031-SLLR-SLLR-1993-2-EKANAYAKE-v.-GUNATILLEKE-SUPERINTENDENT-OF-POLICE-MAHO-AND-OTHERS.pdf
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Ekanayake. v. Gunatilleke, Superintendent of Police, Maho and Others
(Wijetunga, J.)
371
EKANAYAKE
v.GUNATILLEKE, SUPERINTENDENT OF POLICE,MAHO AND OTHERS
SUPREME COURT.
AMERASINGHE, J.
WADUGODAPITIYA, J. ANDWIJETUNGA, J.
S. C. APPLICATION NO. 1007/92.
SEPTEMBER 24, 1993.
Fundamental rights – Arrest – No reason given – Detention Order – Freedomof Association – Articles 13 (1) & (2) and 14 (1) (c) of the Constitution.
On account of political activities in support of the SLFP, the 1st respondent causedthe arrest and detention of the petitioner. No reason for the arrest are givenand the detention order was not served on him. He was threatened and obstructedfrom carrying on his political activities by the 1st respondent.
Held :
1. The arrest and detention of the petitioner were in violation of Article 13(1) & (2) of the Constitution as no reason was given for the arrest and theDetention Order was not served on him. He was prevented from working for theSLFP and thus there was an infringement of his freedom of association by theconduct of the 1st respondent.
372
Sri Lanka Law Reports
[1993] 2 Sri L.R.
Per Wijetunga, J.
“ A citizens right to join any political party of his choice, which is anecessary concomitant of the freedom of association guaranted by Article 14(1) (c), would be meaningless unless he has the freedom to participate fullyin the lawful activities of such political party “.
APPLICATION for relief for infringement of Fundamental Rights.
S. L Gunasekera, for the petitioner.
A Meddegoda, S.S.C. for 2nd respondent.
Cur. adv. vult.
November 16, 1993.
WIJETUNGA, J.
The petitioner has since February, 1988 been the Organizer of theSri Lanka Freedom Party (SLFP) for the electoral division of Yapahuwa.He was a candidate of the said party for the electoral district ofKurunegala at the Parliamentary General Election of 1989. He statesthat at the Presidential Election of 1988, the majority of voters ofthe electoral division of Yapahuwa voted for the SLFP candidate, Mrs.Sirimavo R. D. Bandaranaike. The 1st respondent has been theAssistant Superintendent of Police, Maho, from January, 1989 and,since early 1992, the Superintendent of Police, Maho. The electoraldivision of Yapahuwa is situated within the police division of Maho,which is under the direction and control of the 1st respondent.
On 30.8.92, at about 4 p.m., the petitioner was travelling in a jeepfrom Wariyapola towards Kurunegala in the company of one IvorMalagama, the Organizer of the SLFP for the electoral division ofHiriyala, after attending a meeting of the SLFP at Wariyapola. Thejeep was stopped at Hanhamuna Junction by Sub Inspector Rupasingheof the Maho police station, together with some other police officers,who allegedly were acting on the instruction of the 1st respondentand the petitioner was arrested by the said Sub Inspector withouta warrant and detained at the Maho police station. The petitionerclaims that though he was informed by Sub Inspector Rupasinghethat he was arrested on the instructions of the 1st respondent, hewas not informed of the reason for his arrest. About 10 minutes afterthe petitioner was brought to the Maho police station, the 1st respond-ent arrived there and told the petitioner that he had won theYapahuwa seat at the Presidential Election of 1988 by the use ofthuggery, while the 1st respondent was at Negombo, that even afterthe 1st respondent assumed duties at Maho, the petitioner washolding meetings and thumbing his nose at him ('koka pennanawa'),
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Ekanayake, v. Cunatilleke, Superintendent of Police, Maho and Others
(Wijetunga, J.)
373
that he would not permit him to continue his political activities, thathis political activities were over and that he would initially sign adetention order for 30 days and thereafter send the petitioner toBoosa. The petitioner was thereafter locked up in the cell at the Mahopolice station on the orders of the 1st respondent but he was neitherissued with nor shown any detention order. About 30 days later, thepetitioner was taken before the Magistrate, Maho, who informed himthat he- was being returned to police custody. He was thus detainedat the Maho police station until 19.11.92, when he was once againtaken before the Magistrate, Maho and released unconditionally.
The petitioner has not been charged with the commission of anyoffence under any law even as at the date of this application. Hestates that he has never committed, nor attempted nor prepared tocommit any offence nor been in any way concerned in the commis-sion, attempted commission or preparation to commit any offenceunder the Emergency Regulations or any other law and thatthere did not exist any lawful reason for his aforesaid arrest and/or detention.
The petitioner alleges that the 1st respondent is, and has beenat all times material to this case, a strong supporter of the UnitedNational Party (UNP) which has always been strongly opposed tothe SLFP. Shortly after the 1st respondent was appointed AssistantSuperintendent of Police, Maho, in January, 1989, he summoned thepetitioner to a meeting, but the petitioner was unable to attend thesaid meeting as he was busy with the Parliamentary General Electionscheduled to be held on 15th February, 1989. He, therefore, sentRev. Hammillewe Saranapala Thero, the Secretary of the BhikkuOrganization and H. M. S. Mawathagama, the Secretary of theCentral Organization of the SLFP for the electoral division of Yapahuwato represent him. At the said meeting, the 1st respondent threatenedthe said Rev. Saranapala Thero and Mawathagama and told themthat all political activities being conducted from Jayanthi Vihara (thetemple of Saranapala Thero) should cease and that if such activitiesdid not cease, the temple will become a graveyard and be reducedto ashes, that the hoisting of blue flags, the pasting of notices andthe propaganda activities of the SLFP were forbidden, that if evena stone was flung at a flag, poster or office of the UNP, the templewould be destroyed, that he did not expect to see any politicalactivities being conducted 'above' those of the UNP and that if anysuch activities were carried out, there would be disappearances.
374
Sri Lanka Law Reports
[1993] 2SriLR.
Rev. Saranapala Thero and Mawathagama reported the aforesaidthreats made by the 1st respondent to the petitioner and Mawathagamamade a complaint in that regard to the DIG of the North WesternProvince by letter dated 26.1.89, consequent to which the SeniorSuperintendent of Police, Kurunegala, by letter dated 3.2.89summoned Mawathagama for an inquiry on 8.2.89. Mawathagamaand Rev. Saranapala Thero attended the said inquiry at which theirstatements were recorded but nothing further was heard by them orthe petitioner about the said inquiry. The petitioner has producedcopies of the said letters dated 26.1.89 and 3.2.89 marked P1 andP2, respectively. He has also produced an affidavit from Mawathagamamarked P3.
The petitioner states that notwithstanding the aforesaid threats heldout by the 1st respondent, he continued to hold propaganda meetingsand to engage in other lawful political activities to advance the causeof the SLFP within and outside the electoral division of Yapahuwa.In the aforesaid circumstances, the petitioner claims that his arrestand detention were illegal and mala fide and states that he was soarrested and detained only because of his association with the othermembers of the SLFP and his political affiliation to and the lawfulactivities on behalf of the SLFP.
At the time of the petitioner's arrest on 30.8.92, he was due toget married to a Miss Ranjani Ketawala of Kurunegala at HotelSitumedura on 9.9.92, and the invitations for the wedding had alreadybeen sent out. He has produced one such invitation as a specimenmarked P4. Consequent to the petitioner's arrest and detention, thewedding had to be postponed sine die and the petitioner and hisfamily as well as Miss Ranjani Ketawala and her family suffered muchpain of mind and humiliation in consequence thereof.
The petitioner seeks a declaration that his fundamental rightsguaranteed by Articles 13(1), 13(2) and 14(1) (c) of the Constitutionhave been infringed by executive or administrative action and claimscompensation in respect thereof.
When this matter was taken up for hearing on 5.7.93, learnedcounsel for the petitioner raised a preliminary objection in regard tonon-compliance by the 1st respondent with the Rules of the SupremeCourt. By our order dated 26.7.93, we upheld the said objection andmade order rejecting the documents filed by the 1st respondent andholding that he was not entitled to be heard in these proceedings.
SC Ekanayake, v. Gunatilleke, Superintendent of Police, Maho and Others
(Wijetunga, J.)375
The resulting position, therefore, is that there is no material placedby the 1st respondent before this Court in opposition to the applicationof the petitioner.
What the Court has consequently to determine is whether thematerial furnished by the petitioner establishes that his arrest wasin violation of Article 13 (1), his custody and detention were in violationof Article 13 (2) and whether there was a violation of the petitioner'sfundamental right of the freedom of association guaranteed by Article14 (1) (c) of the Constitution ; and whether such infringements wereby the action of the 1st respondent.
That the petitioner was arrested on the instructions of the 1strespondent is established by the conduct of the 1st respondent inarriving at the Maho police station within about 10 minutes of thepetitioner being brought there under arrest and more particularly, bywhat he told the petitioner immediately thereafter (already referredto above).
It is the petitioner's position that Sub Inspector Rupasinghearrested him without a warrant and gave him no reason for sucharrest. The petitioner further states that he was released uncondi-tionally by the Magistrate on 19.11.92 and that he has not beencharged with the commission of any offence. The petitioner hasemphatically denied that he has committed or attempted to commitor prepared to commit or been in any way concerned in thecommission, attempted commission or preparation to commit anyoffence under the Emergency Regulations or any other law. Inthe absence of material to the contrary justifying the arrest of thepetitioner in the manner aforesaid, his arrest is violative of Article13 (1).
The petitioner states that he was locked up in the cell at the Mahopolice station on the orders of the 1st respondent, who by then hadtold him that he would initially sign a detention order for 30 days,but no such detention order was issued or shown to- him. The factof his being produced before the Magistrate after 30 days and beingfurther detained thereafter does not in any event validate the initialdetention which is unsupported before this Court by a valid detentionorder. His detention too, therefore, infringes Article 12 (2).
The petitioner further alleges that there had been an infringementof his freedom of association by the conduct of the 1st respondent.A citizen's right to join any political party of his choice, which is anecessary concomitant of the freedom of association guaranteed tohim by Article 14 (1) (c), would be meaningless unless he has the
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freedom to participate fully in the lawful activities of such politicalparty. The petitioner states that the 1st respondent had in no uncertainterms told him that he would not permit him to continue hislegitimate political activities. The letters (P1) and (P2), together withthe affidavit of Mawathagama (P3), support the petitioner's allegationthat the 1st respondent, even when he was Assistant Superintendentof Police, Maho, had threatened the petitioner's representatives,against conducting the political activities of the SLFP in that area.He had categorically spelt out the dire consequences that wouldfollow if they did not refrain from conducting such political activities.But, the petitioner states that he continued to hold propagandameetings and engage in other lawful political activities to advancethe cause of the SLFP. The arrest of the petitioner on the day inquestion was while he was returning from a meeting of the SLFPat Wariyapola, in the company of the Organizer of the SLFP for theelectoral division of Hiriyala. The petitioner further claims that the 1strespondent, who arrived at the Maho police station within about 10minutes of his being brought there under arrest, threatened himagainst continuing his political activities by holding meetings, etc. Thatit was no idle threat is amply demonstrated by what followed. Therewas thus a clear violation by the 1st respondent of the petitioner'sfreedom of association guaranteed by Article 14 (1) (c) of theConstitution.
On the question of compensation, one cannot ignore that, byreason of the petitioner's arrest and detention, his marriage, forwhich invitations had already been sent out and the necessaryarrangements for the reception made, had to be postponed sine die.He quite justifiably complains of the pain of mind suffered by himand his family, as well as the bride-to-be and her family.
The period of detention too had been over 80 days, at the endof which the petitioner states he was released unconditionally. Whyhe was so detained remains unexplained.
Hence, in respect of the infringement of the fundamental rightsof the petitioner under Articles 13 (1), 13 (2) and 14 (1) (c) asaforesaid, I award him compensation in a sum of Rs. 65,000/-, ofwhich a sum of Rs. 15,000/- is payable by the 1st respondent andthe balance sum of Rs. 50,000/- payable by the State. The petitionerwill also be entitled to a sum of Rs. 5,000/- as costs from the State.
AMERASINGHE, J. – I agree.
WADUGODAPITIYA, J. – agree.
Relief granted.
Compensation Ordered.