be rejected.
The 7th Respondent who is the Co-ordinating Secretary to the DeputyMinister of Planning, Ethnic Affairs and National Integration (the 1st
SC De Silva and Others v. Jeyaraj Femandopuiie and Others (Wijetunga, J.)55
Respondent) while denying the allegations against him, states that hetoo is in agreement with and adopts the averments contained in theaffidavit of the 1 st Respondent.
He further states that the Colombo International Airport Taxi Serv-ices (Pvt.) Ltd. (16th Respondent) was incorporated under the Compa-nies Act on 3.1.95. He is the Chairman/Director of the company. Thecompany applied to the 14th Respondent for permission to run a taxiservice at the Airport which was approved. Thereafter an agreementwas entered into between the 14th and 16th Respondents. The 14thRespondent allocated numbers from 200 {sic) to 600 to the 16th Re-spondent company. Permission was granted to operate the taxi serv-ice from 1.00 a.m. on 1.2.95. A simple ceremony was organised on31.1.95 to inaugurate the new taxi service at the Airport. He invited the1st to 6th Respondents for the inauguration ceremony. The 1st Re-spondent was to be the chief guest. Officials of the Airport authoritiesand the Katunayake Police were also informed about the ceremony.
The rest of the averments of his affidavit are substantially the sameas those of the 1 st Respondent. He denies that he made a vociferousspeech as alleged by the petitioners or that any threats were directedby him at the petitioners. He says that he left the venue around11.15.a.m. However, consequent to the complaint marked P4 (A) [of1.2.95], he made a statement to the Katunayake Police who were in-vestigating the said complaint, denying the allegations.
Nandawansa de Silva aforementioned, a Director of the 16th Re-spondent, has filed affidavits for and on behalf of the 16th Respondent.The contents of his affidavits too are substantially the same as thoseof the 1 st and 7th Respondents, except that he adverts to matterspertaining to the formation of the two petitioner-societies and the eventsleading to the inauguration of the taxi service on 31.1.95. He also men-tions that the 16th Respondent, by letter dated 11.1.95 (16R5), appliedto the 15th Respondent for the operation of a taxi service. This requestwas recommended by the 1 st Respondent. The 14th Respondent, byits letter of the same day (15 R6) informed the 7th Respondent that the15th Respondent had granted the necessary approval.
Two of the police officers present, namely the 10th Respondent whois the Senior Superintendent of Police, Negombo Division and the 13th
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Respondent who is the Chief Inspector of Police, Katunayake PoliceStation, have also filed affidavits supporting the version of the 1st to7th Respondents. They state that no information had been received bythe police of any plan to deprive the petitioners of engaging in theirlawful occupation or to permit other persons to operate taxis in theirplace or to chase away any persons thereby preventing them fromoperating their taxi service. They further state that they received P2(dated 31.1.95) only on 7.2.95, but received instructions from the DeputyInspector-General of Police (Western Province-Northern Range) thatthe 1st and 2nd Respondents and several other members of Parlia-ment were to be present at the Airport on 31.1.95 in connection with anew taxi company commencing operations from the Airport and to pro-vide adequate security. Accordingly, steps were taken to deploy addi-tional police officers and to provide adequate security to all personswho would be present on this occasion. No information had been re-ceived by the police of any anticipated violence against the petitioners;nor had approval been sought or granted to any person to hold a publicmeeting at the Airport on this day. They were present at the Airport forsupervising the security that was being provided and state that around80 police officers from the Negombo and Katunayake Police Stationshad been deployed at the Airport premises for this purpose.
They state that an officer of the 14th Respondent addressed the taxioperators of the new company (16th Respondent) as to the expectedstandards of conduct and other operational matters. Thereafter the of-ficers of the 14th Respondent commenced inspection of the vehicles ofthe new taxi operators. At this time they saw the 1st and 2nd Re-spondents and the others speaking to the crowd that had gatheredaround them a short distance away from the place where the vehicleswere being inspected. They specifically state that they did not hearany of the persons asking any taxi operator to leave the Airport premisesor threatening that their vehicles would be smashed up. They deny thatthere were masked or armed thugs present or that any incidents lead-ing to a breach of the peace took place on that day. Nor did theyobserve a mass exodus of taxi operators: no complaints of any suchincidents were made to any officer on that occasion. They howeveradmit that the complaint marked P4A had been made to the KatunayakePolice on 1.2.95.
SC De Silva and Others v. Jeyaraj Femandopulle and Others (Wijetunga, J.)57
Several complaints corresponding to P6 (1) to P6 (49), made at theKatunayake Police Station between 1.2.95 and 10.2.95, have beenproduced marked 13R1 to 13R49, but they deny that the police havenot taken any action thereon. They state that investigations have beenconducted into all such complaints but most of the complaints relateto acts done by unidentified persons; investigations carried out so farhad not revealed any evidence regarding the occurrence of such inci-dents or the identity of any of the persons allegedly responsible forsuch incidents.
They state that subsequent to these complaints police patrols inthe Airport premises have been intensified but no such incidents asare alleged had been detected; nor have any masked or armed per-sons been seen by the officers on duty. In any event, all vehicles enter-ing the Airport premises are checked by the police officers.
The 13th Respondent further states that, prior to the making of thesecomplaints, two police officers were placed on duty at the Arrivals Ter-minal of the Airport (where taxi operators generally operate from) dur-ing every 8 hour shift, round the clock. Subsequent to the said compaints,five police constables and one Sub-Inspector of Police have now beenplaced on duty at the Arrivals Terminal during every eight hour shift,but no incidents as alleged have been detected.
The Respondents have also submitted an affidavit from the Managerof the 14th Respondent. He too denies that any public meeting washeld at the Airport on 31.1.95 or that any incidents of the nature re-ferred to by the petitioners took place on this day at the Airportpremises.
He states that on 31.1.95 the members of the 16th Respondentproduced 38 vehicles for inspection and Turn Numbers 201 to 238 wereissued to these vehicles. At the outset, the Assistant Manager ad-dressed the prospective operators and drivers and read out and ex-plained the instructions that have to be adhered to by taxi operators atthe Airport. He was present at this time supervising the activities thatwere taking place. He noticed that the 1 st, 2nd, 4th and 7th Respond-ents were present there. Around 10 a.m., the Assistant Manager com-menced the inspection of vehicles under his supervision, along the
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traffic lanes adjoining the Airport taxi park. During this time, he noticedthe 1st, 2nd, 4th and 7th Respondents talking to the persons who weregathered around them, a short distance away from the place where theinspection of vehicles was being carried out. He did not notice anycommotion of any masked or armed persons. Nor did he notice anymass exodus of taxis of the three companies which had subsistingagreements with the 14th Respondent. There was no interruption ordisturbance whatsoever to the inspection of vehicles that was beingcarried out at the time. About one and a half hours later, he noticedthat the 1st, 2nd and 4th Respondents were not among the personspresent. The inspection of vehicles was continued after the lunch breakand thereafter the agreement was signed between the 14th and 16thRespondent companies. He further states that no complaints of threatsor harassment were received by him or the Duty Manager at the Airporton 31.1.95. He adds that the Turn Numbers issued to the members ofthe two petitioner societies are still valid and their members are free touse their right to obtain their turns in terms of the agreement enteredinto with the respective companies.
Had the matter rested at that, it was arguable that there was noreason to disbelieve the 1 st and the 7th Respondents’ version and thatthe petitioners had failed to establish their allegations of instigation ona balance of probability. However, what happened thereafter significantlychanged the position in regard to the reliance that could be placed onthe 1st respondent’s affidavit.
There was a news item in the ‘Divaina’ newspaper of 6.2.95 head-lineds>iz oiGeoso® soagflo 6c)i3″ .Police turn a blind
eye while masked (persons) go about in Pajeros”, which referred toacts of thuggery in the Katunayake area. This news item was referredto in Parliament on 7.2.95. In reply to the 1st respondent’s affidavitdenying the remarks attributed to him, the petitioners filed a counter-affidavit dated 31.5.95 annexing extracts from the Hansard of 7.2.95(P16) which records the following exchanges-.-
“cdd@«$3 da8©® so&OCo ®<sgid
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The 1st Respondent did not deny or explain the statements attrib-uted to him, by means of a counter affidavit; nor did his counsel seekto deny those statements or take any objection to their admissibility inevidence. Learned counsel’s position was that such statements madein Parliament must not be treated as if they were precise responses toquestions; that when the matter was raised, the 1 st Responded gave apolitical response, rather than a factual response; that his observa-tions were general and not intended to refer to the facts of this particu-lar incident and that such statements made in the cut and thrust ofdebate often contain over statements and inaccuracies. Hence, coun-sel submitted that they cannot be treated in the same way as an aver-ment in an affidavit filed in Court proceedings. He strenuously con-tended that the 1st Repondent’s affidavit set out the correct positionand that his statements in Parliament should not be used to test theaccuracy or credibility of that affidavit.
I am not at all attracted by this contention. An averment in an affida-vit, no less than oral evidence, can be tested by reference to a priorinconsistent statement. Just as a witness who gives oral evidence musthave an opportunity to explain a prior statement whilst still in the wit-ness box, a party who submits an affidavit has a similar opportunity ofdoing so by means of a counter affidavit. The 1st Respondent did notseek the permission of Court to file an explanatory counter affidavit,although the hearing was about three months after the Hansard ex-tracts were produced.
It is also relevant to note that the statements made by the 1 st Re-spondent in Parliament were within a week of 31st January.
The Hansard extracts establish the following facts. One Memberreferred to the ‘Divaina’ news item, and then made a specific referenceto the Airport taxi drivers being chased away. He was interrupted atthat stage. The 1st Respondent then made a long statement, and,later, further observations on the same subject, as to what happenedand the reasons therefor. The following are significant:
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SC De Silva and Others v. Jeyaraj Femandopulle and Others (Wijetunga, J.)61
INCLUDEPICTURE “D:\FINAL DONE ABBY\WORD\done\SRILANKA LAW REPORTS\SLLR 1996 V 1\media\image5.png” * MERGEFORMATINET INCLUDEPICTURE “D:\FINAL DONE ABBY\WORD\done\SRILANKA LAW REPORTS\SLLR 1996 V 1\media\image5.png” * MERGEFORMATINET In the absence of any counter-affidavit from the 1 st Respondent, hisremarks in Parliament cannot be interpreted, discounted or otherwisequestioned as being general statements about thuggery, or generalpolitical views about political opponents or wrong doers, or otherwise.The Court must take the Hansard as it is, as setting out certain facts,namely, that the 1 st Respondent made a series of remarks, withoutattempting to draw any inferences from those facts or to come to anyconclusion as to the truth or otherwise of what he said.
The 1 st Respondent’s affidavit is thus contradicted by the fact thathe made statements in Parliament which are quite inconsistent withhis affidavit. Those inconsistencies are so grave, that his affidavit can-not safely be acted upon. The consequence is that, as between thepetitioners’ and the 1 st Respondent’s versions, it is more probable thatthe 1 st Respondent did (as alleged by the petitioners) instigate thosepresent, by labelling the members of the petitioner-societies as UNPstooges and by uttering threats intended to drive them away from theAirport.
It is necessary to stress that I do not, in any way, regard the 1stRespondent’s statements in Parliament as amounting to admissionsor corroboration of the petitioners version, or as substantive evidence,but only as facts (i.e. inconsistent statements) relevant to the credibil-ity of his affidavit.
The resulting position is that we have, on the one hand, the petition-ers version, which is in no way internally inconsistent; and (as willappear later in this judgment) their version of the events of 31.1.95 andthe subsequent months is intrinsically consistent. On the other hand,the 1 st Respondent’s affidavit is unreliable because it is seriously con-tradicted by his own previous statement, and that deficiency is so se-rious that it cannot be offset by the other affidavits, tendered by the
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Respondents, which directly or indirectly corroborate his version. It isnot a mere inconsistency but a fundamental contradiction. Corrobora-tion is undoubtedly desirable and relevant, but where the principal evi-dence sought to be corroborated is so seriously contradicted, corrobo-ration cannot, rehabilitate it.
I must, however, state that the infirmities in the 1st Respondent’saffidavit do not help the petitioners to tilt the balance in so far as the7th Respondent is concerned; for his affidavit is not undermined byother inconsistent statements. I therefore hold that the petitioners havefailed to establish instigation, participation or other involvement by the7th Respondent.
It is appropriate at this stage to consider the alleged exclusion ofthe members of the petitioner societies from the Airport. Their positionis that some members of their societies also joined the 16th Respond-ent and that, apart from those persons, none of the other memberswere given hires after 9.30.a.m. on 31.1.95.
The duty rosters were not produced by any party; learned Presi-dent’s Counsel for the petitioners claimed that the petitioners had notbeen given copies, but learned State Counsel contended that therewas no evidence of this. If the duty rosters had shown that the peti-tioners were in fact given hires as usual, there was no reason for theManager (on 21.6.95) to refuse to discuss matters relating to the im-plementation of the subsisting agreements, as mentioned later in thisjudgment. What is more, the 14th Respondent should have producedthose duty rosters at the very outset to contradict the averments in thepetitions that only members of the 16th Respondent has been allowedhires after 9.30.a.m.on 31.1.95. Instead, the Manager answered thoseaverments without producing or even referring to the relevant documents;without stating anything about the position on and after 2.2.95, hemerely set out 12 numbers of members of AISCS whose drivers hadobtained hires on 31.1.95, but with no indication whether those werebefore or after 9.30.a.m; and seven numbers of AISCSL members whohad obtained hires on 1.2.95. Considering that the statistics furnishedby the Manager showed an average of 3000 disembarking passengersper day, it seems probable that each of the drivers would have got atleast one hire every day. If so there is every likelihood that the petition-
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ers obtained the hires on 31.1.95 during the first nine or ten hours ofthat day.
According to their second affidavit dated 31.5.95, the petitionershad applied to the 14th Respondent to furnish them with a statementreflecting the allocation of duty turns to taxi operators and the monthlyrevenue reports of Airport taxi services for the period 1.2.95 to date butthey have been unable to obtain this material. They claim that the dutyrosters would establish that none of their members have been able toobtain even a single duty turn after 1.2.95. The 14th Respondent’s fail-ure to furnish the relevant information to Court lends credence to thepetitioners’ claim.
The petitioners have therefore established, on a balance of prob-abilities that, with seven exceptions on 1.2.95, they did not receiveany hires after 9.30.a.m. on 31.1.95: and beyond reasonable doubt,that on and after 2.2.95 they received no hires. Was this because ofthreats of violence or was it quite voluntary? The petitioners have pro-duced the particulars furnished by the 14th Respondent of their monthlyincome for the months of July and August, 1994, (P14 and P15) show-ing that most of them earned between Rs.30,000/- and Rs.40,000/- permonth. One cannot imagine that all of them suddenly decided to foregothis income voluntarily.
Further, the 14th Respondent and its Manager had been of the viewin January that more taxis were required. On 31.1.95, 38 vehicles ofthe 16th Respondent were inspected. This made a total of 238 vehiclesavailable. But, by 1.2.95 over one hundred of the original 200 vehiclesceased to operate, so that there remained only about 130. There is nosuggestion that the 16th Respondent increased the number of taxis.Disembarking passengers would have been seriously inconveniencedthereby. Considering the speed with which the 14th Respondent actedon 11.1.95, in order to increase the number of taxis available, one wouldhave expected equal concern when the number of taxis dropped onand after 2.2.95. Unless they were aware that this was due to reasonsbeyond the control of the taxi drivers concerned, the 14th and 15thRespondents and the Manger would have inquired from the petitioner-societies why they were not fulfulling their obligations under the agree-ments.
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The conclusion is inescapable. They made no such inquiries be-cause they knew that the petitioners were not keeping away voluntar-ily; and they could not have penalised the petitioner-societies in anyway, considering the prevailing circumstances.
When these applications were called in Court on 2.6.95, counselappearing for the 14th and 15th Respondents informed Court that thesaid Respondents have no objection and are always willing to permitthe petitioners to operate their taxis at the Airport.
The petitioners state in their affidavit dated 11.7.95 that they madean appointment to meet the General Manager of the 14th Respondentat 9.30.a.m. on 21.6.95 to discuss the arrangements to operate theirtaxis but on the morning of that day, the General Manager informedthem that he is unable to discuss any matter connected with the is-sues relating to these applications as the matter is pending beforeCourt. He further stated that without an order from this Court, he wasunable to grant any facilities that are required for the petitioners tooperate their taxis at the Airport. The petitioners, therefore, sought anorder from this Court directing the 14th Respondent to grant all facilities to enable them to operate their taxis at the Airport.
On 18.7.95 the Court made order permitting the petitioners to meetthe 14th and 15th Respondents to discuss the necessary arrange-ments in regard to operating their taxis at the Airport and State Coun-sel appearing on behalf of the 14th and 15th Respondents had no ob-jection to this arrangement and undertook to ensure that discussionsare held.
Despite solemn undertakings and pious hopes, the situation as re-gards the petitioners has remained the same.
No instigation, connivance or participation has been alleged againstthe 14th and 15th Respondents and their officials. But the question iswhether there was any other involvement of the kind described in Faizv. Attorney General and Others
In order that the members of the petitioner-societies could exercisetheir rights and discharge their obligations, the 14th and 15th Respond-
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ents had to take reasonable steps to enable them to enter and remainin the Airport premises, without unusual-danger to their person andproperty. If these Respondents could not do so themselves, they hadthe right and the duty to ask the law enforcement authorities for neces-sary assistance.
Several complaints by and on behalf of the petitioners were made inrespect of their exclusion from the Airport premises, but these did notreceive any satisfactory response.
A complaint dated 31.1.95 (P2), received by the 14th Respondentthe same day, referred to anticipated forcible exclusion from the Air-port and requested protection. This was forwarded to the IGP, the 8thRespondent, on 3.2.95; the letter was already copied inter alia to theIGP, Senior S.P. and O.I.C. Katunayake Police. No further reply was sent.
A letter dated 3.2.95 (P9) ,was sent to the 15th Respondent by anAttorney-at-Law on behalf of the two petitioner-societies. This gavedetails of the exclusion and obstruction, and requested protection. Areply dated 3.3.95 (14R.A), was sent only after the petitioners had filedthis application and obtained leave to proceed; it merely stated thatthe area in the Airport where taxis operate comes under the supervi-sion of the police and that the police have been instructed to maintainlaw and order in the area.
Another letter dated 8.2.95 (P7), was sent by the Chairman of therespective petitioner-societies to the Manager, referring to acts of in-timidation by members of the 16th Respondent, together with armedgroups of thugs, thus preventing the members of the petitioner-socie-ties from getting their duty turns. The letter refers to two vehicles usedfor this purpose, by their members and draws attention to the subsist-ing agreements which are valid till 31.12.96 under which their mem-bers are entitled to operate taxis at the Airport; and requests that nec-essary protection be provided to enable them to discharge their dutiesin a suitable atmosphere.
The Manager replied, again, only after leave to proceed had beengranted, on 24.3.95 (14R 1), stating that the matters raised were soimportant that the societies should send a formal communication tothe Chairman (15th Respondent) direct.
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But at no stage did the 14th or 15th Respondents or the Managerinform the petitioners that police assistance would be forthcoming orthat security had been increased and that the petitioners could safelyreturn to work. The 14th and 15th Respondents failed to take any ac-tion even to enable the petitioners safely to enter and to remain in theAirport premises, or to get the law enforcement authorities to takenecessary action. The manner in which they responded to the repre-sentations made to them shows that they were aware of what washappening, and acquiesced in it.
So far as the police were concerned, the letter of 31.1.95 (P2) hadbeen copied to the IGP. Senior S.P. and O.I.C. Katunayake Police.The letter dated 8.2.95 (P7) had also been copied to the I.G.P. But,there were no replies.
There were over 45 individual complaints made during the period
and 10.2.95. Learned State Counsel asserted that action hadbeen taken; the complaints had been investigated and since practi-cally all the complainants were unable to identify the culprits, no fur-ther action was possible. It was pointed out that the complainantswere entitled to some measure of protection to get back to work, towhich learned State Counsel strenuously submitted that the policehad done their duty and had increased the security from two officers tosix at the Arrivals terminal of the Airport. The affidavits did not indicatewhether these officers were armed or how effective these arrangementswould be in relation to the complaints made and the protection re-quested. Even if they were effective, State Counsel conceded that noattempt had been made to inform the petitioners that arrangementshad been made for their protection and that they could go back towork.
Section 92(3) of the Penal Code provides that there is no right ofprivate defence where there is time to ha. 3 recourse “to the protectonof the public authorities”. The (jetitioners were justified in appealing tothe police for protection against threats and violence directed againstthem in regard to their work. Considering the importance of security atthe Airport, and the efficient provision of services for passengers, thepolice were under a duty to take reasonable steps to extend to thepetitioners “the protection of the law” : perhaps not the same high
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degree as the protection extended when the 1st to 6th Respondentscame to the Airport on 31.1.95, but some reasonable protection. Byfailing to extend any protection at all, in circumstances in which theywere under a duty to do so, the police denied the petitioners the equalprotection of the law.
As was said by Fernando, J. in Faiz v. Attorney -General(supra),
“Article 126 speaks of an infringement by executive or administra-tive action; it does not impose a further requirement that such actionmust be by an Executive officer. It follows that the act of a privateindividual would render him liable, if in the circumstances that act isexecutive or administrative. The act of a private individual would beexecutive if such act is done with the authority of the Executive; suchauthority transforms an otherwise purely private act into executive oradministrative action; such authority may be express, or implied fromprior or concurrent acts manifesting approval, instigation, connivance,acquiescence, participation, and the like (including inaction in circum-stances where there is duty to act: and from subsequent acts which
manifest ratification or adoptionin my view responsibility
under Article 126 would extend to all situations in which the nexusbetween the individual and Executive makes it equitable to attributesuch responsibility. The Executive, and the Executive officers from whomsuch authority flows would all be responsible for the infringement. Con-versely, when an infringement by an Executive officer, by executive oradministrative action, is directly and effectively the consequence ofthe act of a private individual (whether by reason of instigation, conniv-ance, participation or otherwise) such individual is also responsible forthe executive or administrative action and the infringement causedthereby. In any event, this Court would have power under Article 126
to make orders and directions against such an individual in order toafford relief to the victim.”
These principles were adopted in Upaliratne v. Tikiri Banda and Oth-ers,® too. Applying the said principles to the facts and circumstancesof this case, I am of the view that on 31.1.95 the 1 st Respondent ren-dered himself liable, in having instigated those who chased away thepetitioners with threats of violence; thereafter the police were guilty ofinaction, in circumstances in which they were under a duty to providereasonable protection to the petitioners; and the 14th and 15th Re-
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spondents, despite knowledge of what was taking place over a longperiod of time, acquiesced in the treatment meted out to the petitioners.They are all thus responsible for the violation of the petitioners funda-mental rights under Article 12 (1), 12 (2) and 14 (1) (g), read with Arti-cle 14 (1) (c) of the Constitution, which violations yet continue.
I accordingly grant the petitioners the following reliefs:-
A declaration that the fundamental rights of the individual pe-titioners under Articles 12 (1), 12 (2) and 14(1) (g), read with 14
(c), and the fundamental rights of the petitioner societies un-der Article 12 (1), have been infringed by the police and the 1stand 14th Respondents.
The State is directed to pay each individual petitioner a sumof Rs. 10,000/- as compensation, as each such petitioner hasbeen prevented during a period of over nine months from engagingin his chosen occupation; this will be without prejudice to therights of the individual petitioners and/or the petitioner societiesto recover damages, if so advised, for breach of contract or other-wise from the State and/or the 14th Respondent.
The 14th Respondent is directed to pay each petitioner-soci-ety a sum of Rs.50,000/- as compensation, as culpable inactionon the part of the 14th Respondent prevented the two petitioner-societies from exerting their rights under the agreements.
Since the violation resulted from the 1st respondent’s instiga-tion, he is directed to pay a sum of Rs.50,000/- as costs:Rs.25,000/ to the petitioner-society in Application No. 66/95,and Rs. 25,000/- to the petitioner-society in Application No.67/95.
The Inspector General of Police, the Deputy Inspector Gen-eral of Police, Negombo Division, the Senior Superintendent ofPolice, Range 1, Negombo, and the Officer-in-Charge of theKatunayake Police Station, are directed to take immediate steps.to provide necessary security and to ensure that the members ofthe two petitioner-societies are able to operate their taxis at theAirport, by themselves or through their duly authorized drivers,according to the duty roster of the 14th Respondent.
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The 14th and 15th Respondents are directed to immediatelyprovide all necessary facilities and ensure adequate security tothe members of the two petitioner-societies and/or their dulyauthorized drivers to operate their taxis at the Airport in terms ofthe duty roster hitherto in existence, under the respective agree-ments in force between the 14th Respondent and the petitioner-societies.
The Inspector-General of Police is directed to furnish a report to thisCourt on or before 15.12.95 indicating the steps taken by the police toensure that the members of the petitioner-societies are able to operatetheir taxis without any obstruction, in terms of the agreements with the14th Respondent.
The 14th and 15th Respondents are directed to furnish a report con-taining particulars of duty turns given to the members of the petitioner-societies, together with particulars of duty turns given to the other taxipperators, for the month of December, 1995. This report should besubmitted to this Court on or before 8.1.96.
The 2nd, 3rd, 4th, 5th and 6th Respondents in each application, inrespect of whom learned President’s Counsel for the petitioners con-ceded at the stage of hearing that there was no evidence, will beentitled, jointly, to a sum of Rs.20,000/- as costs, payable equally bythe petitioner-society in Application No.66/95 (Rs.10,000) and the pe-titioner-society in Application No.67/95 (Rs. 10,000)
My brother Perera disagrees as to the liability of the 1st Respond-ent. As my brother Fernando has dealt comprehensively with the ques-tion of Parliamentary privilege raised by him, I have not adverted to thatmatter, because I entirely agree with Fernando, J.
Relief granted against 1st and 14th Respondents.
Claim against 2nd to 7th Respondents rejected.