. DESHAPRIYA AND ANOTHER
MUNICIPAL COUNCIL, NUWARA ELIYA AND OTHERS
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
S.C. APPLICATION NO. 884/92FEBRUARY 10 AND MARCH 06, 1995,
Fundamental Rights – Freedom of speech and expression – Article 14(1) (a) ofthe Constitution – Seizure of the newspaper "Yukthiya’’
The petitioners are the EcJjtor and Proprietpr, respectively of the weeklynewspaper “Yukthiya”. They allege that the 2nd respondent who is an Attorney-at-|_aw and Mayoress of the Nuwarq Eliya Municipal Council forcibly took away fourbundles containing about 45£) copies of the “Yukthiya" on 10.10.92 from the stallof one Jayasundera and thus prevented this newspaper from reaching itsreaders."
The 2nd respondent took away these copies of the “Yukthiya” while actingunder colour of her office as Mayoress of the Nuwara Eliya Municipal Council. Theseizure was therefore by executive or administrative action. Her motive was todiscourage an anti-government newspaper for political ends. The seizure directlyprevented the publication of ope issue of the ‘Yukthiya' not entirely but in just asmall part of Sri Lanka and related only to 450 copies of the newspaper. TheFreedom of Speech and Expression, including publication of the Editor andProprietor was thereby abridged, even though not totally denied.
Per Fernando, J.
The infringement of Article 14(1) (a) by executive or administrative action, cantake many forms, and may be direct or indirect; the exclusion of anti-governmentnews and views in newspapers owned and controlled by Government,particularly when it amounts to a denial of equal treatment or discriminationbecause of political opinion (of Article 12), would be as much an infringement inthis case as the suppression (by force or otherwise) of such news and views innewspapers independent of the Government. The infringement in this case was inthe latter category, and in my opinion was more serious.
Another aggravating factor was that the 2nd respondent attempted to use thepower of Lake House newspapers 75% of the shareholding of which was held byGovernment to reinforce her efforts to discourage the publication and distributionof the “Yukthiya”. Thus the 2nd respondent not only infringed the petitioners rightsdirectly, but aggravated her conduct by threatening also to procure an improperexercise of the powers of the Government.
Cases referred to:
Ratnasara Thero v. Udugampola (1983) 1 Sri LR 461.
De Jonge v. Oregon (1937) 299 (J.S. 353.
Amaratunga v. Sirimal( 1993) 1 Sri L.R. 264.
Wijeratne v. Perera S.C. 379/93 SCM of 2.3.1994.
Pieris v. A.G. S.C. 156-155 LC 166/92 SCM of 17.6.1994.
APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonesekera with J. C. Weliamuna and L C. M. Swarnadhipathi forpetitioners.
L. C. Seneviratne, PC. with Ronald Perera and H. Situge for the 1st and 2ndrespondents.
Cur. adv. vult.
The petitioners are the Editor and Proprietor, respectively, of theweekly newspaper “Yukthiya" which is printed in Colombo. Theycomplain that their fundamental right of Freedom of Speech andExpression guaranteed by Article 14(1) (a) was infringed by the 2ndrespondent, an Attorney-at-Law and the Mayoress of Nuwara Eliya,who, they allege, forcibly took away four bundles (containing about450 copies) of the “Yukthiya” on 10.10.92, thereby preventing thenewspaper from reaching its intended readers.
The practice followed in regard to the distribution of the “Yukthiya"in and around Nuwara Eliya was to entrust 450 copies in four bundlesto its transport agent, Weliwatta, in Colombo, for delivery by him tothe Lake House newspaper stall run by one Jayasundere at NuwaraEliya; these newspapers were not sold at this stall, but Jayasunderewas responsible for transporting them to “Yukthiya” selling agents atHalgran Oya, Nanu Oya, Keppetipola and Welimada.
There is no dispute that on 10.10.92 Weliwatta did deliver fourbundles of the “Yukthiya” (as well as the “Ravaya” newspaper) to theLake House newspaper stall situated near the entrance to the Park;that Jayasundere’s sister-in-law, Mrs. Sarojanee Jayawardene, wasthe agent for the newspapers published by the AssociatedNewspapers of Ceylon Ltd.; that because Jayasundere had to beaway in Colombo from 8.10.92, he had asked one Thevapalan towork at the stall; that Thevapalan had been carrying on business as ahandling agent for newspapers in Nuwara Eliya for many years; that
Thevapalan took delivery of the newspapers to be handed toJayasundere on his return; that the 2nd respondent, her husband andanother person, came to the stall that morning; that the 2ndRespondent went into the stall and spoke to Thevapalan; that thisstall belonged to the 1st respondent, the Municipal Council ofNuwara Eliya. The 2nd respondent was an ardent supporter of theUnited National Party, then in power both in Parliament and in theMunicipal Council.
There is a sharp conflict in the affidavits as to what happened thatmorning: the exact time is not important – it was at about 11.00 a.m.,according to the petitioners, or a little before 10.30 a.m., according tothe respondents. The petitioners case was that the 2nd respondentasked Thevapalan “Why are you taking these newspapers? Yournewspaper agency will be cancelled"; this is supported by theaffidavits of Weliwatta and one Medagama who was also at the stallat that time. Weliwatta stated that he then left to meet a relative uponsome (unspecified) urgent personal matter. The 2nd respondent thensaid “You can’t be allowed to do these things as you please”, anddirected the other person who was with her to put the bundles ofnewspapers into her car; this was done; this is supported only byMedagama’s affidavit. Half and hour later Weliwatta returned to thestall, whereupon, he says, Thevapalan told him that the 2ndrespondent had taken the “Yukthiya" and “Ravaya" newspapers inher car, saying that these would be sent to Lake House; Thevapalandenied having said this, but confirmed that Weliwatta did return to thestall. After he returned to Colombo, Weliwatta informed the “Yukthiya"management of the incident, and swore an affidavit on 13.10.92setting out what happened. Joe Seneviratne, the Managing Editor ofthe “Yukthiya”, says that the incident was reported to him on
and that on 15.10.92 he submitted a written complaint,dated 14.10.92, to the IGP, annexing this affidavit. Admittedly, butregrettably, the Police took no action. Before making that complaintSeneviratne telephoned the 2nd respondent on 13.10.92 at 5.30 p.m.for verification; he introduced himself, and asked her why she hadforcibly taken away the “Yukthiya” newspapers delivered toJayasundere’s stall on 10.10.92; and she replied that the stall run byJayasundere was owned by the Municipal Council of Nuwara Eliyaand that he could not sell anti-government newspapers such as“Yukthiya”. The petitioners stated that in consequence of thisincident, the “Yukthiya” selling agents at Halgran Oya, Nanu Oya,Keppetipola and Welimada were refusing to accept that newspaper,but there were neither affidavits nor documentary proof of this.
The petitioners further alleged that, as a protest against the 2ndrespondent’s conduct, a demonstration was held on 17.10.92, that. this was disrupted by the Police, and so on. They have producedsome news items and editorials about this demonstration. One wasthe “Island” editorial of 28.10.92 which stated that the “Yukthiya” wasseized “by armed thugs”; and it went on to claim that for three weeksin succession the newspaper had been seized. However, thepetitioners have not alleged that there was any thuggery or violence;Medagama did not say that Thevapalan had been intimidated by anyshow of force; no one even hinted that there were any weapons; andall referred to one single seizure on 10.10.92. Another news item inthe “Island” of 4.10.92 stated that the papers were “hijacked … whilebeing transported from Colombo for distribution", which is nobody’scase. Newspapers have a wide margin for comment, which of courseis free, but facts are sacred: here the facts have been exaggerated tothe point of distortion. Not only is this material unreliable, but it doesnot show that this was a demonstration against the seizure ofnewspapers by the 2nd respondent. Even if there had been such ademonstration, that would have shown, at best, that there was awidespread belief in her complicity; but not that that belief wasprobably justified. In the final analysis, therefore, the Petitioners casedepends on whether the direct evidence establishes, on a balance ofprobability, that the 2nd respondent was responsible for the seizure,and it is unnecessary for me to consider the sequel to the allegedseizure.
The 2nd respondent’s case was that twice or thrice a month shetoured the town accompanied by officials, to ensure that the townwas kept in a clean and sanitary condition; one such visit was on10.10.92 when she was accompanied by her husband as well as fourothers: S. M. Withanage (Secretary to the Municipal Council), S. E.Jeyarajah (Municipal Engineer), and M. Ghany Cassim and D.Madhavan (Members of the Municipal Council).
She did not deny the presence of Weliwatta and Medagama; shesaid that she went to Jayasundere’s stall to buy a newspaper;noticing that the precincts of the stall were in an insanitary condition,she told Thevapalan, who was then the sole occupant, to have theplace cleaned up. Thevapalan confirmed this in his affidavit, andstated that he engaged a labourer the same day and had the placecleaned up. He also admitted that bundles of the “Yukthiya” weredelivered to him, but denies that they were seized by the 2ndrespondent; but neither he nor anyone else explains what happenedto the four bundles – whether they were seized by someone else, ordelivered in due course to Jayasundere or the “Yukthiya” sellingagents, or remained undelivered.
The 2nd respondent’s denial of the seizure is supported by theaffidavits of Withanage, Cassim and Thevapalan. I do not regard theabsence of affidavits from her husband and the other officials asweakening her case.
The 2nd respondent admitted receiving a telephone call from aperson calling himself the Editor of the “Yukthiya”, but did not giveany particulars about the conversation, saying only that “thetelephone call was in the nature of a threat to my life and I replied thatI was not afraid of such threats and replaced the receiver”. She didnot take steps to verify the source of the call or to complain to thePolice. Seneviratne’s assertion that he did accuse her of the allegedseizure of the “Yukthiya" thus remained uncontradicted.
The evidence as to the seizure of the newspapers by the 2ndrespondent is thus fairly evenly balanced. The petitioners depend onthe direct evidence of Medagama, who seems not to have beenconnected to either party; however, the 2nd respondent alleged thathe was “closely associated with the DUNF, and [was] politicallyopposed to the UNP”, although she did not allege that he was ill-disposed towards her personally. That is not a sufficient reason todisbelieve Medagama, just as the affidavits of Withanage and Cassimcannot be discredited simply because of their official or politicalassociation with the 2nd respondent. No reason has been suggestedwhy Weliwatta should falsely implicate the 2nd respondent, who hadonce appeared for him in a criminal case; his evidence contradictsthe 2nd respondent's version that she merely bought a newspaper,because he says that she threatened cancellation of the Lake Housenewspaper agency if “Yukthiya" newspapers were kept in thepremises. It was submitted that Weliwatte’s evidence was notsatisfactory because he failed to make a prompt complaint about theincident to anyone until 12.10.92; and that he did not even telephonethe “Yukthiya” management. But one can understand his reluctanceto get too involved; the newspaper had not been taken from him; hehad discharged his responsibility, and so was content to wait until hegot back to Colombo. He was not an employee of the newspaper,and the fact that he waited till he had finished his business andreturned to Colombo is hardly sufficient to discredit his evidence.Seneviratne’s evidence of his telephone call to the 2nd respondentshows, at the lowest, that the 2nd respondent failed to deny a directaccusation made against her that it was she who had seized thenewspapers. Finally, if the 2nd respondent had not seized thenewspapers, what happened to them? Thevapalan’s failure to explainsuch a simple matter tends to cast some doubt on his veracity. It istrue that the petitioners themselves could have obtained affidavitsfrom the “Yukthiya” selling agents, but they have a plausibleexplanation, namely, that after this incident these agents feared tohandle the newspaper. If that is true, they would also have feared togive affidavits. Learned President’s Counsel submitted that theburden was on the petitioners to obtain an affidavit fromJayasundera, to the effect that Thevapalan did not give him anynewspapers, in the circumstances, it would be unreal for thepetitioners to have expected Jayasundera to say anythingunfavourable to the 2nd respondent, for there was much to lose byantagonising the 2nd respondent – stall, agency and livelihood.
Learned President’s Counsel for the respondent also submittedthat the “Yukthiya" was being published in breach of the law prior to
because, he said, it was only on that day that informationwas given under section 2 of the Newspapers Ordinance (Cap. 180)to the Registrar of Newspapers; he contended that it was unlikely thatthe “Yukthiya" could have had a network of agents prior to October1992. However, there is nothing to suggest that this was the firstinformation given under section 2, and may well have been givenpursuant to a change. Since this submission was made for the firsttime in the course of the hearing, it is not possible to come to afinding that the “Yukthiya” was being published in breach of the law.
It would not have been possible to decide between these twoconflicting versions, but for two significant matters. It was by nomeans improper or unusual for Seneviratne to have confronted the2nd respondent with the accusation which Weliwatta had conveyed
to him, before making a complaint to the Police against her; he hadno personal knowledge of the truth of what Weliwatta had told him.While saying that her life was threatened, she does not clarifywhether any reason was given; as it was not an anonymous call, if noreason was given, did she not inquire why she was beingthreatened? If a reason was given, what was her response orreaction? It is unsatisfactory that she did not clarify the matter byreplying to the specific averments in Jayasundere’s affidavit.Seneviratne filed a second affidavit to clarify the telephone call, andspecifically denied making any threat; although she filed a furtheraffidavit, the 2nd respondent did not clarify her version of thetelephone call, contenting herself with a bare denial of Seneviratne'saverments. It was urged that Seneviratne’s complaint to the IGPmade no mention of his telephone call to the 2nd respondent. If hemade that call in order to check on the truth of Weliwatta’s story,which by then had been reduced to an affidavit, it was not necessaryfor him to refer to that conversation, for he was only making acomplaint having satisfied himself that there were grounds forcomplaint. I find Seneviratne’s version of the telephone call to bemore probable. Secondly, the question whether the newspapers hadbeen seized by the 2nd respondent could have been conclusivelysettled by the affidavit of the person into whose custody they weredelivered, Thevapalan. Although the 2nd respondent obtained anaffidavit from him, Thevapalan did not explain what happened to thenewspapers subsequently; since he said he took charge of them tobe handed to Jayasundere on his return, why did he not clarifywhether that was done? Or whether they were delivered to the“Yukthiya” selling agents, and if so what records existed as to suchdelivery or if they had been stolen by another while in his custody,whether that was reported to the Police, or to the transport agent?The matter was especially within his knowledge, and his failure toclarify it suggests that he had no explanation to offer. It wassubmitted that Thevapalan was only answering the specific allegationthat the 2nd respondent had seized the newspapers from hiscustody, and need not have explained anything else; but his affidavitpurports to do much more than rebut the allegation of seizure, andproceeds to explain his conduct that day. His default assumesgreater significance in contrast to the pains he took to explain a muchless important matter – how he had carried out the 2nd respondent’s
order to clean up the premises, although that was no part of hisduties. If there had been no seizure, then as in the past thenewspapers would have been delivered to the “Yukthiya” sellingagents at Halgran Oya, Nanu Oya, Keppetipola and Welimada; andthere is no reason why Thevapalan could not have said so. But ifthere had been a seizure, Thevapalan could not have allegeddelivery without running the risk of contradiction by those sellingagents. It seems to me therefore that, intrinsically, Thevapalan’saffidavit cannot be relied on, particularly because if the 2ndrespondent had threatened cancellation of the Lake House agency,an affidavit by him, contradicting her, might have jeopardized theinterests of Jayasundere and the Lake House agent.
I hold that the 2nd respondent did seize 450 copies of the"Yukthiya" on 10.10.92; that she did so while purporting to exerciseher functions, and while acting under colour of her office, asMayoress of the Nuwara Eiiya Municipal Council. The seizure wastherefore by executive or administrative action. I further hold that hermotive was to discourage an anti-Government newspaper, forpolitical ends.
The seizure directly prevented the publication of one issue of the“Yukthiya”, not entirely but in just a small part of Sri Lanka; andrelated to only 450 copies of the newspaper. I hold that the freedomof speech and expression, including publication, of the Editor andProprietor was thereby abridged, even though not totally denied. InRatnasara Thero v. Udugampola 0) the seizure of 20,000 pamphletswas held to be a serious violation of the freedom of speech andexpression, including publication, which called for the award ofsubstantial damages; Rs. 10,000/- was awarded, which was perhapsno more than the value of the pamphlets.
In my view the gravity of an infringement can only be determinedby a deeper scrutiny of its context.
While infringements of Article 14(1) (a) may sometimes have to beviewed in isolation, they often do involve other factors, such as denialof equal treatment or political discrimination violative of Article 12.Suppressing freedom of speech and expression, includingpublication, whether by preventing a newspaper being published orotherwise, would be graver if motivated either by a desire to benefit arival or by political antagonism. The facts that the "Yukthiya" was ananti-Government newspaper, and that the 2nd respondent threatenedcancellation of the Lake House newspaper agency, are thereforerelevant.
The infringement of Article 14(1) (a), by executive or administrativeaction, can take many forms, and may be direct or indirect; theexclusion of anti-Government news and views in newspapers ownedor controlled by the Government, particularly when it amounts to adenial of equal treatment or discrimination because of politicalopinion (of Article 12), would be as much an infringement as thesuppression (by force or otherwise) of such news and views innewspapers independent of the Government. The infringement in thiscase was in the latter category, and in my opinion was more serious.The right to support or to criticise governments and political parties,policies and programmes is fundamental to the democratic way oflife; the freedom of speech and expression is one “which cannot bedenied without violating those fundamental principles of liberty andjustice which lie at the base of all civil and political institutions”; anddemocracy requires not merely that dissent be tolerated, but that itbe encouraged (De Jonge v. Oregon (2), Amaratunga v. Sirimal(3),Wijeratne v, Perera !4)and Pieris v. A. G.(s).)
Another aggravating factor was that the 2nd respondent attemptedto use the power of the Lake House newspapers to reinforce herefforts to discourage the publication and distribution of the“Yukthiya”. Under the Associated Newspapers of Ceylon Ltd.(Special Provisions) Law, No. 28 of 1973, 75% of the shareholding ofthe company is vested in the Government, which is thus effectively incontrol of the company’s newspapers. Thus the 2nd respondent notonly infringed the petitioners’ rights directly, but aggravated herconduct by threatening also to procure an improper exercise of thepowers of the Government.
Here, those powers were not actually used. But it is clear that inseizing the “Yukthiya” the 2nd respondent was not only influenced bythe fact that it was an anti-Government newspaper, but also by the
desire to promote the expression of views politically favoured by her;her threat to cancel the Lake House newspaper agency wouldundoubtedly have seemed very real to Thevapalan, and thereforequite sufficient to inhibit lawful resistance – particularly as the stallitself belonged to the Municipal Council of which she was theMayoress.
These are circumstances which aggravate the infringement. Itwould not be right to assess compensation at a few thousand rupees,simply because the newspaper was sold for seven rupees a copy;that would only be the pecuniary loss caused by the violation of thepetitioners’ rights of property under ordinary law. We are hereconcerned with a fundamental right, which not only transcendsproperty rights but which is guaranteed by the Constitution; and withan infringement which darkens the climate of freedom in which thepeaceful clash of ideas and the exchange of information must takeplace in a democratic society. Compensation must therefore bemeasured by the yardstick of liberty, and not weighed in the scales ofcommerce.
The seizure was thus a grave, deliberate and unprovokedinfringement, and not one which occurred in a sudden emergency orat a time of public disorder, or through an error of judgment in aborderline case. Having regard to awards in Amaratunga v. Sirimal,Wijeratne v. Perera, and Pieris v. A. G., I hold that the petitioners areentitled to compensation in a sum of Rs. 100,000/-. In thecircumstances, it is neither just nor equitable to order the State or theMunicipal Council to pay that compensation. I direct the 2ndrespondent to pay the petitioners compensation in a sum ofRs. 100,000/- together with costs in a sum of Rs. 10,000/-.
DHEERARATNE, J. -1 agree.
WADUGODAPITIYA, J. -1 agree.