034-SLLR-SLLR-1997-V-1-GUNAWARDENA-AND-ANOTHER-v.-PATHIRANA-O.-I.-C.-POLICE-STATION-ELPITIYA-A.pdf
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GUNAWARDENA AND ANOTHER
v.
PATHIRANA, O.I.C., POLICE STATION, ELPITIYA AND OTHERS
SUPREME COURT.
FERNANDO, J.,
WIJETUNGA.J. ANDANANDACOOMARASWAMY, J.
S.C. APPLICATION 519/95JANUARY 13,1997.
Fundamental Rights – Unlawful seizure of a booklet – Illegal arrest – Articles 13( 1)and 14(1) (a) of the Constitution – Assessment of Compensation.
The 2nd petitioner who earned her living by selling lottery tickets had in herpossession a booklet lent to her by the 1st petitioner titled 'Ratata Mokada WennaYanne? Menna Aththa* which had been compiled and published by the UnitedNational Party. Both petitioners were active supporters of the U.N.P. The bookletcontained extracts of speeches made by members of the opposition in Parliamentcritical of the performance of the new government elected in 1994. On acomplaint made by the 3rd respondent a Minister of the Southern ProvincialCouncil that a woman at a lottery ticket counter was criticising the Governmentpqace process and distributing this aforesaid booklet, the 1st and 2nd respondentpolice officers left for investigations, but without obtaining a copy of the bookletwhich was available with the 3rd respondent and examining its contents. Theytook the petitioner into custody together with the booklet and detained them at thepolice station overnight. The next day the 1st petitioner^ statement was recordedafter which both petitioners were produced before a Magistrate, charged underSection 118 of the Penal Code. At the time of the arrest the 2nd respondentalleged that the petitioners were distributing illegal and obscene literature.
Held:
The booklet contained nothing more than political criticism of theGovernment; there was no justification for the arrest of the petitioners particularlywithout prior examination of the booklet; nor was there any justification fordetaining the petitioners at the police station; hence the petitioners' rights underArticles 13(1) and 14(1) (a) have been infringed.
In determining the amount of compensation which each petitioner is entitledthe Court will take account of the numerous decisions of the Court stressing theimportance of the freedom of speech, the right to criticise governments andpolitical parties and the importance of dissent as well as the directions given bythe Court to the Inspector General of Police to instruct his officers regarding thoserights and freedoms. The amount of compensation must not be restricted to theproprietary loss or damage caused.
Cases referred to:
Attorney-General v. Sinwardena (1978, 79,80) 1 Sri L.R. 377.
Attorney-General v. Nadesan (1978, 79,80) 1 Sri L.R. 339.
Faiz v. Attorney-General {1995) 1 Sri L.R. 372.383.
Tennakoon v. De Silva. 1997 1 Sri L.R. 16.
Joseph Perera v. Attorney-General(1992) 1 Sri L.R. 199.
Ekanayake v. Herath Banda, S.C. Application 25/91 S.C. Minutes18 December. 1991.
Amaratunga v. SirimaH 1993) 1 Sri L.R. 264.
De Jonge v. Oregon – 1937 – 299 US. 353.
Wijeratne v. Perera S.C. Application 379/93 S.C. Minutes 2 March 1994.
West Virginia State Board of Education v>. Barbette (1943) 319 US 624,641.
Peiris v. Attorney-General (1994) 1 Sri L.R. 1.
Deshapriya v. Municipal Council, Nuwara Eliya (1995) 1 Sri L.R. 362.
Ratnasara Them v. Udugampola (1983) 1 Sri L.R. 461.
Ratnapala v. Dharmasih (1993) 1 Sri L.R. 224.
Hulangamuwa v. Weerasinghe, S.C. Application No. 661/95 S.C. Minutes22 July 1996.
Abasin Banda v. Gunaratne (1995) 1 Sri L.R. 244,254.
Wickramabandu v. Herath (1990) 2 Sri L.R. 348.
Sirisena v. Perera (1991) 2 Sri L.R, 97.
APPLICATION for relief for infringement of fundamental rights.
Uput Jayasuriya for petitioner.
A. R. C. Perera, D.S.G. for 1st, 2nd, 4th and 5th respondents.
Cur. adv. vuft.
February 13.1997.
FERNANDO. J.
The two petitioners complain that their fundamental rights underArticles 12(2), 13(1) and 14(1) (a) were infringed by the ElpitiyaPolice who seized a booklet entitled “Ratata Mokada WannaYanne? Menna Aththa!” and thereafter arrested them.
When this application was taken up for hearing, the learned DSG,who appeared for the 1st. 2nd, 4th and 5th respondents, conceded
that there had been a violation of the 1st petitioner's fundamentalright under Article 13(1), and of the 2nd petitioner's fundamentalrights under Articles 13(1) and 14(1) (A). However, Counsel couldnot agree on the liability of the 1st, 2nd and 3rd respondents, and theamount of compensation which the petitioners should receive,and they were given time to make written submissions on thosematters. Although the infringements are now admitted, it isyet necessary to refer to the facts in order to determine the gravityof the infringements, the persons responsible, and the appropriaterelief.
FACTSThe 2nd petitioner earned her living by selling lottery tickets at alittle wooden counter in the Elpitiya town. According to the petitioners,at about 3,15 p.m. on 17.8.95, the 1st petitioner, a relative of the 2ndpetitioner, came to her counter. He took some lottery tickets from herfor sale, and lent her the booklet in question. Both were activesupporters of the United National Party, and the 2nd petitioner wasan advisor to a UNP branch in the Elpitiya electorate. The UNP wasresponsible for the compilation and publication of that booklet, which,it is not in dispute, consisted of several extracts from speeches madein Parliament by the Leader of the Opposition, and other OppositionMembers of Parliament, in the debate on the extension of theEmergency in May 1995. The petitioners aver that the "speeches hadmade a comparative analysis and a critical evaluation of thepromises given by the present Peoples Alliance regime during theirelection campaign in 1994, and how those promises have beenbreached thereafter. The current political issues … and the future ofthe country … have also been discussed”.
The respondents produced a certified copy (“2R1”) of a complaintmade to the Elpitiya Police, at 3.25 p.m. on the same day, by the 3rdrespondent, the provincial Minister of Food and Co-operatives of theSouthern Provincial Council. He had alleged that at a lottery ticketcounter belonging to one Abeywickrema, a woman was criticising theGovernment’s peace process while distributing a booklet entitled“Ratata Mokada Wenna Yanne? Menna Aththal”; that she had saidthat one Matarage of the UNP had asked her to give those bookletsfree to purchasers of lottery tickets; and that she had given him also abooklet. He understood that booklet to be against the Government'speace process, and he asked the Police to investigateAbeywickrema’s activities – whether they were likely to cause abreach of the peace – and thereafter to take action according to law.There is no statement, note, or record suggesting that the 3rdrespondent showed or handed his copy of the booklet to the Police,or that the Police asked for or examined it; and the respondents didnot produce that copy of the booklet.
The very next entry, after that complaint, was at 3.50 p.m. That wasby the 2nd respondent, a sub-inspector. He noted that on the ordersand advice of the Officer-in-Charge, the 1st respondent, he wassetting out, together with two constables, to investigate the complaintabout that booklet.
There are two versions as to what happened thereafter. Accordingto the petitioners, the 1st petitioner, hearing that the 2nd respondentand two constables had seized the booklet and were questioning the2nd petitioner at the ticket counter, rushed there and explained that itwas he who had left the booklet there and that it contained no illegalwritings. He asked the 2nd respondent not to harass the 2ndpetitioner and him. However, the 2nd respondent informed them thatthe 3rd respondent had made a complaint that the petitioners weredistributing illegal and obscene literature, and took them into custodytogether with the booklet. They were taken to the Police stationaround 4.30 p.m. The 2nd petitioner was released around 5.30 p.m.,after her statement had been recorded. The 1st petitioner wasproduced before the DMO at 6.30 p.m. and checked for consumptionof alcohol, although he said he had not taken any. He was thensearched, unsuccessfully, for any other literature. The 2nd petitionerwas then re-arrested and both were taken back to the Police Station.It was only the next morning, after being detained overnight, that the2nd respondent recorded the 1st petitioner’s statement. And onlythereafter were the petitioners produced before the ElpitiyaMagistrate, charged under section 118 of the Penal Code, andreleased on bail at 11.30 a.m.
In his affidavit, the 2nd respondent gives the following account:
“(a) I respectfully state subsequent to the recording of 2R1 onthe instructions of the 1st respondent, I proceeded for inquiryon 17.8.95 at 15.50 hrs.
Having visited the place where the 2nd petitioner wasengaged in sale of sweep tickets, I took into my custody thebook marked P1.
Whilst I was there, the 1st petitioner came in a drunken stateand was abusive of the President and the Government. I feareda major breach of the peach. Having informed him of thereasons for the arrest, I arrested him at 16.50 hrs.
Thereafter, I arrested the 2nd petitioner having explained thereasons for the arrest at 20.15 hrs. on 17.8.95 at the scene.
The 1st petitioner was produced before the District MedicalOfficer of the Elpitiya Hospital having issued a GHT and theDMO has stated that the 1st petitioner was smelling of liquor onexamination.
On 18.8.95, both the petitioners were produced on a *B"report under section 118 of the Penal Code before theMagistrate of Elpitiya and were released on bail by theMagistrate.*
The respondents have not produced the DMO’s report, thestatements made by the petitioners, or by any others, or anystatements or notes of inquiry relating to the seizure of the booklet,and the arrest and detention of the petitioners. However, on the samepage as the 3rd respondent’s complaint there appears, immediatelyafter the entry made by the 2nd respondent at 3.50 p.m., a part of theentry made by him, on his return, at 5.05 p.m. This records that inpursuance of the complaint 2R1 he went to the 2nd petitioner'scounter, where he questioned her and examined the booklet, whichhe found to consist of extracts from parliamentary speeches made
during the May 1995 Emergency debate. The inference is that he hadnot examined the booklet at all previously.
The petitioners had produced with their petition an uncertifiedcopy of the “B" report, the accuracy of which (as distinct from itsveracity) I must accept as it was not objected to or questioned by the2nd respondent in his affidavit. The “B" report contained severalstatements seriously inconsistent with that affidavit: it was stated, first,after referring to the complaint 2R1, that the 3rd respondent hadgiven the Police a copy of the booklet; second, that afterquestioning the 2nd petitioner, she had been arrested for furtherinvestigation, and that consequent to her statement they hadsearched for the 1st petitioner; third, that the 1st petitioner hadbeen arrested when he was found, drunk, at the Elpitiya bus*stand, giving members of the public a distorted version of thecontents of the booklet; and fourth, that they had information fromresidents of the town that the distribution of the booklets to thepublic and the distortion of facts were likely to cause a breach of thepeace.
extracts from speeches made in Parliament, in order to determinewhether its distribution and/or possession by citizen was likely toprovoke a breach of the peace, and if so, to seize the publication andarrest the citizen; in short, whether a citizen could be subject to anycriminal liability or penalty for possessing or publishing parliamentaryspeeches. Had the answer to that question been in the affirmative,then it would have become necessary for the Court to consider(in the light of decisions such as Attorney-General v. Siriwardena",and Attorney-General v. Nadesarr'-") to what extent it could examinethose extracts. But as the learned DSG conceded that the seizure ofthe booklet in question was in violation of Article 14(1) (a), and statedthat no criminal proceedings were beings taken against thepetitioners, it became unnecessary for us to deal with those issues.
It is necessary next to see whether, before the 2nd respondent setout to investigate the complaint 2R1, the 1st and the 2nd respondentshad at least examined the booklet. The entry which the 2ndrespondent made at 5,50 p.m. strongly suggests that he examined thebooklet only at the 2nd petitioner’s counter. The statement in the “B"report that the 3rd respondent had produced a copy is not only notevidence, but seems untrue: for if it had been produced, that wouldhave been recorded, and the 2nd respondent would have producedthat copy with his affidavit. However, this makes no difference in thecircumstances of this case. If the 1st and 2nd respondents did have acopy of the booklet, they should have perused if before starting aninvestigation, and that would have shown that there was no offence tobe investigated – as the DSG’s concession establishes. If they hadany doubt, they could have obtained appropriate advice beforeproceeding to interfere with the livelihood and the rights of citizens.On the other hand, if in fact they did not have a copy, it wasincumbent upon them to have called upon the 3rd respondent toproduce it, so that they could peruse it and decide whether anyinvestigation was justified. Thus – whether the police had a copy ofthe booklet before the 1st respondent directed the 2nd respondent toinvestigate but failed to peruse it, or whether they did not have a copybut failed to call for one – the inference remains the same, that the 1stand 2nd respondents acted with undue haste upon the 3rdrespondent's complaint, knowing that it related only to a politicaldispute, arising from political criticism of the Government.
I must now turn to the arrest of the 2nd petitioner. Although in hisaffidavit the 2nd respondent does not admit that she was arrestedthat afternoon and then released, but avers that she was arrestedonly much later, at 8.15 p.m., ‘at the scene", this is flatly contradictedby the ‘B" report which states that she was arrested before the1st petitioner. The petitioners' version that she was arrested, released,and then re-arrested, after the 1st petitioner had been taken back tothe 2nd petitioner's counter, is intrinsically far more probable. But thismakes little difference. There was no justification for her arrest thatafternoon, and even less for her arrest three hours later, whencontents of the booklet could have been fully scrutinized at leisure.
In regard to both petitioners, although the 2nd respondent claimsto have "informed” or "explained" “the reasons for the arrest”, hedoes not say what those reasons were. His affidavit thus fails torespond adequately to the detailed affidavit sworn by the petitioners.What is more, the "B” report says that the 2nd petitioner was arrestedfor further investigation, and thus contradicts any suggestion that shewas arrested because the booklet might possibly caused a breach ofthe peace. I find the petitioners' version that the 2nd respondent hadalleged that they were distributing illegal and obscene literature to bemore probable.
In regard to the arrest of the 1st petitioner, the 2nd respondent'sversion that he was arrested because he was drunk and abusive isunacceptable. First, the credibility of the 2nd respondent's affidavit isaffected by its inconsistencies with the “B" report. Second, there is noevidence whatever that the 2nd petitioner was drunk; the DMO'sreport was not produced, and even if I were to accept the 2ndrespondent’s averment as to its contents, that would only show thatthe 1st petitioner had consumed some alcohol. The State licensesplaces for the sale and consumption of liquor; and it is not an offenceeither to consume liquor, or to be in a public place after suchconsumption. Assuming that the 1st petitioner had consumed liquor,he did not become disentitled to protest, even vigorously, when the2nd respondent illegally seized his booklet which he had lent to the2nd petitioner. As for the allegation that the 1st petitioner had“abused" the President or the Government, there is no note,contemporaneous or otherwise, of that fact, let alone what that‘abuse" consisted of. And what is more, had there been any “abuse”of the President, it is most unlikely that it would have been omittedfrom the “B" report, as that abuse would have been relevant to thecharge under section 118 of the Penal Code, which was the onlycharge in that report; the absence of any such reference thereinleads to the conclusion that the 2nd respondent's version in hisaffidavit is no more than an after-thought. Even in his affidavit the 2ndrespondent merely asserts that the 1st petitioner was abusive, withoutany particulars. I cannot act upon his mere assertion that the 1stpetitioner was “abusive", as that is no more than his opinion;particulars were essential, as this Court is required to considerwhether, objectively, the 1st petitioner's words or conduct justifiedarrest under the relevant statutory provisions.
In view of the learned DSG's submission that the unlawful arrestwas “mitigated" by the fact that the petitioners were released “afteronly a few hours" detention, it is necessary to mention that the 2ndrespondent gave no explanation for the delay in producing thepetitioners before the Magistrate, and in recording the 1st petitioner'sstatement.
LIABILITY OF 1ST, 2ND AND 3RD RESPONDENTSThe 2nd respondent was directly responsible for the impugnedseizure and arrest. The decisions which he took were not on the spurof the moment, in a sudden emergency; he had time to consider, andif necessary to seek advice. He failed to ask the 3rd respondent forthe booklet. He did not ensure that the 1st petitioner's statement wasrecorded promptly. He did not explain why he arrested (or re-arrested) the 2nd petitioner at 8.15 p.m., virtually ensuring overnightdetention at the Police station.
Although the 1st respondent was not directly responsible, it was hewho ordered the “investigation" at the 2nd petitioner's ticket counter,without first perusing the contents of the booklet. Nor did he explainwhy the 2nd petitioner was arrested (or re-arrested) at 8.15 p.m., orwhy they were not produced before a Magistrate the same day. Evenaccepting that as Officer-in-charge he is not responsible foreverything that his subordinates did, yet this was an investigationwhich he himself had ordered, and in the absence of a satisfactoryexplanation, he must share the responsibility at least for whathappened after that arrest and that default.
It was the 3rd respondent’s complaint which resulted in theimpugned seizure and arrest. The 3rd respondent claims to have hada copy of the booklet, and could have satisfied himself about itscontents; and he has not tendered an affidavit suggesting why thepossession or distribution ol the booklet was wrongful. But evenassuming that he knew that, as learned Counsel for the petitionershas submitted, his complaint was "false and malicious” and intended“to stifle any criticism of the Government”, the petitioners have otherremedies, civil and criminal, in respect of any alleged false complaintor its consequences. Something more is required for liability in anapplication under Article 126: Faiz v. Attorney-General™, andTennakoon v. de SilvaiA and Counsel has not been able to draw ourattention to any other relevant factor. The 3rd respondent's complaintshows that what he requested was action according to law, and thereis no evidence that he, in any way, instigated or procured theimpugned seizure and arrest. The petitioners’ claim against himtherefore fails.
RELIEFIn deciding whether the petitioners are each entitled toRs. 100,000/- as compensation, as claimed by them, I must not fail totake account of the numerous decisions of this Court, stressing theimportance of the freedom of speech, the right to criticisegovernments and political parties, and the importance of dissent; ofthe degree of intrusiveness and undue haste which characterized theinfringements; of the direction given by this Court to the Inspector-General of Police, the 4th respondent, to instruct his officers torespect those rights and freedoms; and of the fact that the amount ofcompensation must not be restricted to the proprietary loss ordamage caused.
In Joseph Perera v. Attorney-Generallb), Sharvananda, CJ,observed in respect of the seizure of a pamphlet critical of theGovernment:
"It certainly contains expressions of dissent and criticismagainst Government. But freedom of speech and expressionwould be illusory if the Police can with impunity arrest anddetain a person if he does not obsequiously sing the praises ofthis government. The danger to a party in power is not the sameas rocking the security or sovereignty of the State. The Policeshould not be timorous to scent in every utterance criticising theGovernment, an attempt to incite disaffection against or tooverthrow the Government.”
The Court unanimously held that Emergency Regulation 28 -which required Police permission for the distribution of posters,handbills, and leaflets – made by the President was violative ofArticle 12(1). The majority held that the arrest of the three petitionerswas lawful, but awarded them Rs. 10,000/- each on account of theirexcessive detention:
”… there was a reasonable basis for the initial action of thearrest … This is not a case of the Police riding roughshod overthe rights of citizens. The Police action was bona fide and withinthe scope of their functions and the outcome of the case hasdepended on a legal issue …"
In Ekanayake v. Herath Bandam, a teenage student was awardedRs. 50,000/- compensation for the infringement of her fundamentalrights under Articles 11, 13(1) and 13(2). She was arrested becauseof alleged “anti-governmental subversive activity”, and I pointed outthat:
“the expression of views, which may be unpopular, obnoxious,distasteful or wrong is nevertheless within the ambit of freedomof speech and expression, provided of course there is noadvocacy of, or incitement to, violence or other illegal conduct… for dissent is inextricably woven into the fabric ofdemocracy."
That case involved a serious violation of Article 11, whichAmaratunga v. Sirimalm, did not. There the Police took actionbecause slogans were shouted against the Government in the courseof a “Jana Ghosha”, or noise protest, against the Government. The
petitioner was participating by banging a drum, which thePolice destroyed. For that violation of his fundamental right underArticle 14(1) (a) he was awarded Rs. 50,000/- as compensation,because:
“The right to support or to criticise Government and politicalparties policies and programmes, is fundamental to thedemocratic way of life, and the freedom of speech andexpression is one “which cannot be denied without violatingthose fundamental principles of liberty and justice which lie atthe base of all civil and political institutions" {De Jonge v.Oregon'*>)• This is not a borderline case, or a suddenemergency in which a quick decision had to be taken… [but] agrave, deliberate and unprovoked violation… Stifling thepeaceful expression of legitimate dissent today can only result,inexorably, in the catastrophic of violence some other day."
The hope which I expressed, that:
“the Inspector-General of Police will of his own volition issueappropriate directions and instructions to all Officers-in-Chargeof Police Stations, that criticism of the Government, and ofpolitical parties and policies, is, per se, a permissible exerciseof the freedom of speech and expression under Article 14(1)
”, was not realised. Another comparable violation of Article14(1) (a) occurred just five months later. That was inWijeratne v. Pereraw, where a trade union official was awardedRs 70,000/- as compensation on account of the unlawfulseizure of posters from his home and his unlawful arrest,because that was considered to be:
"… a grave pre-meditated violation of the fundamental rightsof a citizen, and it matters little whether he is a humble casualworker, raising a not-uncommon plea for a salary increase tomeet escalating living costs, or a person of standing andresponsibility in the community …”
It was stressed that:
“The Constitution, and in particular Articles 10, 12, and 14,recognise the fundamental right of every Sri Lankan to bedifferent: to think differently: and to have and to expressdifferent opinions – not merely a right to disagree privately insilence, but to communicate disagreement openly, byword, conduct and action, by peaceful and lawful means.Dissent, or disagreement manifested by conduct or action,is a corner-stone of the Constitution. It is a right enjoyedby Members who speak and vote as they wish in Parliament;by Judges, who must decide controversies according totheir considered opinion; and by every citizen at electiontime when he casts his vote for the candidate of hischoice, Democracy requires not merely that dissent betolerated, but that it be encouraged; and this obligation ofthe Executive is expressly recognised by Article 4(d),which therefore requires that the police not only refrain fromsuppressing lawful dissent, but also that they “respect,secure and advance’ the right to dissent. As Justice Jacksonominously observed in West Virginia State Board of Education v.Barbette"01.’
“Those who begin coercive elimination of dissent soon findthemselves exterminating dissenters. Compulsory unificationof opinion achieves only the unanimity of the graveyard. Itseems trite but necessary to say that the First Amendmentwas designed to avoid these ends by avoiding thesebeginnings.”
The planned protest was clearly not a hasty, strident, over-reaction to a trifling or transient grievance, but a patient,subdued and dignified plea to the conscience of the communityfor a living wage … These were not errors of judgmentoccurring during a sudden emergency, or when dealing witharmed violence directed at the foundations of democracy. Onthe contrary, the respondents had time for deliberation and werefaced with a proper exercise of democratic dissent.*
This time the Inspector-General of Police was directed:
“to issue, after consulting the Attorney-General, precise anddetailed instructions to all Officers-in-charge of Police Stationsas to their duties in terms of Article 4(d) of the Constitution, torespect, secure and advance the exercise of the fundamentalrights guaranteed by Article 13(1) and (2), and Article 14(1) (a),
and (c)…"
On 4,10.94 State Counsel tendered to court a copy of theinstructions prepared by the Attorney-General’s Department, whichhad been sent to to the Inspector-General of Police for issue to thepolice.
In Pieris v. Attorney-General(,u; about fifteen petitioners were eachawarded sums varying from Rs. 20,000/- to Rs. 25,000/- ascompensation and costs for the infringement of Article 13(2), 14(1)and 14(1) (c). The Court observed that:
'Moreover, in a representative democracy there must be acontinuing public interest in the workings of government whichshould be open to scrutiny and criticism… The unfetteredinterchange of ideas from diverse and antagonistic sources,however unorthodox or controversial, however shocking oroffensive or disturbing they may be to the electedrepresentatives of the people or any sector of the population,however hateful to the prevailing climate of opinion … must beprotected and must not be abridged if the truth is to prevail"…As Justice Jackson … once observed: “Freedom to differ isnot limited to things that do not matter much. That wouldbe a mere shadow of freedom. The test of its substance is theright to differ as to things that touch the heart of the existingorder. Wide: open and robust dissemination of ideas andcounter thought are essential to the success of intelligent self-government."
Finally, in Deshapriya v. Municipal Council, Nuwara Eliyam, theMayoress of Nuwara Eliya was ordered to pay Rs, 100,000/- ascompensation in respect of the unlawful seizure of 450 copies of the“Yukthiya" newspaper – which was held to be “a grave, deliberateand unprovoked infringement, and not one which occurred in asudden emergency or at a time of public disorder, or through an errorof judgment in a borderline case." The amount of compensation wasfixed at Rs. 100,000/- (although in Ratnasara Thero v.Udugampola<,3); only Rs. 10,000/- has been awarded for the seizureof 20,000 pamphlets) because:
“It would not be right to assess compensation at a few thousandrupees, simply because the newspaper was sold for sevenrupees a copy; that would only be the pecuniary loss caused bythe violation of the petitioners’ right of property under ordinarylaw. We are here concerned with a fundamental right, which notonly transcends property rights but which is guaranteed by theConstitution; and with an infringement which darkens theclimate of freedom in which the peaceful clash of ideas and theexchange of information must take place in a democraticsociety. Compensation must therefore be measured by theyardstick of liberty, and not weighed in the scales ofcommerce."
Learned Counsel for the petitioners cited the observations ofKulatunga, J., in Ratnapala v. DharamasirilU):
"… it seems to be that despite so many decisions, torture atpolice stations continues unabated, in utter contempt offundamental rights guaranteed by the Constitution. In grantingrelief this Court must necessarily have regard to thisdevelopment."
He submitted that the conduct of the Police reveals “a totaldisregard for the constitutional safeguards afforded to citizens",tantamount to contempt of this Court. While I agree that a series ofdecisions in regard to Article 14(1) (a) over a period of time, and theinstructions issued by the 4th respondent, would preclude anyleniency towards transgressors on the basis of uncertainty inthe law, I do not propose to increase the award of compensation inthis case by incorporating a punitive element.
As for the learned DSG’s plea in “mitigation", Article 13(2) providesthat an arrested person “shall be brought before the judge of thenearest competent court according to procedure established by law",and shall not be further held in custody, detained or deprived ofpersonal liberty except upon and in terms of the order of such judgemade in accordance with procedure established by law”. The"Procedure established by law” contemplates prompt productionbefore a Magistrate (see Hulangamuwa v. Weerasinghe,,i|; althoughthat dealt with an arrest upon a warrant and Abasin Banda v,Gunaratnd'*>, and cases cited). Even assuming that it is permissibleto record a statement before such production, that too must be donepromptly; the delay caused by a further search was not justifiable,here the petitioners were kept for an inordinately long time at thePolice station, and I decline to reduce compensation on the basissuggested by the learned DSG. I must add that Article 13(1) appliesnot only to the initial “arrest” but to continuing deprivation of libertyfor purposes other than the suspicion of the commission of anoffense: see Wickramabandu v. Herath(,7 Sirisena v. Perera(,S|, andPeiris v. Attorney-General.(supra)