007-SLLR-SLLR-1983-1-FERNANDO-v.-ATTORNEY-GENERAL-AND-ANOTHER.pdf
I Sri Lanka Law Reports
[1983] 1 SriLR,
374
FERNANDO
v.
ATTORNEY GENERAL AND ANOTHER
SUPREME. COURT,
SAMARAKOON, C.J.,
WANASUNDERA, J.,'
AND VICTOR PERERA, J.
s.c. application. no. 2 of 1983?.,
FEBRUARY 24 AND 25, 1983.
.-Violation of.Fundamental Rights – Articles 10, It, .13.(1). (b) of the. Constitution – Section 45 of the ReferendumAct No. 7. of 1981 – Section 77(1) and (3) of the PoliceOrdinance.■
The. petitioner, sought a declaration stating'£hfct the Respondents (the police) violated his.fundamental rights of freedom of thought. andconscience, subjected him to cruel, inhuman anddegrading treatment and punishment, illegally
■Fernando v. Attorney General
375
SC'
arrested him and did not inform him of the reason,for such arrest and violated his fundamental rightof freedom of speech. He further stated that at thetime of his arrest he was attending a peacefulassembly and one day fa3t to protest against thedetention of three Christian clergymen, a doctor, aUniversity lecturer and his wife.
The Petitioner also stated that though they_planned to go in procession to the premises of theYoung Men's Hindu Association, on being warned bythe Police they decided that the' fast be staged atthe church premises.
The respondents stated that the petitioner andOthers were members of an illegal procession on theHorowpatana Road and that when action was taken todisperse this procession violence erupted and,therefore, these people, including the petitionerwere taken into custody and produced before theMagistrate.
The main questions were,
(a) whether there was a procession?
if so was it on the road to Horowpatana?
was this an illegal procession ?
Whether the police had rights and powers toact in the way they acted ?
HELD
(1) There was a procession which entered theHOrowpatana Highway and proceeded somedistance before it was blocked by a posse ofpoliceman. Under Section 45 of the ReferendumAct No.7 of 1981 and Section 77.(3) of' the
Police Ordinance,it was- an illegal procession.
i
■ (2'1 The police had the power to act in the way
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[1983] 1 Sri LR.
376
they did and . it does not. matter if theypurported to do it in reference to the wrongprovisions of law.
Application under Article 126 of theConstitution.
Cases referred to:
_(Vijaya Kumaranatunga vs. G. V.P.Samarasinghe -(1983)
V.S.a. Pullenayagaar withS.C. Chandra Hasan*
S. Perinpanayagam* tl.V. Vi vekanandan,
Hiss. H. Kanapathipillai t Miss. D. Wijestmdera? and'Miss. N. Fernando for petitioner.
Upawansa Yapae• Senior State Counsel with
C.R. de Silva, State Counsel for Attorney-General.
Cur.adv.vult.
March 16, 1983.
SAMARAKOOiM, C. J.,
The Petitioner Dr. S.N.Fernando complainsthat the 2nd, 3rd and 4th Respondents have violatedhis fundamental rights:
of freedom of thought andconscience^declared, recognised and guranteed underArticle 10 of the Constitution.
not to be subject to –
degrading treatment,
cruel treatment, both declared, recog-nised and guranteed under Article 11 ofthe Constitution;
(i) not to be arrested except according to
procedure established by lav', and(ii) when arrested to be informed of thereasons for his arrest both declared,recognised and guranteed under Article-13(1) of the Constitution;
Fernando v. Attorney General (Samarakoon, C. J.)
377
. SC
of freedom of peaceful assembly, declared,recognised and guaranteed under Article 14(1) of the Constitution.
The Petitioner is a Registered Medical Practitionerattached to the Base Hospital, Vavuniya since 1967.He is a citizen of Sri Lanka. The 2nd, 3rd and 4thRespondents are Police Officers attached to thePolice Station, Vavuniya. At the relevant time theArmy held three Christian Clergymen, a Doctor, aUniversity Lecturer and his wife in detention inthe Army Camp. They had been arrested under theprovisions of the Prevention of Terrorism Act. Suchdetention led to protests from the public in placesin the Northern Province. Vavuniya was one suchplace. The Petitioner states that on 15-12-82 at’about 9.35 a.m. he arrived at the Rambaikulam St.Anthony's Church to join in a one day fastorganised by the Sudhananda Young Men's HinduAssociation of Vavuniya, the Gandiyan Organisationand other religious bodies to protest against thecontinued detention of the priests and the otherdetainees. Dr. Rajasunderam who was the OrganisingSecretary of the Gandiyan Society was the organiserof the fast. The arrangement was that the parti-cipants should gather at the said church at . 9.00a.m. and thereafter go in procession to thepremises of the Young Men’s Hindu Association tostage the fast. The Petitioner became aware thatmorning that Dr Rajasunderam had been summoned tothe Police Station by the 2nd Respondent and hadbeen informed that the proposed procession wouldnot be permitted. Dr Rajasunderam discussed thiswith the others on his return to the Churchpremises and after discussion it was decided thatthe fast should be staged at the Church premises.The participants then squatted on the Churchcompound and the lawn facing the gate. The fastthen commenced and devotional songs were beingsung. The Petitioner was seated on the lawn. TheAssistant Superintendent of Police,the Headquarters
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[1983J1 Sri LR.
Inspector and other armed – police personnel werestanding on the road and the fastwent on
peacefully. At about 10.45 a.m. the 2nd Respondentcame to the Church in a jeep and got down at theentrance. Shortly thereafter, without any warningat all, the 3rd Respondent and other policemen"suddenly came into the Church compound, batoncharging, assaulting, kicking and trampling theparticipants who were peacefully seated in theChurch compound". He heard gun shots and tear gasshells landed in the compound. Women and childrenwere assaulted and they took shelter inside theChurch. The Petitioner says that he too went insidethe Church. When he was standing by the altar the3rd Respondent, on seeing him, came running towardshim uttering abuse, assaulted him with a baton,dragged him to the road and put him into the policejeep. He was assaulted and abused by the 4thRespondent ih the jeep and driven to the PoliceStation where also he was assaulted. Late in the.evening he with eight others were produced beforethe Acting Magistrate and released on bail. This inshort is the case of the Petitioner as narrated byhim in the petition and affidavit. The Petitionerseeks a declaration that the 2nd to 4th Respon-dents –
violated his fundamental right of freedomof thought and conscience",
subjected him to crueL, inhuman anddegrading treatment and punishment,
illegally arrested him and did not informhim of the reason for such arrest, –
violated his fundamental right of freedomof speech.
The Respondents deny these allegations. Theystate that the Petitioner and others were membersot an illegal procession on the Horowpatana Roadslid that when action was taken to disperse thisprocession violence erupted. The oolice were pelted
' SC Fernando v. Attorney General (Samarakoon, C. J. 'f..379 .
» '* »
~— ■ I ■
with stones. One policeman was injured and twojeeps damaged. Tear gas was thrown in the processand several people, including the Petitioner, werearrested and produced before the Magistrate.
Counsel for the Petitioner characterised thisversion of the Respondents' as completely false. Hecontended that the gathering inside ‘ the Churchcompound was a peaceful assembly and'such assemblywas attacked by the police for no rhyme or reasonand without any right or power to do -so.
The first question I have to decide is whetherthere was a procession and if so., was it on theroad to Horawpatana? There is no doubt that theprime object of those who gathered in the Churchcompound was to go in procession along the highwayto, the Young Men's Hindu Association premises. Thisis admitted by the Petitioner and Dr. Rajasunderam.The Doctor was told this could not be permitted. Inview of that ban the Doctor states the peoplesquatted peacefully iu the compound and began thefast. They state that no one squatted beyond theentrance to the Church.. The Respondents state – thatat about 10.00 a.ra. the procession entered thehighway from the Church compound and it was blockedby the police. The people then squatted on theroad. This is denied by the Petitioner and Dr.Rajasunderam. They would have us believe that allintentions to go in procession had been abandoned,the fast was in fact commenced at the. Churcjipremises andthe participantswere .seated
peacefully within the Church premises. No attemptwhatsoever was made, they state,toget a
procession moving. It is here that the statement of.Rev. Alban Rajasingham, Parish Priest of St.Anthony's – Church becomes relevant. It throwsconsiderable light on. the controversy and ^venCounsel for the Petitioner sought to rely on it toprove that those within the Church premises whowere baton – charged were members of a peacefulassembly.. The relevant portion of this statement(3R3) reads as follows:-
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[1983] 1 Sri LR.
"Today the managing Committee of the,Hindu Youth Front of Vavuniya decided to havea procession and to proceed to the HinduSociety hall at Vavuniya to fast as a mark ofprotest against the arrest of the members ofthe clergy and others by security forces underthe terrorist act. Permission was granted by' the church to assemble in the church premises.Today at about 9.00 a.m. when I was at thechurch some people assembled inside the churchpremises and they were getting ready to leavethe church premises in a procession. As far asI know Dr. Rajasunderam was the chieforganiser for the fast and he too was presentby that time H.Q.I. Vavuniya came and told Dr.Rajasunderam that S.P. wanted to speak to him.Dr. Rajasunderam accompained H.Q.I. Vavuniya.Little later Dr. Rajasunderam came to thechurch. At the same time a reinforcement ofPolice Officers came there and stood on theroad opposite the church. When the processionwas about to leave the church premises, thePolice warned the members in the precessionnot to get put to go in a procession. Inspiteof the Police warning the members in theprocession tried to get out and when thePolice Officers prevented them in going' in • aprocession, most of the members in theprocession sat on the ground. I went up to thechurch and sat on the stairs leading to thechurch."
It is clear that from 9.00 a.m. the assembledpersons were making ready to leave the church in aprocession. When the procession was about to leavethe premises the police officers who were standingon the road opposite the Church warned them not toget out. Inspite of the warning they tried to getout end'the police blocked them. They then squattedon the ground. This gives the lie to the story ofthe Petitioner and his witnesses that no attempt
SCFernando v. Attorney General . (Samarakoon, C. J.l381
was made to get out of the Church premises and.that, on the contrary, all intentions of going inprocession had been abandoned on Dr. Rajasunderam'sreturn from the Police Station. This statement ofthe priest compels me to reject the version of thePetitioner and his witnesses and to accept theversion of the Police. I accept the Police versionthat the head of the procession enteredthe
Horowpatana Highway and proceeded some distance,before it was blocked by a posse of policemen. Theythen squatted on the highway and the Church-,compound and were so seated for about an hour tillabout 11.00 a.m. with no interference from thePolice. At 11.00 a.m. they made another attempt tocontinue the procession despite warnings from theHeadquarters Inspector. Then tear gas was used todisperse then.The processionists then pelted stonesat the Police and caused injury to one policemanand damaged 2 jeeps parked on the highway. ThePolice then went into the Church premises andarrested the Petitioner and some others who theysay were organisers. A report made by the AssistantSuperintendent of Police (2R4) to the Superin-tendent of Police (2nd Respondent) on 16-12-82 andthe entry made by the Superintendent of Police(2R2) in the Officers' Visit Book at 12.15 p.m. on15-12-82 (the day of the incident) corroborate the .version of the 3rd and 4th Respondents. When – theSuperintendent of Police visited the scene he foundstones, placards and slippers strewn on the roadand noticed the damage on the jeeps. I am unable toaccept the version of the Petitioner and hiswitnesses and therefore reject them. Counsel forthe Petitioner argued that in any event the Policehad no right or power to enter the Church premisesand arrest persons within such premises as those inthe Church compound comprised a peaceful assembly.
I cannot accept this. There is no doubt that theywere all part of the procession, the, head of theprocession was on the highway and the 'rear of itwas in the Church compound. They were part and
382 .Sri Lenka Law Reports[1983] 1 Sri L.R.
parcel of one procession. Hie tail cannot disownthe head when it suits it.
Has-"this’an illegal procession? Section 45(a) ofthe Referendum Act, No.7 of 1981 reads thus-
rt45. No person –
(a) shall, at any time from the date ofpublication of the Proclamation in respect ofa Referendum and ending on the day. immediatelyfollowing the date on which the result of thepoll taken at such Referendum is declared,conduct, hold or take part in any procession,other than a procession on May 1 in the year,or any procession for religious or socialpurposes.
Every person who contravenes any of thepreceding provisions of this section shall beguilty of an offence and shall, on convictionafter•summary trial before a Magistrate, beliable to a fine not exceeding one hundredrupees, or to imprisonment of either descrip-tion for a term not exceeding one month, or toboth such fine and imprisonment."
A-Referendum had been declared and polling wasto' take place on 22-12-1982. The procession wastherfore ain illegal one;
•r.v Counsel however contended that this case mustbe judged solely on-the basis that the Police acted-on'cthe basis of Emergency Regulations and that thepersons arrested were charged for committing anoffeiice under section 12(1) of the Emergency(Miscellaneous Provisions and Powers) RegulationPart 3-of 1982 published-in Gazette No. 219/21 ofNovember 20,1982. Admittedly those Regulations
ware not in force at the time and the charge Was tothat extent incorrect; But that does not mean thatthe procession was legal. It was illegal in terms
sc
Fernando v. Attorney. General (Samarakoon, C. J.)
383
of section 45 of the Referendum Act, It was alsoillegal because no notice of it bad been given' tothe Police in terms of section 77(1) of the PoliceOrdinance (Cap.53) and the organisers were •therebyguilty of an offence (section 77(3)).These sectionswere quoted by the Assistant Superintendent ofPolice in his report . to the Superintendent ofPolice (2R4) on 16-12-1982. The error is a , bonafide one and does not by any means vitiateproceedings or by any stretch of imagination makethe procession other than an illegal one. ThePolice had the power to act in the way they did andit does not matter if they purported to do it inreference to the wrong provisions of lav/. (VijayaKumaranatunga vs .G.V.P.Ssaarasinghe et al S.C121/82 – Minutes of 3-2-1983).
There are the further allegations of violationof freedom of.thought and conscience, of cruel,inhuman and degrading punishment. These were notsubstantiated and not pursued in the course of theargument..In regard to the allegation of failure toinform the Petitipner of the reason for.his arrestCounsel pointed to the fact that the reason givenwas that of participation in a procession madeillegal by an Emergency Regulation which was not inforce at the time. The Petitioner was informed thathe was part of an illegal procession and that issufficient reason for the arrest. The Police do nothave to quote chapter and verse from statutes andlegal literature to justify the arrest. There is noobligation on the Police to ' quote the lawapplicable.
I dismiss the petition with costs.
WANASUNDERA, J. I agree.
VICTOR PERERA, J. I agree.
Application dismissed.