JOSEPH PERERA ALIAS BRUTEN PERERA v. THE ATTORNEY-GENERAL AND OTHERS

027-SLLR-SLLR-1992-V-1-JOSEPH-PERERA-ALIAS-BRUTEN-PERERA-v.-THE-ATTORNEY-GENERAL-AND-OTHERS.pdf


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Silinona v. Dayalal Silva and Others (S. N. Silva, J.)
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JOSEPH PERERA ALIAS BRUTEN PERERAv.THE ATTORNEY-GENERAL AND OTHERSSUPREME COURTSHARVANANDA, C.J.
WANASUNDERA, J.
ATUKORALE, J.
L. H. DE ALWIS, J. ANDSENEVIRATNE, J.
S.C. 107/86;
S.C. 108/86; ANDS.C. 109/86
16.17,18 AND 19 MARCH, 1987
Fundamental Rights – Regulation 28 of the Emergency (Miscellaneous)(Provisions & Powers) Regulation No. 6 of 1986 – Illegal arrest and detention -Freedom of speech and expression – Constitution, Articles 12(2), 13(1), 14(1) -Power of President to make Emergency Regulations – The vires of Regulation 28of the Emergency Regulations – Regulations 18, 19, 26(a), 26(d) and 33 of theEmergency Regulations – Burden of proof – Constitution, Article 15(2) and (7) -Section 5 and 8 of the Public Security Ordinance and Articles 155(2) and 80(3) ofthe Constitution – Prior restraints – Pre-censorship.
Three petitions 107 -109/86 were consolidated and heard together. The petitionerin application No. 107/86 Joseph Perera alias Bruten Perera was a member of theRevolutionary Communist League and organiser of the "Young Socialist" inChilaw. The petitioner in application No. 108/86, Lorenz Perera alias RumanPerera is a brother of Joseph Perera. The petitioner in application. No. 109/86Lionel Dias Wijegunasinghe was a one-time lecturer in History in the ColomboUniversity. The Communist League organised a lecture to be delivered by the
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petitioner in application No. 109/86 at the Luxmi Hall, Chilaw on 26 June 1986 at3.30 p.m. on "Popular Frontism and Free Education”. Two days prior to themeeting, a leaflet XI accusing the U.N.P, Government supported by the RomanCatholic Bishop of Chilaw of getting enmeshed in a capitalist racist war with theresult that there were no funds to spend on free education and calling on thewitch-hunted teachers, progressive students and parents to attend the meeting,to get together and establish their rights by imposing the fact that the accusedparties are the enemies of the students and were trampling their rights, wasdistributed. The leaflet invoked the progressives to attend the meeting on 26 Juneand was issued in the name of “Young Socialist of the Revolutionary CommunistLeague” "Kamkaru Mawatha”. A poster “X” advertised the lecture.
Before the commencement of the meeting at Luxmi Hall on 26 June 1986, aPolice party led by the 2nd respondent arrived at the place of the meeting anddispensed the crowd and took into custody the three petitioners. On the morningof the 26 June, 1992 the police had received two complaints from the Principal,St. Mary’s College, Chilaw and the Vice Principal of Ananda College, Chilaw, tothe effect that a meeting was organised and arranged to be held by somerevolutionaries with a view to creating unrest among the students of the area. ThePrincipal of St. Mary's College also informed that he had received a warning letteron 23 June, 1986 signed “Eelam Tigers” threatening to blow up the school. ThePrincipal connected this threat with the proposed meeting. The threatening letterwas not produced, but its contents were taken down into the Information Book bythe Police who recorded the complaints of the school authorities.
A detention order was served on the three petitioners on 27 June 1986, and theywere held at the Chilaw Police Station until 15 July 1986. On this day theMagistrate ordered them to be remanded until 29 July 1986. The remand orderwas extended until 25 August 1986 but they were released on bail on 07 August1986. Sergeant Major Abeysinghe claimed that it was he and not the 2ndrespondent who arrested the petitioner. The respondents sought to justify thearrest and detention on the basis of powers vested in the police by Regulations18 and 19 of the Emergency Regulations. The petitioners were alleged to havebeen connected or been concerned in the commission of offences underRegulations 26(a), 26(d) and 33 of the Emergency Regulations. They were alsosaid to have contravened Regulation 28 by distributing x and xi without thepermission of the police.
Held:
Article 14 of the Constitution deals with those great and basic rights which arerecognised and guaranteed as the natural rights Inherent In the status of a citizenof a free country. Freedom of speech by Article 14(1 )(a) goes to the heart of thenatural rights of an organised freedom loving society to impart and acquireinformation. Of that freedom one may say that it is the matrix, the indispensablecondition of nearly every other freedom. This freedom is not absolute. There is no
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such thing as absolute and unrestricted freedom of speech and expression,wholly free from restraint; for, that would amount to uncontrolled licence whichwould lead to anarchy and disorder. Article 29(2) of the Universal Declaration ofHuman Rights sets forth the cases in which this freedom of expression maylegitimately be restricted. On similar lines, there are provisions in our Constitution.Article 15(2) provides that the exercise and operation of the right of freedom ofspeech and expression shall be subject to such restrictions as may beprescribed by law in the interests of racial and religious harmony or in relation toparliamentary privilege, contempt of court, defamation or incitement to anoffence. Article 15(7) further provides that “the exercise and operation of all thefundamental rights declared and recognised by Articles 12, 13(1), 13(2) and 14shall be subject to such restrictions as may be prescribed by law in the interestsof national security, public order and the protection of public health or morality orfor the purpose of the due recognition and respect of the rights and freedoms ofothers or of meeting the just requirements of the general welfare of a democraticsociety.
Section 5 of the Public Security Ordinance as amended by Law'No. 6 of 1978,enables the President to make Emergency Regulations. Section 8 of the PublicSecurity Ordinance is a preclusive section providing that no EmergencyRegulation and Order, Rule, or Direction made or given thereunder shall be calledin question in any court. Article 155(2) of the Constitution empowers the Presidentto make regulations overriding, amending or suspending the operation of theprovisions of any law, except the provisions of the Constitution.
Thus, the President's legislative power of making Emergency Regulations is notunlimited. It is not competent for the President to restrict via EmergencyRegulations, the exercise and operation of the fundamental rights of the citizenbeyond what is warranted by Articles 15(1) to (8) .of the Constitution. The groundsof restriction specified in the limitation Article 15 are exhaustive and any otherrestriction is invalid.
The regulations which the President is empowered to make owes its validity to thesubjective satisfaction of the President that it is necessary in the interest of publicsecurity and public order. He is the sole judgeof the necessity of such regulationand it is not competent for this court to inquire into the necessity for theregulations bona fide made by him. The regulation to be valid must satisfy theobjective test that it is in fact in the interest of national security, public, order, etc.
It is competent to the court to question the necessity of the Emergency Regulationand whether there is a proximate or rational nexus, between the restrictionimposed on a citizen's fundamental rights by Emergency Regulation and theobject sought to be achieved by the regulation. The integrity of the prohibitionreferable to section 8 of the Public Security Ordinance is to that extent detracted.Further, regulations made under section 5 of the Public Security Ordinance do notattract the immunity from challenge provided by Article 80(3) of the Constitution.
In a contest regarding the validity of a regulation, the President’s evaluation of the
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situation that the regulation appeared to him to be necessary or expedient is not •sufficient to lend validity to the regulation.
Freedom of speech and expression means the right to express one's convictionsand opinions freely by word of mouth, writing, printing, pictures or any othermode. It includes the expression of one's ideas through banners, posters, signsetc. It includes the freedom of discussion and dissemination of knowledge. Itincludes freedom of the press and propagation of ideas, this freedom is ensuredby the freedom of circulation. The right of the people to hear is within the conceptof freedom of speech. There must be untramelled publication of news and viewsand of the opinions of political parties which are critical of the actions of thegovernment and expose its weaknesses. Debate on public issues should beuninhibited, robust and widely open and that may well include vehement, causticand sometimes sharp attacks on government.
Such debate is not calculated and does not bring the government into hatred andcontempt.
It is only when the words written or spoken which have the tendency or objectionof creating public disorder that the law steps in to prevent such activities in theinterests of public security or public order.
Freedom of speech must yield to public order. In the interest of public order theState can prohibit and punish the causers of loud noises in the streets and publicplaces by means of sound amplifying instruments, regulate the hours and placesof public discussion, the use of public streets for the purpose of exercisingfreedom of speech, provide for the expulsion of hecklers from meetings andassemblies, punish utterances tending to incite an immediate breach of thepeace or riot as distinguished from utterances causing mere publicinconvenience, annoyance or unrest.
Regulation 28(1) applied to “any posters, handbills or leaflets" and required thepermission of the police whatever its character for valid distribution.
The general rule is that any form of previous restraint is regarded on the face of itas an abridgment of the freedom of expression and offends Article 14(1)(a) of theConstitution. Any system of prior restraint of expression comes to court to bearinga heavy burden of showing justification for the enforcement of such a restraint.
Pre-censorship is under our law not necessarily unconstitutional and can bejustified if brought within the ambit of Article 15. However, any system of pre-censorship which confers unguided and unfettered discretion upon an executiveauthority without narrow, objective and definite standards to guide the official isunconstitutional.
Regulation 28 violates Article 12 of the Constitution. It is violative of the equalityprovision because it would permit arbitrary and capricious exercise of powerwhich is the antithesis of equality before the law.
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The permission of the police mandated by regulation 28 is a form of priorrestraint. It abridges the freedom of expression guaranteed by the Constitution.There is no rational or proximate nexus between the restriction imposed byregulation 28 and national security/public order. Hence the regulation is invalidand cannot form the basis of an offence in law.
The burden rests on the respondents to justify the arrest and detention of thepetitioners.
Held further:
(Sharvananda, C.J., and Autkorale, J. dissenting).
(a) There was no illegal arrest and the detention was illegal only from 15,7.1986(and not from 26.6.1986).
The powers of a police officer under the Emergency Regulations are in addition toand not in derogation of his powers under the ordinary law (regulation 54). Indeciding on the validity of the arrest the sole issue for the court is the knowledgeand state of mind of the officer concerned at the time of the making of the arrest.
A state of emergency was in existence and prevailed in the counfry and it was theduty of the Police and armed forces to be as alert and vigiiant as possible todefend the State and the people from armed attack and subversion. It would nothave been consistent with the vigilance expected of the police to ignore thecomplaint made by two responsible officers of two responsible institutions thatpersons were planning to take steps to blow up a school and also create unrestand disturbances among the students and have it directed against thegovernment. The police team had promptly arrived at the scene of the offenceand there saw a crowd of young persons and a meeting about to begin. Posterswere affixed at the place. The petitioners were in possession of documents whichon a cursory glance appeared to be subversive. Document 'XT appeared tocontain if not seditious statements, at least statements that can be regarded astendentious. ‘XT was a ten paged tract that was in Sinhala. All this materialrequired time to consider and legal opinion too could well have been considerednecessary.
In deciding on the validity of the arrest, the sole issue for the court is theknowledge and state of mind of the officers concerned at the time of making thearrest.
Per Wanasundara, J., “the principles and provisions relating to arrest arematerially different from those applying to the determination of the guilt orinnocence of the arrested person. One is at or near the starting-point of a criminalproceeding while the other constitutes the termination of those proceedings andis made by the judge after hearing submissions of all parties. The power of arrest
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does not depend on the requirement that there must be clear and sufficient proofof the commission of the offence alleged. On the other'hand for an arrest, a merereasonable suspicion or a reasonable complaint of the commission of an offencesuffices. I should however add that the test is an objective one. I am of the viewthat the latter requirement was fulfilled in this case."
Suspicion arises at or near the starting-point of an investigation of which theobtaining of prima facie proof is the end.
This is not a case of the police riding roughshod over the rights of citizens.The police action was bona fide and within the scope of their functions and theoutcome has depended on a legal issue.
No police officer can predict the trial outcome of a case or/how a legalprovision would be interpreted by the court. If they are placed in peril and heavydamages awarded in respect of their acts where prosecution was to fail, no policeofficer would be inclined to perform his functions and may henceforth decide toleave well alone not only doubtful cases, but practically all cases, therebybringing the administration of justice to a standstill.
Though the initial arrest was legal, there is nothing in the documents which willjustify the conclusion that they would have brought the President or thegovernment into hatred or contempt or incite feelings of any disaffection.
They cannot be reasonably characterised as subversive literature. On completionof investigation into this complaint by 15.7.1985 no offence under the regulationscould have been disclosed and detention after this date was illegal.
Compensation in a sum of Rs. 10,000/- payable by the State would meet theends of justice.
Cases referred to:
Palks v. Connecticut (1937) 302 us 319.
Yasapala v. Wickremasinghe FRD 143,159,160.
Eshugbayi Eleko v. Govt, of Nigeria (1931) AC 662,670.
Satchanandan v. Union of India AIR 1982 SC 902.
Griswald v. Connecticut (1965) 28 US 479.
Thornhill v. State of Alabama 310 US 88.
West Virginia State Board v. Barnette (1942) 319 US 624, 641.
Abrams v. US (1919) 250 US 616.
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9. Austin v. Keele (1971) 402 US 415, 419.
Terminiells v. Chicago (1949) 337, US 1.
Superintendent Central Prisons v. Lohia AIR 1960 SC 633.
Francis v. Chief of Police (1973) 2 ALL ER 251,259.
Shelton v. Tucker(1960) 364 US 479, 488.
Ex parte Jackson (1877) 96 US 277.
Lovell v. City of Griffin (1938) 303 US 444.
New York Times v. US (1971) 403 US 713.
Bantan Books v. Sullivan 372 US 58 – 70.
Organisation for a Better Austin v. Kiefe (1971) 40 2 US 415.
Stant v. Banter (1958) 355 US 313.
Shuttleworth v. City of Birmingham (1919) 394 US 147.
Yick Wo v. Hopkins (1886) 118 US 356.
Gunasekera v. de Fonseka 75 NLR 246, 247, 250.
Muttusamy v. Kannangara 52 NLR 324, 327.
Baba Appu v. Adan Hamy 1900 1 34.
Dumbell v. Roberts (1944) 1 ALL ER 326.
Hussien v. Chog Fook Kam (1969) 3 ALL Er 1626.
McArdle v. Egan (1933) 150 LT 412.
Nanayakkara v. Henry Perera and Others (1985) 2 Sri LR 375, 385.
D. W. Abeykoon with R. Balendra, C. V, Vivekanandan and N. M. Perera forpetitioners in SC 107/86 and 109/86.
C. V. Vivekanandan with K. Packiyalingam, Miss Ranjanie Rayanathan and N. M.Perera for petitioners in SC 108/86.
Upawansa Yapa, D.S.G. with C. R. de Silva, S.S.C. instructed by Mrs.N. Nikapitiya, S.S.C., for Attorney-General.
Cur adv vult.
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25th May, 1987.
SHARVANANDA, C.J.
These three petitions filed by the three petitioners under Article126 of the Constitution were taken up together for hearing, as theycovered the same questions of law and facts.
A Divisional Bench of five Judges of the Supreme Court wasconstituted in terms of Article 132(3) of the Constitution as thequestions involved in these three applications are of constitutionalimportance.
Petitioner in application No. 107/86 says in bis petition that he is amember of the Revolutionary Communist League, a Political Partyand is the organiser of the “Young Socialist” in Chilaw. TheCommunist League organised a lecture to be held at Luxmi Hall,Chilaw on 26th June 1986. The said lecture related to the topic of“Popular frontism and free education” and was to be delivered at3.30 that evening by L. D. Wijegunasinghe (a one-time Lecturer inHistory in the Colombo University) the petitioner in Application No.109/86. Copies of printed poster ‘X’ were affixed and some copies ofleaflet ,‘X1 ’ were distributed to the public by the Petitioner two daysprior to the date of the said meeting with a view to give publicity tothe meeting. The poster marked ‘X’ ran as follows:
“PUBLIC LECTURE
POPULAR FRONT AND ATTACK ON FREE EDUCATIONLECTURER: WIJE DIASCENTRAL COMMITTEE MEMBERR.C.L.
June 26-3 p.m.
CHILAW LUXMI HALLYOUNG SOCIALISTS
Piyadasa Press
6/244, High Level Road, Maharagama.”
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The leaflet ‘XT is in Sinhala. The following is the English translationof it, filed by the State:
“Preserve the Fundamental Rights of Students andTeachersDue to the ever intensifying capitalist economic crisis theU.N.P. Government has come forward with plans to completelydeprive the oppressed young worker population of their right toeducation. Already the Government has deliberately, permittedthe establishment of private Universities, the demolishing ofexisting Universities, the sacrifice of Maha Vidyalayas andCentral Schools for Army camps and the ruination of otherschools by handing over the administration of such schools tothe stooges of the U.N.P.
The Government desperately endeavouring to perpetuateits existence having enmeshed itself in a capitalist racist warhas no funds to spend on education and it has becomenecessary to do away with all these rights. These are pressuresthat the oppressed worker students cannot in any manner bear.
It is as a first step in the achieving of these wicked endsthat over a 100 militant students have been banned fromattending classes. It is under these circumstances that theUniversity Teachers who receive a beggarly salary from thepaltry amount set apart for education by the Government havestepped in to fight with the Government.
L.S.S.P. and the Stalinist leadership having not supportedthe students struggle branded them as smugglers of immaturepeople and stated that nothing could be done owing to thecrisis in the North. They opposed the formation of a StudentOrganisation. The Nava Samasamaja and the other capitalist(leadership) who said that solutions can be found by havingdiscussions with the capitalist Government are fully responsible■for the critical situation that has arisen today.
In these circumstances this crisis has come into the openin all areas of the Island in various forms. There are reports of
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this crisis from two leading schools in Chilaw. The facts reportedto us are briefly as follows:
Five popular and experienced teachers of Chilaw,St. Mary’s Boys Maha Vidyalaya had been suddenly transferredto other schools. It is important to note that these five teachershave over a long period of time produced good results andperformed their duties with dedication. Vile acts are doneagainst these teachers by the Principal and some others whocall themselves teachers. These people have a stinking history.These are people who in the previous student struggles andstudent issues resorted to have students physically assaultedand have them suspended from classes -and thereby violatingthe fundamental rights of students. The parents of the area arewell aware of this and they are held in contempt by the studentsand the parents. These people who had played about with thelives of the students in previous student struggles are today fortheir opportunist needs witch-hunting the best teachers left inthe school and are destroying the education of the students withthe idea of crowning themselves.
It is no secret that those people receive the completeco-operation of the political bosses and the head of the CatholicChurch of Chilaw – namely the Bishop, in this venture.
In the meanwhile there are reports of teachers whothreaten and harass students of Ananda College, Chilaw. It isreported that the Vice Principal of Ananda College, Chilaw whohas assumed the leadership of this despicable service hasbeen slinging mud, abusing students calling them terrorists.This person who has attracted displeasure in the schools hehad served, does treacherous acts against the students in thecompany of some others who call themselves teachers.
We request the witch-hunted teachers, the progressivestudents and parents to get together and establish their rightsby exposing the fact that these persons are enemies of thestudents and are trampling their rights.
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■10. We who are fighting for the workers to capture Statepower invite progressives to attend a lecture on the topic “FreeEducation and Popular Frontism" to be delivered at Luxmi Hall,Chilaw at 3.00 p.m. on the 26th of this month.
Young Socialist of the Revolutionary Communist League,“Kamkaru Mawatha.”
Before the commencement of the meeting at the said Luxmi Hall, aPolice Party led by the 2nd Respondent arrived at the place of themeeting and dispersed the crowd who had come to hear the lectureand took into custody these three petitioners. According to thePetitioners they were not at any stage informed by the Police thereason for dispersing the crowd and the reason for their arrest. Thethree petitioners were detained at the Chilaw Police Station from
up to 15.7.86 by the 3rd Respondent without assigning anyreason or Cause for such detention. The Petitioner in application No.108/86, who is a brother of the Petitioner in application No. 107/86 fellsick on 7.7.86 and was admitted to the General Hospital, Chilaw. Theother Petitioners were produced before the Magistrate of Chilaw on
and were remanded by the Magistrate till 29.7.86. Thoughthe Petitioner in S.C. Application No. 108/86 was not produced incourt on 15.7.86, the Magistrate made order remanding him also andhe was removed to the prison hospital, Negombo.
The Petitioners filed their applications to this court on 25th July1986, while they were still under detention. Subsequently they wereenlarged on bail by the Magistrate on 7.8,86.
The fact of the arrest and detention of the Petitioners are admittedby the Respondents. The 2nd Respondent however denied that hearrested the Petitioner and stated that he had nothing to do with theirarrest and detention. One Dhanapala Abeysinghe, Sergeant Majorattached to the Police Station, Chilaw, has filed an affidavit statingthat it was he and not the 2nd Respondent who arrested thepetitioners. He states that he informed them that he was taking theminto custody on a charge of distributing newspapers and otherdocuments, which brought the Government into hatred and contemptin the eyes of the students and other members of the public. Hefurther deposed that upon complaints made on 26.6.86 by the
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Principal, St. Mary's College, Chilaw and the Vice Principal, AnandaCollege, Chilaw, that a public meeting had been organised by certainrevolutionaries with a view to create unrest among the students of thearea, he along with a Police party proceeded at 2.30 p.m. on that dayto Luxmi Hall, to investigate the said complaints. He questioned thepetitioners and they informed him that they had organised a meetingamong the school children, to educate them on "Free education andthe unreasonable attitude of the Government towards freeeducation.” He found in the possession of the petitioners (a) 46copies of the newspaper “Kamkaru Mawatha” (b) Pamphlet marked'Y1 ’ issued by the Revolutionary Communist Party on "FreeEducation” and (c) a document entitled “Kaleena Guru HandaPrakashana” marked Y2. According to him these documentscontained material which would have brought the Government intohatred and contempt in the eyes of the people, including the personswho had gathered there for the meeting. “Having read the saiddocuments, I suspected that the meeting had been organised with aview of causing hatred and to incite the feelings of disaffectionagainst the Government, amongst the students of the area who hadgathered there. Consequently I decided to arrest the petitioners." Hefurther stated that the petitioners were detained at the Chilaw PoliceStation in terms of a written order 3R4 made by M. C. Mendis, theSenior Superintendent of Police, Chilaw, dated 27.6.86, by virtue ofpowers vested in him under Regulation 19(4) of the EmergencyRegulations. The Superintendent of Police issued the detention orderauthorising the detention of the petitioners “as they had committed orwere suspected to have committed an offence under EmergencyRegulations 26(a) and 26(d) and 33 of the Emergency Regulations.”Sergeant Major Abeysinghe further stated in his affidavit that he wasaware that permission of the Inspector General of Police had notbeen obtained for the distribution of the aforesaid documents markedX and X1, and that their distribution by the petitioners without thepermission of the Inspector General of Police was in violation ofRegulation 28(1) of the Emergency Regulation.
According to the affidavit filed by Peter Fernando, I.P., Chilaw, on
the Principal, St. Mary’s College, made a complaint at theChilaw Police Station, that he had received a letter on 23.6.86threatening to blow up the school; on examining the letter he foundthat the sender of the letter had been disclosed as ‘Eelam Tigers.’
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The Principal also informed him that the Revolutionary CommunistLeague had organised a public meeting at 3.00 p.m. on the samedate at Luxmi Hall, Chilaw, with a view to creating unrest amongst thestudents of the area. The Vice Principal of Ananda College, had alsomade a complaint that a public meeting had been organised by theRevolutionary Communist League with a view to create unrest amongthe students. On this complaint he suspected that the said meetinghad been organised with a view to bring or attempt to bring thePresident and the Government into hatred and disrepute and to incitefeelings of disaffection against the government amongst studentsand other members of the public, and that in consequence he sent aPolice Party in charge of Sergeant Major Dhanapala Abeysinghe, tomake inquiry and take action.
The Respondents have not filed the letter received by thePrincipal, St. Mary's College, which is alleged to have been sent tothe Principal, St. Mary’s College by ‘Eelam Tigers,’ threatening toblow up the school. This letter appears to be a red herring. It is to benoted that though the letter had been received by the Principal, on
he had not reported the matter to the Police until 26.6.86,until he became aware of the proposed meeting at Luxmi Hall on
This threatening letter does not appear to have influencedthe Police or played any role in arresting the petitioners, as accordingto the Police, petitioners were arrested on the ground that they wereorganising a meeting to bring the President and the Government intohatred and contempt. It is not alleged that the petitioners had sentthat letter nor were they even suspected of having sent it.
Mendis, the Superintendent of Police who issued the detentionorder 3R4 has filed affidavit stating that “having considered thematerial placed before me, by the Officer-in-Charge of the ChilawPolice Station, I was of the opinion that the petitioners had committedor had been concerned in commission of offences under Regs.26(a), 26(d) and 33 of the Emergency Regulations. I was also of theopinion that the investigations were incomplete add it was necessaryto detain the petitioners pending the completion of investigations."
In view of the conclusion that I have reached that the arrest anddetention of the petitioners were illegal and unlawful and that there
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was no legal justification for such arrest and detention, it is notnecessary for me to go into the question whether the petitionerswere, prior to their arrest and detention, informed of the reason fortheir arrest and detention.
The Petitioners in their applications to this court complained thattheir fundamental rights guaranteed to them by Articles 12(2), 13(1),14(1) viz: freedom from arbitrary arrest and detention and freedom ofspeech and expression have been violated by administrative action.
The Respondents seek to justify the arrest and detention of thePetitioners on the basis of the powers vested in the Police byRegulations 18 and 19 of the Emergency Regulations. They state thatthe Petitioners had committed or had been concerned in commissionof offences under Regulations 26(a), 26(d) and 33 of the EmergencyRegulations. At the argument before us it was urged by Counsel forthe Respondents that the petitioners had, by distributing leaflets Xand X1, without the permission of the Police, in any event, violatedRegulation 28 of the Emergency Regulations and that hence theirarrest and detention were warranted in law.
Article 14 of the Constitution deals with those great and basicrights which are recognised and guaranteed as the natural rightsinherent in the status of a citizen of a free country. Freedom ofspeech guaranteed by Article 14(1 )(a) goes to the heart of the naturalright of an organised freedom-loving society to impart and acquireinformation. “Of that freedom one may say that it is the matrix, theindispensable condition of nearly every other freedom” Palks v.Connecticut.(1) This freedom is not absolute. There is no such thing asabsolute or unrestricted freedom of speech and expression, whollyfree from restraint; for, that would amount to uncontrolled licencewhich would tend to disorder and anarchy. Absolute and unrestrictedindividual rights do not and cannot exist in a modern State. Thewelfare of the Individual, as a member of a collective society, lies in ahappy compromise between his rights as an individual and theinterests of the society to which he belongs. Article 29(2) of theUniversal Declaration of Human Rights, sets forth the cases in whichthis freedom of expression may legitimately be restricted:- "In theexercise of his rights and freedoms everyone shall be subject only to
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such limitations as are determined by law, solely for the purpose ofsecuring due recognition and respect for the rights and freedoms ofothers and of meeting the just requirements of morality, public orderand the general welfare in a democratic society.” Our Constitutionhas rightly struck a proper balance between the varying competingsocial interests, and has in line with these principles, set forth therestrictions to which the fundamental right of speech and expressionmay be subject to. Though the rights of a citizen are neither absolutenor limitless, any limitation of the freedoms protected by Article 14should however be closely scrutinised.
Article 14(1) of our Constitution provides that every citizen isentitled to freedom of speech and expression including publication.
Article 15(2) provides that the exercise and operation of thisfundamental right shall be subject to such restrictions as may beprescribed by law in the interests of racial and religious harmony'or inrelation to parliamentary privilege, contempt of court, defamation orincitement to an offence. Article' 15(7) further provides that “theexercise arid operation ofrall the fundamental rights declared andrecognised by Articles 12, 13(1), 13(2) and 14 shall be subject tosuch restrictions as may be prescribed by law in the interests ofnational security, public order and the protection of public health ormorality, or for the purpose of securing due recognition and respectfor the rights and freedoms'of others,' or of'meeting the justrequirements of the general welfare Of a; democratic: society. For thepurpose of this paragraph “law” includes regulations made under theiawfortHe;tj.mg bdfhgrefeting’tb public sefeiirity."-
Section 5 of therPublic' Security Ordinance as amended by lawNo.’ 6 of -1978r provid&s-fOr'the' President to make – EmergencyRegulatibns?lt!enactedthat:(1)The:Pfesident'maym'akesuchregulations as appear to him to be necessary or expedient in theinterests' bhpdblid'security ahd the preservation of public order andthe sUppre^ibrv of’mutinypriof, or civil commotion, or for themaintenance' Of the supplies ’ and services essential’ to the' life of the
community^■. (2) Without prejudice to the generality of the powers conferred bythe prede.dihg.‘ subsection;' emergency regulatiansirnay,: sodar as
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appear to the President to be necessary or expedient for any of thepurposes mentioned in that subsection –
authorize and provide for the detention of persons;
(b)
(c)provide for amending any law, for suspending the operation ofany law and for applying any law with or without modification;
(e)and
(9)The power of the President to make emergency regulations stemsfrom the provisions of the aforesaid section 5 of the Public SecurityOrdinance as amended. It is the source of his legislative power to doso.
Section 8 of the Public Security Ordinance is a preclusive sectionproviding that no emergency regulation and order, rule or directionmade or given thereunder shall be called in question in any court.
Article 155(2) of the Constitution stipulates that the power of thePresident to make emergency regulations under the Public SecurityOrdinance … shall include the power to make regulations, having thelegal effect of overriding, amending or suspending the operation ofthe provisions of any law, except the provisions of the Constitution.
Thus the President’s legislative power of making EmergencyRegulations is not unlimited. It is not competent for the President torestrict via Emergency Regulations the exercise, and operation of thefundamental rights of the citizen beyond that warranted by Article15(1-8) of the Constitution. The width of the restriction envisaged byArticle 15(7) cannot be added, varied or superseded by anyemergency regulation in excess of that referred to in Article 15(7). For
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a restriction, imposed by the Emergency Regulations which directlyand substantially affects the freedom of speech, to be valid, it has tobe based on one of the grounds of restriction specified in Article15(2) and 15(7) and only to the extent referrable to it. Any furtherrestriction will not have the support of law. The grounds of restrictionspecified in the limitation Article 15 are exhaustive and any otherrestriction is invalid.
Article 15(7) conditions the curtailment of the fundamental rights inthe interests of national security, public order etc. In order that a lawmay be in the interest of national security, public order, there must bea proximate and reasonable nexus between say, (in the case offreedom of speech and expression) the nature of the speechprohibited and national security or public order – the phrase "in theinterests of_ public order” is wider than the words “for themaintenance of national security or public order – the connection hasto be intimate, real and rational. The phrase cannot be interpreted tomean that even if the connection between the restriction and thenational security or public order is remote and indirect, the restrictioncan be said to be in the interests of national security or public order.
A restriction can be said to be in the interests of security or publicorder only if the connection between the restriction and the securityor public order is proximate and direct. Indirect or far-fetched orunreal connection between the restriction and security/public orderwould not fall within the purview of the expression in the interests ofsecurity/public order. “For the impugned restriction to be valid, therelationship between the impugned regulation and the purpose of theregulation must, of course be rational or proximate.” Yasapala v.Wickramasinghe.<Z) If the restrictions imposed are wide enough tocover permissible as well as impermissible restrictions, the regulationwill be struck down as a whole, since the restriction put upon thefreedom of speech will not be justified by Articles 15(2) or 15(7).Regulations attempting to restrict the freedom'of speech must furtherbe narrowly drawn. Precision of the regulation must be thetouchstone in an area so closely touching a most precious freedom.Such a regulation must be strictly construed and greater th<restriction, the greater the need for strict security by the court.
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As stated earlier Article 155 of the Constitution has placed alimitation on the extensive power of the President to make emergencyregulations under the Public Security Ordinance – not to enact lawinconsistent with or in derogation of fundamental rights; if anyregulation transgresses the limit, then to the extent of suchcontravention it is void. In the enforcing of a fundamental right thecourt is, by reason of the provisions of Article 155, necessarilycharged with the duty of enforcing the fundamental right and ofdeclaring void any regulation which is inconsistent with those rightsto the extent of the inconsistency. When Article 15(7) provided that,for the purpose of that paragraph “law” included regulations madeunder the law for the time being relating to public security, itpostulated infra vires regulations and not regulations prohibited byArticle 155(2).
Section 5 of the Public Security Ordinance as amended by LawNo. 6 of 1978, enables the President to make regulations “as appearsto him to be necessary or expedient in the interests of public securityand preservation of public order.” The regulation owes its validity tothe subjective satisfaction of the President that it is necessary in theinterest of public security and public order. He is the sole judge of thenecessity of such regulation, and it is not competent for this court toinquire into the necessity for the regulations bona fide made by himto meet the challenge of the situation. But under Article 15(7) of theConstitution it is not all regulations, which appear to the President tobe necessary or expedient in the interests of public security andpreservation of public order, made under section 5 of the PublicSecurity Act which can impose restrictions on the exercise andoperation of fundamental rights. It is only regulations which survivethe test of being in the interests of national security, public order …”in terms of Article 15(7). In a contest regarding the validity of aregulation the President’s evaluation of the situation, that theRegulation appeared to him to be necessary or expedient is notsufficient, to lend validity to the regulation.
Under Article 15(7) the Regulation must in fact be in the interest ofnational security, public order … The Regulation to be valid mustsatisfy the objective test. Though the court may give due weight to
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the opinion of the President that the regulation is necessary orexpedient in the interests of public security and order, it is competentto the court to question the necessity of the Emergency Regulationand whether there is a proximate or rational nexus between therestriction imposed on a citizen’s fundamental right by emergencyregulation and the object sought to be achieved by the regulation. Ifthe court does not find any such nexus or finds that activities whichare not pernicious have been included within the sweep of therestriction, the court is not barred from declaring such regulation voidas infringing Article 155(2) of the Constitution. The integrity of theprohibition referrable to section 8 of the Public Security Ordinance isto that extent detracted. The Deputy Solicitor-General, very rightlyconceded that this court can, today inquire into the validity of anEmergency Regulation. Section 8 of the Public Security Ordinancehas to yield to Article 155(2) of the Constitution. Further Regulationsmade under said section 5 of the Public Security Act do not attractthe immunity from challenge provided by Article 80(3) of theConstitution.
The basis of the three petitioners’ applications is that they wereunlawfully arrested and kept in unlawful detention. The respondentsadmit the arrest and detention. The question then arises as to onwhom the burden of proof lies to establish the legality of the arrestand detention. One of the essential attributes of the Rule of Law isthat executive action to the prejudice of or detrimental to the right ofan individual must have the sanction of law. The State has got nopower to deprive a person of his life or liberty without the authority oflaw. This is the essential postulate and basic assumption of the Ruleof Law. Lord Atkin said “In accordance with British jurisprudence nomember of the executive can interfere with the liberty or property of aBritish subject except on the condition that he can support thelegality of his action before a Court of Justice.” Eshugbayi Eleko v.Govt, of NigeriaF1 Thus the burden rests on the respondents to justifythe arrest and detention of the petitioners. The respondents mustshow that the regulation which gives them the power to arrest/ detainis covered by one of the permissible grounds of restriction e.g.interest of national security or public order stipulated by Article 15(7).
If the impugned regulation imposes a restriction upon the
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fundamental right, by interfering with its exercise by the petitoner, theburden of proving that the restriction is in the public interest lies uponthe Respondents (Satchanandan v. Union of lndia).m
Dhanapala Abeysinghe who arrested the petitioners states in hisaffidavit, that he found documents in the possession which containedmaterial “which would have brought the Government into hatred andcontempt in the eyes of the people including the persons who hadgathered there at the meeting.” The documents referred to, arecopies of the newspaper “Kamkaru Mawatha" and pamphlets Y1 andY2. He arrested the petitioners on a charge of “distributingnewspapers and other documents which brought the Governmentinto hatred and contempt. The documents in question are X and X1(supra).
M. C. Mendis, Senior Superintendent of Police, states in hisaffidavit that “having considered the material placed before me bythe Officer-in-Charge of the Chilaw Police Station, I was of the opinionthat the petitioners had committed or had been concerned incommission of offences under Regulations 26(a), 26(d) and 33 of theEmergency Regulations.” The material that appears to have beenplaced before him consisted of the complaints of the Principal andVice Principal, referred to above, documents X, X1, Y1 and Y2 andthe newspaper “Kamkaru Mawatha”. He adds because of thatopinion, he issued the detention order 3R4, on 27.6.86 to detain thepetitioners at the Chilaw Police Station.
Regulation 18 of the Emergency Regulation authorises the arrestwithout warrant and detention for purpose of search any person whois committing or has committed or whom he has reasonable groundfor suspecting to be concerned in committing an offence under theEmergency Regulations.
Regulation 19(2) authorises the detention of the person detainedunder Regulation 18 for a period not exceeding ninety days.
The respondents allege that the petitioners have committedoffences under Regulation 26(a), 26(d) and 33 and hence they werejustified in arresting and detaining them.
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The relevant regulations provide as follows:
“26. Any person who by words, whether spoken or written or bysign or visible representations or by conduct or by any otheract-
brings or attempts to bring the President or theGovernment into hatred or contempt, or excites, orincites or attempts to excite or incite feelings ofdisaffection to, or hatred or contempt of the Presidentor the Government; or
(b)
(c)
raises or creates or attempts to raise or creatediscontent or disaffection among the inhabitants or SriLanka or any section, class or group of them, shall beguilty of an offence …”
"33. Whoever without lawful authority or reasonable excuse, theproof whereof shall lie on such person, has in his possession,custody or control, any book, document dr paper containingany writing or representation which is likely to be prejudicialto the interests of national security or to the preservation ofpublic order or which is likely to arouse, encourage orpromote feelings of hatred or contempt to the Government orwhich is likely to incite any person directly or indirectly to takeany step towards the overthrowing of the Government shallbe guilty of an offence.”
Sergeant Abeysinghe who testifies to having arrested thepetitioners states that, having read the documents X, X1, Y1 and Y2and the newspaper ‘Kamkaru Mawatha’ he suspected that themeeting was organised with a view of causing hatred and to incitefeelings of disaffection against the Government among the studentsin the areas who had gathered there and that was why he arrested
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the petitioners. M. C. Mendis, Senior Superintendent of Police alsostates that these documents contained material which would havebrought the Government into hatred and contempt in the eyes of thepeople and that was why he issued the detention order 3R4 on thesepetitioners. These documents have been placed before this court. Iregret to state that a scrutiny of these documents does not show thatthey contain any objectionable matter from which it would bepossible for any reasonable man to draw the conclusion that thepetitioners had committed or attempted to commit offences underRegulations 26(a) and/or (d) and Regulation 33 and that it wasnecessary to arrest or keep them in detention. In my'view it is notsufficient for these Police Officers to say that they had material andthat they felt satisfied on the basis of that'material that it wasnecessary to take preventive action against the petitioners. Theirword cannot be treated as an ipse dixit, when the material viz: theimpugned documents are before us and we are in a position to seewhether it was possible for a reasonable man to reach the conclusionor the satisfaction deposed to by the Police Officers. Satisfaction ofthe mind presupposes application of the mind and forming aconclusion after an assessment of the entire matter. It is not amechanical act. Satisfaction must be such as can be reached by arational mind. The satisfaction must be of a reasonable man. ThePolice Officer must apply his mind to see whether the consequenceswhich he apprehends have a reasonable nexus to the nature andcontents of the documents. If the apprehended consequences arefar-fetched or unwarranted, then the satisfaction would not be real.Having perused the documents in question, I cannot persuademyself to think that a rational and reasonable person could havebeen satisfied that the writings would bring the President or theGovernment into hatred or contempt or incite feelings of anydisaffection or that they could reasonably be characterised assubversive literature. The Impugned writings do not contain anythingobjectionable.
The pamphlet Y1 is a printed article in Sinhala, titled “Defend theRight of Free Education – Build the Mass Movement to Defend theWhite Paper on Education." It purports to be a statement of thepolitical committee of the Revolutionary Communist League. It is
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dated 5.2.1982 and priced at Rs. 17- runs into several pagescriticising the Government’s White Paper on Education as conducingto the erosion of free education.
The pamphlet Y2 dated 8.1.1986 is a Guru Handa Publication -Voice of the Teachers, titled ‘Education is not a privilege but a right’and was issued by the Lanka Teachers Association. It purports to setout the hardships and handicaps suffered by the poor parents’children as against the privileges and advantages enjoyed by richmen’s children. It sets out facts and figures substantiating theallegation that the poor man’s child is disadvantaged.
The petitioners admit that the documents Y1 and Y2 containcriticism of the Government but state that it is a legitimate criticism ofits stepmotherly attitude towards free education and village schools,but refute the allegation that they bring the President or theGovernment into hatred or contempt or ill-affection. I have scrutinisedthese pamphlets carefully to see whether the allegation of therespondent that the petitioners had by having in their possession Y1and Y2 committed any offence under the Emergency Regulations26(a) and (d). In my opinion these documents do not bear out theallegations that the Petitioners had committed the alleged offences.The Deputy Solicitor-General did not waste his time in trying tosupport the respondent’s fanciful allegation based on Y1 and Y2.
The respondents did not file as an exhibit any copy of thenewspaper ‘Kamkaru Mawatha’ which they seized from thepetitioners. They did not rely on that newspaper to substantiate theirallegation against the petitioners.
Finally the respondents were reduced to relying on the poster ‘X’(supra) and the pamphlet XT (supra) to justify their contention, thatthe petitioners had committed the said offences. The poster X can, byno stretch of imagination, be said to come within the category ofdocuments referred to in the said Regulations. It is preposterous tostate that the poster X, announcing the holding of a meeting toexpatiate on “Popular Front Politics and Attack on Free Education”was calculated to bring the Government into hatred and contempt.The Deputy Solicitor-General did not base any arguments adverse to
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the petitioners on the poster X and rightly didv not seek to rationalisethe view of the Police Officers.
The Deputy Solicitor-General had finally to rest the case of thePolice Officers on the pamphlet X1. He did not accept thecorrectness of the translation of X1 (original is in Sinhala) filed by thepetitioners and has chosen to file a separate translation which isreproduced above. It is not necessary to determine whose translationrepresents the correct version. Even on the above translation which ismost favourable to the respondents, one cannot reasonably findanything incriminating in X1 or any foundation for the opinion that X1was calculated to bring the Government into hatred' and contempt.Ex facie X1 does not contain anything derogatory of the President orof the Government. The Deputy Solicitor-General was hard put todetect anything in X1, which would lend support to the allegation ofthe respondents that the document could justifiably be the basis of acharge under the aforesaid regulations. He has drawn our attention tosome stray sentences in X1 (those sentences are sidelined in X1above) which, according to him, may conduce to bring the Presidentand Government into ridicule and contempt and have the tendencyto incite feelings of disaffection. While appreciating his valiant effortto salvage the opinion of the Police Officers, I cannot identify in thosesentences or in the tenor of the whole document X1, anything whichcan reasonably substantiate the accusation of the Police against thepetitioners. He pointed to the passages in X1 where it is stated that“the Government is desperately endeavouring to perpetuate itsexistence having enmeshed itself in a capitalist racist war' and that"it is no secret that these people receive the complete co-operation ofthe political bosses and the head of the Catholic church of Chilaw -namely the Bishop, in this venture” and submitted that thesepassages go beyond criticism of the Government and are calculatedto create discontent or disaffection among the inhabitants of SriLanka or any section of them. I cannot agree with this far-fetchedconstruction. The comment may be strongly worded. But it does nothave the pernicious tendency or intention of creating public disorderor disturbance. The pamphlet is not couched in any languagecalculated to incite persons to action. There is no advocacy of action.It certainly contains expressions of dissent and criticism againstGovernment. But freedom of speech and expression would be
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illusory if the Police can with impunity arrest and detain a person if hedoes not obsequiously sing the praises of the Government. Thedanger to a party in power is not the same as rocking the security orsovereignty of the State. The Police should not be timorous to scent inevery utterance criticising the Government, an attempt to incitedisaffection against or to overthrow the Government. It is to be notedthat what is prohibited is advocacy of action and not advocacy ofideas. Only when the speech is an integral part of action does itbecome penalised.
Freedom of speech and expression means the right to expressone's convictions and opinions freely by word of mouth, writing,printing, pictures or any other mode. It includes the expression ofone’s ideas through banners, posters, signs etc. It includes thefreedom of discussion and dissemination of knowledge. It includesfreedom of the Press and propagation of ideas; this freedom isensured by the freedom of circulation. “The right of freedom ofspeech and press includes not only the right to distribute, the right toreceive, the right to read and freedom of inquiry and the right toteach … These are proper peripheral rights” per Douglas, J., inGriswald v. Connecticut.®
The freedom of speech and expression is not only a valuablefreedom in itself but is basic to a democratic form of Governmentwhich proceeds on the theory that problems of government can besolved by the free exchange of ideas and by public discussion -Servai, Indian Constitution, 3rd Ed. Vol. I at 491. Free discussion ofgovernmental affairs is basic to our constitutional system. Our form ofgovernment is built on the premise that every citizen shall have theright to engage in political expression and association, the Peopleare the sovereign, not those who sit in the seats of power. It is thevoice of the People which ultimately prevails. Free political discussionis thus necessary to the end that government may be responsive tothe will of the people and changes may be obtained by peacefulmeans. The Constitutional protection for speech and expression wasfashioned to bring about political and social changes desired by thepeople.
Freedom of speech and expression consists primarily not only inthe liberty of the citizen to speak and write what he chooses, but in
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the liberty of the public to hear and read, what it needs. No one candoubt if a democracy is to work satisfactorily that the ordinary manand woman should feel that they have some share in Government.-The basic assumption in a democratic polity is that Government shallbe based on the consent of the governed. The consent of thegoverned implies not only that consent shall be free but also that itshall be grounded on adequate information and discussion aided bythe widest possible dissemination of information from diverse andantagonistic sources. The crucial point to note is that freedom ofexpression is not only politically useful but that it is indispensable tothe operations of a democratic system.
“Public opinion plays a crucial role in modern democracy.Freedom to form public opinion is of great importance. Publicopinion, in order to meet such responsibilities, demands the conditionof virtually unobstructed access to and diffusion of ideas. Thefundamental principle involved here is the people’s right to know. Thefreedom of speech guaranteed by the Constitution embraces at theleast the liberty to discuss publicly all matters of public concernwithout previous restraint or fear of subsequent punishments.”Thornhill v. State of Alabama,(6) – Without free political discussion, nopublic education, so essential for the proper functioning of theprocess of popular government, is possible. The welfare of thecommunity requires that those who decide shall understand them.The right of the people to hear is within the concept of freedom ofspeech./
Freedom of discussion must embrace all issues about whichinformation is needed to enable the members of a society to copewith the exigencies of their period. It is essential to enlighten publicopinion in a democratic state; it cannot be curtailed without affectingthe right of the people to be informed through sources, independentof the government, concerning matters of public interest. There mustbe untrammelled publication of news and views and of the opinionsof political parties which are critical of the actions of government andexpose its weakness. Government must be prevented from assumingthe guardianship of the public mind. Truth can be sifted out fromfalsehood only if the Government is vigorously and constantly cross-examined.
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“Authority … is to be controlled by public opinion, not publicopinion by authority" West Virginia State Board v. Barnette.l7) “Theultimate good desired is better reached by free trade in ideas – thebest test of truth is the power of thought to get itself accepted in thecompetition of the market.” Per Justice Holmes in Abrams v. U.S.m
One of the basic values of a free society to which we are pledgedunder our Constitution is founded on the conviction that there mustbe freedom not only for the thought that we cherish, but also for thethought that we hate. All ideas having even the slightest socialimportance, unorthodox ideas, controversial ideas, even ideashateful to the prevailing climate of opinion have the protection of theconstitutional guarantee of free speech and expression. Hencecriticism of government, however unpalatable it be, cannot berestricted or penalised unless it is intended or has a tendency toundermine the security of the State or public order or to incite thecommission of an offence. Debate on public issues should beuninhibited, robust and wide open and that may well includevehement, caustic and sometimes unpleasantly sharp attacks onGovernment. Such debate is not calculated and does not bring theGovernment into hatred and contempt.
“Criticism of public measures or comment on Government actionhowever strongly worded is within reasonable limits and is consistentwith the fundamental right of freedom of speech and expression. Thisright is not confined to informed and responsible criticism butincludes the freedom to speak foolishly and without moderation. Solong as the means are peaceful, the communication need not meet"standards of common acceptability." Austin v. Keeled
The perspective of free criticism with its limits for free peopleeverywhere was eloquently brought out by Sir Winston Churchill onthe historic censure motion in the Commons, as Britain was reelingunder defeat at the hands of Hitler –
“This long debate has now reached its final stage. What aremarkable example it has been of the unbridled freedom of ourParliamentary institutions in time of war. Everything that couldbe thought of or raked up has been used to weaken confidence
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in the Government, has been used to prove that Ministers arcincompetent and to weaken their confidence in themselves, tomake the army distrust the backing it is getting from the civilpower, to make workmen lose confidence in the weapons theyare striving so hard to make, to present the Government as a setof non-entities over whom the Prime Minister towers, and then toundermine him in his own heart, and, if possible, before theeyes of the nation. All this poured out by cable and radio to allparts of the world, to the distress of all our friends and to thedelight of all our foes. I am in favour of this freedom, which noother country would use, or dare to use, in times of mortal perilsuch as those through which we are passing."
It is only when the words, written or spoken, which have thepernicious tendency or object of creating public disorder that lawsteps in to prevent such activities in the interests of public security orpublic order. However precious the freedom of speech may be in ademocratic society, the means can never override the end itself. Theobject of freedom of speech is to “maintain the opportunity of freepolitical discussion to the end that government may be responsive tothe will of the people and that changes, if desired may be obtainedby peaceful means." Terminiells v. Chicago.1'® This opportunity canhardly be maintained without the existence of an organisedgovernment. No State can, therefore, tolerate utterances whichthreaten the overthrow of organised government by unlawful orunconstitutional means. The reason is that the security of the State ororganised government is the very foundation of the freedom ofspeech. None of the freedoms guaranteed by our Constitution canflourish in a state of disorder. Order is an elemental need in anyorganised society. The law restricting freedom of speech is not solelydirected against undermining the security of the State or itsoverthrow, but is made generally in the interest of public order.Freedom of speech must yield to public order. In the interests ofpublic order the State can prohibit and punish the causing of loudnoises in the streets and public places by means of sound amplifyinginstruments, regulate the hours and places of public discussion, theuse of public streets for the purpose of exercising freedom ofspeech; provide for the expulsion of hecklers from meetings andassemblies, punish utterances tending to incite an immediate breach
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of the peace or riot as distinguished from utterances causing mere“public inconvenience, annoyance or unrest” Superintendent CentralPrison v. Lohia.1"'1 The phrase in the interests of public order “coversaction taken for the avoidance of excessive noise seriouslyinterfering with the comfort or convenience of a substantial number ofpersons. The phrase would of course cover action for the avoidanceof any behaviour likely to lead to breach of the peace and perhapsexcessive noise can be brought under that heading.” Per LordPearson, delivering the judgment of the Privy Council in Francis v.Chief of Policed
As stated earlier the view of the Police is untenable and hence thearrest and detention of the petitioners are not authorised in law. Sincethe culpable action of the Police Officers constituted executive oradministrative action, within the meaning of Article 126 of theConstitution, the State is liable for their infringement of petitioners’fundamental rights.
Counsel for the State finally sought to justify the conduct of theRespondents by submitting that the petitioners had, on the admittedfacts, violated Regulation 28(1) of the Emergency Regulations. Forcommitting that offence they could lawfully be arrested and detained.Regulation 28(1) reads as follows:-
“The person shall without the permission of the InspectorGeneral of Police or any Police Officer authorised in that behalfby the Inspector General of Police, affix in any place visible tothe public or distribute among the public any posters, handbillsor leaflets.”
It is not denied that the Petitioners had not obtained any suchpermission as required by Regulation 28(1) for distributing the posterX and leaflet X1. The Petitioners contend that they are not bound inlaw to apply for and obtain any such permission to distribute suchinnocuous documents. They submitted that Regulation 28(1) wasultra vires the regulation-making power of the President under section5 of the amended Public Security Ordinance read with Article 155(2)of the Constitution and is void. They pointed to the fact thatRegulation 28(1) applied to "any posters, handbills or leaflets" and
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that it required the permission of the Police whatever its character forits valid distribution. They argued that this requirement of permissionfrom the Police ex facie restricts the exercise and operation of theirfundamental right of freedom of speech and expression and that thisrestriction is not referrable to the provisions of Article 15(2) and 15(7)of the Constitution. It is not disputed that Article 15(2) does not applyto the facts of the case. But the Deputy Solicitor-General urged thatemergency regulations are ‘law’ in terms of Article 15(7) and that thesweep of the fundamental right declared by Article 14(1)(a) canlawfully be restricted by Emergency Regulations such as Regulation28. Counsel for the petitioners countered that a regulation such asRegulation 28 which provides for obtaining of prior Police permissionfor distribution of posters and leaflets, of all categories, be they beinnocuous or harmful, be they be political pamphlets, seditiousliterature or party manifestos cannot be justified as having beenpassed in the interests of “national security, public order etc., interms of Article 15(7) – where is absent any proximate andreasonable nexus between the nature of the poster/leaflet andnational security or public order etc. Counsel further pointed out thatthe permission, required by Regulation 28 to render legal thedistribution of a poster/handbill could be granted or refused at theuncontrolled will or opinion of the Police Official. He submitted thatfreedom of expression, one of whose facets is the distribution ofposters, handbills and leaflets, would not truly exist if that right couldbe exercised only with the grace or goodwill of the police. It is thebasic right of a citizen to publish what he chooses without obtainingthe prior permission from any authority, subject only to theresponsibility before the law.
Laws that trench on the area of speech and expression must benarrowly and precisely drawn to deal with precise ends. Over-breadthin the area has a peculiar evil, the evil of creating chilling effectswhich deter the exercise of that freedom. The threat of-sanctions maydeter its exercise almost as patently as the application of sanctions.The State may regulate in that area only with narrow specificity: Therecan be no doubt of the legitimacy of the 'Government'^ interest'lnprotecting the State from subversion. But "eA/ien^though ThiGovernment's purpose be legitimate and substantial,: that'purposecannot be pursued by means that broadly stifle fundahl&htatpetsgnal
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liberties when the end can be more narrowly achieved.” Shelton v.Tucker.™
Liberty of circulating is as essentia! to the freedom of speech asliberty of publishing; indeed without the circulation the publicationwould be of little value. Ex parte Jackson.™ This freedom is not to beconfined to newspapers but embraces pamphlets and leaflets.“These indeed have been historic weapons in the defence of liberty,as the pamphlets of Thomas Paine and others abundantly attest. Thepress in its historic connotation comprehends every sort ofpublication which affords a vehicle of information and opinion – PerChief Justice Hughes in Lovell v. City of Griffin.™
The general rule is that any form of previous restraint is regardedon the face of it as an abridgment of the freedom of expression andoffends Article 14(1)(a) of the Constitution.
It was said in New York Times v. U.S.™ that "any system of priorrestraints of expression comes to this court, bearing a heavypresumption against its constitutional validity.” Bantan Books v.Sullivan.™ The Government thus carries a heavy burden of showingjustification for the enforcement of such a restraint "Organisation for aBetter Austin v. Kiefe."™
Pre-censorship is under our law not necessarily unconstitutionaland can be justified if brought within the ambit of Article 15. Howeverany system of pre-censorship which confers unguided and unfettereddiscretion upon an executive authority without narrow objective anddefinite standards to guide the official is unconstitutional. "It is settledthat an ordinance which makes the peaceful enjoyment of freedomswhich the constitution guarantees contingent upon the uncontrolledwill of an official – as by requiring a permit or licence which may begranted or withheld in the discretion of such an official is anunconstitutional censorship or prior restraint upon the enjoyment ofthose freedoms – Stant v. Banter.™ A person faced with such anunconstitutional licencing may ignore it and engage with Impunity inthe exercise of the right of free expression for which the law purportsto require a licence" Shuttleworth v. City of Birmingham.™
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Regulation 28 violates Article 12 of the Constitution. The Articleensures equality before the law and strikes at discriminatory Stateaction. Where the State exercises any power, statutory or otherwise itmust not discriminate unfairly between one person and another. If thepower conferred by any regulation on any authority of the State isvague and unconfined and no standard or principles are laid downby the regulations to guide and control the exercise of such power,the regulation would be violative of the equality provision because itwould permit arbitrary and capricious exercise of power which is theantithesis of equality before law. No regulation should clothe anofficial with unguided and arbitrary powers enabling him todiscriminate – Yick Wo v. Hopkins.(2,) Regulation 28 confers a nakedand arbitrary power on the Police to grant or refuse permission todistribute pamphlets or posters as it pleases, in exercise of itsabsolute and uncontrolled discretion, without any guiding principle orpolicy to control and regulate the exercise of such discretion. There isno mention in the regulation of the' reasons for which an applicationfor permission may be refused. The conferment of this arbitrarypower is in violation of the constitutional mandate of equality beforethe law and is void. The exercise of the basic freedom of expressioncannot be made dependent upon the subjective whim of the Police,without offering any standard of guidance. Where power is entrustedto a State official to grant or withhold permit or licence in hisuncontrolled discretion, the law ex facie impinges the fundamentalrights under Article 12. The permission of the Police mandated byRegulation 28 is a form of prior restraint. It abridges the freedom ofexpression guaranteed by the Constitution. It gives the Policeabsolute discretionary power to control the right of citizens toexercise their right of expression. There is no rational or proximatenexus between the restriction imposed by Regulation 28 and national
security/public order. It is unconstitutionally overbroad. It strikes atthe foundation of the fundamental right of speech and expression bysubjecting it to prior permission. Hence that Regulation is invalid andcannot form the basis of an offence in law.
For the foregoing reasons, I hold that the petitioners’ fundamentalrights of freedom from arbitrary arrest and detention and freedom ofspeech and expression secured to them by Articles 13 and 14 havebeen violated by executive/administrative action.
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The petitioners have been held in unlawful detention from 26.6.86till 7.8.86. The detention resulted from the unlawful detention order3R4.
The petitioners are entitled to relief in terms of Article 126(4) of theConstitution.
Since the infringements complained of by the petitioners werecaused by executive/administrative action the State is liable to renderthe petitioners relief that is just and equitable in the circumstances.The infringements in question constitute serious violations of acitizen’s fundamental rights. They call for substantial relief beinggranted to the aggrieved parties. However, in the specialcircumstances of this case, I direct the State to pay each of thepetitioners in Application Nos. 107,108 and 109 a sum of Rs. 25,000/-as damages, on account of the violations complained of.
I allow the applications of the petitioners and order the 1strespondent to pay each of the petitioners a sum of Rs. 3,000/- ascosts of his application to this court.
ATUKORALE, J .-l agree.
WANASUNDERA, J.
I am in agreement with the lucid and learned exposition of theprovisions of Article 14(1)(a) of the Constitution relating to thefundamental right of freedom of speech and expression contained inthe judgment of the Chief Justice. I myself subscribe strongly to theview that the constitutional provisions of Article 15(2) and (7) cannotbe availed of to prohibit legitimate political expression of opinion anddiscussion except probably at a time of gravest emergency anddanger to the survival of the State. So important is this fundamentalright, the Chief Justice has rightly cited the statement that this right is“the matrix, the indispensable condition of nearly every otherfreedom". While there can be no disagreement about the importanceand range of this provision of the Constitution, difficulties do arise in
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the application of the abstract principle embodying this right toconcrete situations. Since my own evaluation of the facts has led meto a slightly different conclusion, it is necessary that I set down myreasons in a separate judgment.
It is unnecessary to traverse the ground covered by his judgmentexcept to underscore the factual matters which I think lendthemselves to a different interpretation. The arrest of the petitionerstook place on the 26th of June 1986. On the morning of that day, thePolice had received two complaints from two responsible persons,namely, the Principal of St. Mary's College, Chilaw, and the VicePrincipal of Ananda College, Chilaw, to the effect that a meeting hadbeen organised and was shortly to be held by some revolutionarieswith a view to creating unrest among the students in the area. ThePrincipal of St. Mary’s College also informed the Police that he hadreceived a warning letter on 23rd June 1986 signed “Eelam Tigers"threatening to blow up the schoQl. Rightly or wrongly, the Principalcoupled this threat with the proposed meeting and thought that thePolice should be apprised of this situation.
In this connection it may be noted that under the EmergencyRegulations there is a duty on every person who becomes aware ofan intention or an attempt or a preparation to commit an offenceunder any emergency regulation to give information to the authorities(regulation 49). And regulation 45 makes every attempt and even thepreparation to commit any such offence, an offence by itself.
The meeting was due to commence at about 3.00 p.m. on thatday. Before the meeting commenced the Police had rushed to thescene, dispersed the students who had come to the meeting, andarrested the three petitioners. If the meeting had been held andspeeches made, A/ve do not know whether the Police would havebeen placed in a better position to defend this petition. What we nowhave are the acts and events leading up to the start of the meetingand we have to decide whether they were sufficient to permit thearrest and whether they can constitute an offence. The Police tookinto custody certain documents belonging to and in the possessionof the petitioners. Copies of the printed poster “X" had been affixedon the walls. The leaflets "X1 ” had been distributed prior to the
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meeting. The petitioners also had in their possession (1) “Y1" – apamphlet on “Free Education", (2) “Y2” – a document entitled “GuruHanda Prakashana", and (3) 46 copies of a newspaper called“Kamkaru Mawatha".
The Chief Justice has set out the translation of the contents ofleaflet “X1” in extenso in his judgment. Since the State has submittedthat some of the statements therein are tendentious or seditious, Ishall highlight those passages:
“The Government desperately endeavouring toperpetuate its existence having enmeshed itself in a capitalistracist war has no funds to spend on education and it hasbecome necessary to do away with all these rights. These arepressures that the oppressed worker students cannot in anymanner bear.”
“It is as a first step in the achieving of these wicked endsthat over a 100 militant students have been banned fromattending classes. It is under these circumstances that theUniversity Teachers who receive a beggarly salary from thepaltry amount set apart for education by the Government havestepped in to fight with the Government."
“L.S.S.P. and the Stalinist leadership having notsupported the students’ struggle branded them as strugglers ofimmature people and stated that nothing could be done owingto the crisis in the North. They opposed the formation of aStudent Organisation. The Nava Samasamaja and the othercapitalist (leadership) who said that solutions can be found byhaving discussions with the capitalist Government are fullyresponsible for the critical situation that has arisen today.”
10. “We who are fighting for the workers to capture Statepower invite progressives to attend a lecture on the topic “FreeEducation and Popular Frontism" to be delivered at Luxmi Hall,Chilaw, at 3.00 p.m. on the 26th of this month."
“Young Socialist of the Revolutionary Communist League,'Kamkaru Mawatha’."
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Document “Y1” is a tract in Sinhala running into 10 pages. Adetailed consideration of this would require considerable time. It hasbeen issued by the Political Committee of the RevolutionaryCommunist League. One of the petitioners is the organiser of the“Young Socialists” in Chilaw and is a member of the RevolutionaryCommunist League. Another petitioner is the brother of the abovepetitoner. The organisation is not a proscribed organisation and theState has also not stated that it has any links or affiliations with anyproscribed organisation.
The legal provisions permitting arrest and detention can be foundboth in the emergency regulations and in the Criminal ProcedureCode. Regulation 18(1) is worded as follows:-
“Any police officer, any member of the Sri Lanka Army, the SriLanka Navy or the Sri Lanka Air Force, or any other personauthorised by the President to act under this regulation maysearch, detain for purposes of such search, or arrest withoutwarrant, any person who is committing or has committed orwhom he has reasonable ground for suspecting to beconcerned in or to be committing or to have committed, anoffence under any emergency regulation, and may search,seize, remove and detain any vehicle, vessel, article, substanceor thing whatsoever used in or in connection with thecommission of the offence."
The material words for the purpose of this case are “whom he hasreasonable ground for suspecting to be concerned in or to becommitting or to have committed an offence under any emergencyregulation."
The powers of a police officer under the emergency regulationsare in addition to and not in derogation of his powers under theordinary law (regulation 54). The relevant provisions of the CriminalProcedure Code relating to this arrest is found in section 32(1 )(b) andis worded as follows:-
“any person who has been concerned in any cognizableoffence or against whom a reasonable complaint has been
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made or credible information has been received or areasonable suspicion exists of his having been so concerned."
To judge whether or not the complaint was reasonable or that areasonable suspicion or a reasonable ground for suspecting existedfor making the arrest, the state of mind of the person making thearrest at the time of making the arrest has to be ascertained. In thisconnection the court has to take cognizance of the fact that a state ofterrorism amounting to almost civil war is raging in the northern andeastern provinces of the country and that incidents like bombexplosions of a terrorist nature occur sporadically in other parts of thecountry where subversion cannot be ruled out. The safety of the Stateand the protection of the general public have now become more thanever the paramount duty of the State and of the armed forces and thePolice. A state of emergency is in existence and prevails in thecountry and it is the duty of the Police and armed forces to be asalert and vigilant as possible to defend the State and the People, fromarmed attack and subversion. In. that context, would it have beenconsistent with the vigilance expected of the Police to ignore thecomplaint made by two responsible officers of two responsibleinstitutions that some persons were planning to take steps to blow upa school and also create unrest and disturbances among thestudents and have it directed against the government? Was that not amatter eminently calling for action?
The Police team had promptly arrived at the scene of the offence.They have to take an instantaneous decision while in the field andwhile the action was proceeding. They had received two complaintsof an attempt or preparation to create unrest among students fromresponsible persons. At the scene there was a crowd of youngpersons and a meeting was about to begin. Posters (which cannot beregarded in isolation, but constituting part and parcel of thetransaction) were affixed at that place. Regulation 28(1) to which I willrefer later bans the affixing of posters without the permission of theauthorities. The petitioners were in possession of literature, which ona cursory glance could have appeared to be subversive. Document“X1" appeared to contain if not seditious statements at leaststatements that can be regarded as tendentious. “Y” was a ten-paged tract in Sinhala. All this material required examination which
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may have taken at least a few hours, if not.flays, and a matter inwhich legal opinion could well have been considered necessary. ButSergeant-Major Dhanapala Abeysinghe who actually made the arrestsays that on a cursory reading he found that this materialtransgressed the law and he took the petitioners into custody afterinforming them that they had violated the law in distributing materialthat brought the Government into hatred and ridicule.
In deciding on the validity of the arrest, the sole issue for the courtis the knowledge and state of mind of the officer concerned at thetime of the making of the arrest – Gunasekera v. de Fonseka,1221 andMuttusamy v. Kannangara<23). Our courts had held that –
a*
“a suspicion is proved to be reasonable if the facts disclosethat it was founded on matters within the police officer's ownknowledge or on statements by other persons in a way whichjustify him in giving them credit.” (Baba Appu i/. Adan Hamy)(24)
The principles and provisions relating to arrest are materiallydifferent from those applying to the determination of the guilt orinnocence of the arrested person. One is at or near the starting-pointof criminal proceedings while the other constitutes the termination ofthose proceedings and is made by the judge after hearingsubmissions from all parties. The power of arrest does not depend onthe requirement that there must be clear and sufficient proof of thecommission of the offence alleged. On the other hand, for an arrest amere reasonable suspicion or a reasonable complaint of thecommission of an offence suffices. I should however add that the testis an objective one. I am of the view that the latter requirement wasfulfilled in this case.
I find that the corresponding provisions of the U.K. law have beeninterpreted by the courts on similar lines. In Dumbell v. Roberts,™Scott, L.J. said:
“127 the constable shall before arresting satisfy himself thatthere do in fact exist reasonable grounds for suspicion of guilt.That requirement is very limited. The police are not called upon
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before acting to have anything like a prima facie case forconvicting … The duty of the police … is, no doubt, to be quickto see the possibility of crime, but equally they ought to beanxious to avoid mistaking the innocent for the guilty … Thepolice are required to be observant, receptive and open-minded and to notice any relevant circumstance which pointseither way, either to innocence or guilt. They may have to act onthe spur of the moment and have no time to reflect and bebound, therefore, to arrest to prevent escape; but where there isno danger of the person who has ex hypothesi aroused theirsuspicion … (escaping) … they should make all presentlypracticable enquiries from persons present or immediatelyaccessible who are likely to be able to answer their enquiries. Iam not suggesting a duty on the police to try to proveinnocence; that is not their function; but they should act on theassumption that their prima facie suspicion may be ill-founded.”
In Hussien v. Chog Fook Kam,m Lord Devlin said;
“Suspicion in its ordinary meaning is a state of conjecture orsurmise where proof is lacking: 'I suspect but I cannot prove.’Suspicion arises at or near the starting-point of an investigationof which the obtaining of prima facie proof is the end. Whensuch proof has been obtained, the police case is complete, it isready for trial and passes on to its next stage. It is indeeddesirable as a general rule that an arrest should not be madeuntil the case is complete. But if arrest before that wereforbidden, it could seriously hamper the police. To give power toarrest on reasonable suspicion does not mean that it is alwaysor even ordinarily to be exercised. It means that there is anexecutive discretion. In the exercise of it many factors have tobe considered besides the strength of the case. The possibilityof escape, the prevention of further crime and the obstruction ofpolice inquiries are examples of those factors …
… There is another distinction between reasonable suspicionand prima facie proof. Prima facie proof consists of admissibleevidence. Suspicion can take into account matters that could
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not be put in evidence at all. There is a discussion about therelevance of previous convictions in the judgment of LordWright in McArdle v. Egan..{27) Suspicion can take into accountalso matters which, though admissible, could not form part of aprima facie case. Thus the fact that the accused has given afalse alibi does not obviate the need of prima facie proof of hispresence at the scene of the crime; it will become ofconsiderable importance in the trial when such proof as there isbeing weighed perhaps against a second alibi; it wouldundoubtedly be a very suspicious circumstance …”
This wider discretion vested in the Police is logical and is alsonecessary for the proper performance of the functions of the Policeand for the maintenance of the law and order in the country.
Just as the Chief Justice has .stated that over-breadth in therestriction of the freedom of speech and expression has a peculiarevil, the evil of creating chilling effects which deter the exercise ofthat freedom, any restriction on the powers of the Police in this areaof action will also have a peculiar evil, the evil of creating a chillingeffect which will inhibit law-enforcement officers from the dueperformance of their duties which ensure the protection and safety ofthe citizens and their property. No police officer can predict the finaloutcome of a case or how a legal provision would be interpreted bythe court. If they are placed in peril and heavy damages awarded inrespect of their acts where prosecution were to fail, no police officerwould be inclined to perform his functions and may henceforthdecide to leave well alone not only doubtful cases but practically allcases, thereby bringing the administration of justice to a standstill. Inmy view such a construction of the powers of arrest was furthest fromthe minds of the legislators.
For these reasons I would hold that the arrest was legal and doesnot constitute a violation of the petitioners' fundamental right. But thisdoes not mean that the subsequent detention (except for reasonableperiod to scrutinise the material) can be excused. Any detentionbeyond what can be justified transgresses the law.
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Looking at it objectively, I agree with the Chief Justice that thematerial before us falls short of establishing the commission of anoffence by the petitioner, although in my view it was adequate tojustify the arrest. In this connection I should also like to add that weare here not dealing with a matter relating to judicial proceedings, butin regard to a detention by the executive authorities. The provision forthe production of the detainee before a judge at one stage of theproceedings is in fact more of a formal nature.
The Deputy Solicitor-General ultimately fell back on regulation28(1) of the Emergency Regulations to defend the conduct andactions of the respondents. Regulation 28(1) is worded as follows:-
“No person shall, without the permission of the InspectorGeneral of Police or any police officer authorized in that behalfby the Inspector General of Police, affix in any place visible tothe public or distribute among the public any posters, handbillsor leaflets.”
The distribution of the pamphlets was admitted by the petitionersand Dhanapala Abeysinghe had come to the conclusion that thematerial was seditious or tendentious.
While the arrest can be justified, different considerations as I havestated earlier apply when we have to determine whether or not anoffence under this provision can ultimately be made out.
It may have been possible to advance an argument to preservethe application of this regulation to the grounds referred to in Article15(7). But counsel for the State, in his desire to make it applicable tothe present case, took a mere ambitious course and sought todefend the regulation in the context of a wider application. The ChiefJustice has dealt with the validity of the regulation on the level of hissubmission and has come to the conclusion that the entire regulationhas to be declared invalid. I am in agreement with his conclusion. Imay add that counsel’s submission that the regulation is incompleteand has to be supplemented on the most vital and essentialcomponent of classification by the exercise of discretion by a policeofficer (who may even be an Inspector or Sub-Inspector and who is
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not even indicated in the regulation) is a furthec ground for holding itinvalid. Where a fundamental right has to be restricted or limited, itcan only be done by a law (including an Emergency Regulation), butsuch law must express and contain within itself all the vital andnecessary components relating to the restriction. An incompleteregulation omitting the most essential component and requiring that itbe supplemented by the discretion of an administrative officer cannotbe regarded as a "law” restricting the fundamental right within themeaning of Article 15. This is an additional ground for nullifyingregulation 28(1).
Since I hold that the arrest can be justified, there remains forconsideration only the matter of the detention (beyond a reasonableperiod necessary for processing the matter) and the transgression ofthe right of freedom of speech and expression. I yield to none in theprotection of those fundamental freedoms and in the appreciation oftheir importance and relevance to a democratic system ofgovernment. The fact that there was a reasonable basis for the initialaction of the arrest and that the Police have acted bona fide seems tothrow a somewhat different complexion on the matter and makes meview it from a standpoint different from that of the judgment of theChief Justice. This is not a case of the Police riding roughshod-overthe rights of citizens. The Police action was bona fide and within thescope of their functions, and the outcome of the case has dependedon a legal issue. While the detention after the period that would bereasonably required for processing the file and inquiry notes wouldbe unjustified, it appears that this delay is due to the authorities nottaking prompt steps in the matter. Making every allowance for delaysthat may be occasioned by reason of the present situation, yet I thinkthese petitioners have been deprived of their liberty for aconsiderable period of time. What is involved is a very important rightand they are entitled to relief.
In my opinion the transgression of the petitioners’ rights would besufficiently compensated and the ends of justice met if all thepetitioners are awarded a sum of Rs. 10,000/- each. The petitioner in
S.C. Application 109 had been a University lecturer at one time, butthis, I think, is no reason to draw a distinction between him and theothers as regards compensation. Each petitioner would also be
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entitled to costs in a sum of Rs. 3,000/-. This is a liability incurred bythe State and payable by the State.
L.H.DEALWJS, J.
I have had the benefit of perusing the judgments prepared by MyLord the Chief Justice and Wanasundera, J., and agree with theconclusion reached by Wanasundera, J. I set out my reasons in aseparate judgment.
I shall first deal with the question of the arrest and detention of thethree Petitioners.
Sergeant Major Abeysinghe, of the Chilaw Police Station whomade the arrest stated in his affidavit that upon a complaint made on26.6.86 by George Bertram Remius Silva, the Principal of St. Mary’sCollege, Chilaw, and by Singapulige Vincent, the Vice Principal ofAnanda College, Chilaw, that a public meeting had been organizedby certain revolutionary groups with a view to creating unrest amongthe students in the area, he set out with a police party in uniform atabout 2.30 p.m. and proceeded to Luxmi Hall, Chilaw, which was thevenue of the meeting, to investigate the complaint.
The complaint had been made at 10.30 a.m. that day at the ChilawPolice Station by the Principal and Vice Principal of the tworespective schools. They produced a letter, the envelope and aleaflet printed in red ink and handed them over to the Police forinvestigation. The letter was not produced in Court but its contentswere taken down in the Information Book by the Police Officer whorecorded their complaints marked 3R1 and 3R2. The letter had beenreceived by the Principal on the 23rd of June and ran as follows
“Comrade Brother George,
Are you not 'holding pot' to Jayawardena of Sri Lanka verymuch ? Your school will be blown up between the months ofJune and July. Comrade take care. We also live in Chilaw. Thisis Eelam Tigers."
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The Principal of St. Mary’s College in his statement said that onreceipt of the letter he stayed in the school in great fear for the safetyof his students and himself. He did not rush with the letter to thePolice but made secret inquiries into it himself. But when one of themembers of his staff produced before him a leaflet printed in red (x1)handed to him by one of the students, entitled “Defend the rights ofstudents and teachers”, published by members of a RevolutionaryGroup, stating in the last paragraph that the working class who arefighting to take over the government request the students to attend alecture on 26 June at 3 p.m. at Luxmi Hall, Chilaw on the subject“Right to Free Education and Popular Frontism” his fears of the threatconveyed in the earlier letter were apparently confirmed as day of thelecture fell between the months of June and July. He also felt that thestudents were being invited to the lecture “with some intention ofinciting and inducing them” (to action). It was then that he went thenext morning to the Chilaw Police Station along with Vice Principal ofthe other school with whom he had. discussed the matter and madethe complaint.
Sgt. Major Abeysinghe says in his affidavit that he proceeded toinvestigate the complaint made at 2.30 p.m. on 26.6.86. On his arrivalat Luxmi Hall with a Police Party, a group of persons who hadgathered there for the lecture took to their heels. He questioned thepetitioners who were present and found with them 46 copies of anewspaper entitled “Kamkaru Mawatha", a pamphlet issued by theRevolutionary Communist Party on Free Education (Y1) and adocument entitled “Kaleena Guru Handa Prakashana” (Y2). Y1 runsinto 10 pages, each containing 3 columns of reading matter inSinhala. He read the documents Y1 and Y2 and suspected that themeeting was organised with a view to causing hatred and to incitefeelings of disaffection against the Government. He thereforedecided to arrest the petitioners. Before doing so he informed themthat he was taking them into custody for distributing newspapers andother documents which brought the Government into hatred andcontempt, [which are offences under Emergency Regulations 26(a)and (d)]. Having arrested them he produced them at the ChilawPolice Station at 3.35 p.m. where he recorded their statements. Thepetitioner (in application No. 107/86) admitted in his statement thathe had distributed leaflets among the school children. Sgt. Major
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Abeysinghe was aware that permission of the Inspector General ofPolice had not been obtained for the distribution, (which is an offenceunder Regulation 28).
The petitioner in Application No. 107/86 is a member of theRevolutionary Communist League and had organized the lecture thatday. The petitioner in 108/86 is his brother, and the petitioner inApplication No. 109/86, had come there to deliver the lecture and is aCentral Committee Member of the Revolutionary Communist League.
These are the circumstances which led to the arrest of thepetitioners. The arrest was made in pursuance of the powers vestedin a Police Officer in terms of Emergency Regulation 18(1). Aspointed out by Wanasundera, J., the material words for the purposeof this case are, “whom he has reasonable ground for suspecting tobe concerned in or to be committing or to.have committed an offenceunder any Emergency Regulation.” I agree with all that Wanasundera,J., has said in regard to the state of terrorism prevailing in.the countryat the time and the quick decision Sgt. Major Abeysinghe had tomake that afternoon in arresting the petitioners. He had no time tomake a close scrutiny of the documents taken into custody by him.The Sgt. Major says in his affidavit that the complaint was that apublic meeting had been organized by a certain revolutionary groupwith a view to creating 'unrest' among the students in the area. Butthe word used in the complaint by Principal of St. Mary’s College is“inciting" (cSe^afS®^ SSs® sSszswsOsrf). The complaints 3R1 and3R2 are produced in the proceedings and it is on these complaintsthat the Sgt. Major set out for inquiry. They form part and parcel of hisaffidavit. The Sgt. Major’s affidavit is not a reflection of his own stateof mind on the complaint but simply a record of the contents of thecomplaint. When he therefore erroneously used the word "unrest" hemust be taken to have meant “incitement”, since that was the wordthat appeared in the complaint. The students were young andimmature and could easily have been roused to action. Thus, takinginto consideration the contents of the complaints of the Principal andVice Principal of the two schools, of which Sgt. Major Abeysinghehimself would have been aware on reading the Police informationBook before setting out for inquiry, and also taking judicial notice ofthe state of civil unrest prevailing in the country caused by acts of
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terrorism committed by certain groups of persons, I agree withWanasundera, J., that applying the objective test a rationalman would have had reasonable grounds for entertaining thesuspicion that led Sgt. Major Abeysinghe to make the arrest underregulation 18(1).
It was submitted by Counsel for the petitioners that that the arrestand detention were unlawful because the petitioners were notinformed of the reason for their arrest and detention. Sgt. MajorAbeysinghe in his affidavit has stated that he informed the petitionersthat he was taking them into custody for distributing documentswhich brought the government into hatred and contempt. Sgt. MajorAbeysinghe on a reading of the documents Y1 and Y2 coupled withthe background information that he had, entertained a reasonablesuspicion rightly or wrongly in good faith, that offences underEmergency Regulation 26(a), (d), 28 and 33 were being committed.The petitioners were therefore caught by him “in flagrante delicto" soto say, and there was no need for'him to have informed them of thereason for their arrest as they would have known why. Neverthelessthe Sgt. Major, out of an abundance of caution, did inform them of thereason for their arrest.
In Mrs. Sita Gunasekara v. A. T. de Fonseka & 2 others,m H. N. G.Fernando, C.J., while agreeing with the decisions in the cases citedby him, to the effect that when a Police Officer arrests a personwithout a warrant, he should, save in exceptional cases, Inform thesuspect of the true ground of arrest said at page 250 as follows
“According to the decisions which I have cited there areexceptional cases in which the requirement will not apply,particularly cases in which it is obvious in the circumstancesthat a person must necessarily know why he is being arrested… So also if a person is arrested under Regulation 19 of theEmergency Regulations (No. 6 of 1971, which is similar toEmergency Regulation 18 in the present case) when he iscommitting an offence, then the requirement that he beinformed of the ground for his arrest may not apply.” In thatcase the arrest did not fall within these exceptions. But in thepresent case it does. In any event the petitioners have beeninformed of the reason for their arrest. The Sgt. Major has made
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a prompt entry in his notes (3R3) that day itself, that heexplained the charge against the petitioners before taking theminto custody and I accept it.
I am therefore of the view that the arrest of the petitioners waslawful and did not constitute a violation of the petitioners’fundamental rights.
Senior Superintendent of Police, M. C. Mendis, states in hisaffidavit that on 27.6.86, Sarath Perera, the Officer-in-Charge of theChilaw Police Station informed him of the complaint made andproduced before him the documents taken charge of by the Police atthe time of the arrest of the petitioners on 26th along with Sgt. MajorAbeysinghe’s notes (3R3) and the statements of the Petitionersrecorded by the Police in connection with the incident. Afterconsideration of this material he was of the opinion that offences,under Emergency Regulations 26(a), (d) and 33 had been committedby the Petitioners and that the detention of the petitioners wosnecessary to complete the investigations. He accordingly actedbona fide and issued the order 3R4 for the detention of the peiii-cat the Chilaw Police Station for a period of one month from thatby virtue of the powers vested in him under the Emercy-.: yRegulation 19(2). He was informed by Inspector Sarath Perera vaithe detention order was handed over to the Petitioners as instructedby him.
The detention of a person arrested without a warrant underRegulation 18 can be justified if the detention is for search. Theexpression search is synonymous with investigation. Hence detentionfor further investigation is lawful, Nanayakkara v. Henry Perera & 3others,(28)
The investigation, according to the affidavit of Inspector SarathPerera was however completed by 15.7.86. During that period thepolice had sufficient time to scrutinize very Carefully the documentsthat they had taken into their custody. I agree with the Chief Justice,that there is nothing in the documents X, X1, Y1, Y2 “to think that arational and reasonable person could have been satisfied that thewritings would bring the President or Government into hatred orcontempt or incite feelings of any disaffection or that they could
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reasonably be characterised as subversive literature." It would nothave taken the Police investigators much time to arrive at thatconclusion themselves after due consideration of the documents.Even the Deputy Solicitor-General who appeared for the Attorney-General was hard put to it to support the view that the documentswere subversive or objectionable. He therefore fell back uponRegulation 28 in an effort to justify the detention.
I also agree with the Chief Justice and Wanasundera J., thatRegulation 28 is invalid so that the detention of the petitioners on thebasis of an offence committed under this regulation is unjustified.
In Nanayakkara v. Henry Perera & 3 others Xsupra) Colin-Thome,J., said at page 385
“It is manifest, therefore, that the detention of a personarrested without a warrant under Regulation 18 can be justifiedin law only if the detention is for further investigation. It would beunlawful to detain such a person for an unspecified andunknown purpose as this would be an infringement of Article13(4). It necessarily follows from this that no sooner the furtherinvestigation is concluded the suspect is entitled to his releasefrom detention without waiting for the duration of ninety days tobe over.”
In my view therefore, on the completion of the investigation intothis'complaint by 15.7.86, no offence under the EmergencyRegulations could have been disclosed and the petitioners wereentitled to be released from detention.
The Headquarters Inspector of the Chilaw Police Station, SarathPerera however produced the Petitioners in Applications Nos. 107/86and 109/86 before the Magistrate on a report and moved that they beremanded or released on bail. He also moved that an order be madein respectof the other petitioner in Application No. 108/86 who wassick in hospital. The Magistrate had no power under the EmergencyRegulations to grant bail during the period of the authoriseddetention of the petitioners under the Regulations, except with theprior written consent of the Attorney-General. (Regulation 64(1)). The
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Magistrate therefore made order remanding all three petitioners till
They were however released on bail on 7.8.86.
The Inspector further stated in the report that he was taking stepsto get instructions from the Attorney-General. But he had ample timeto do so from the date of the detention order on 27.6.87 (3R4). Acareful scrutiny of the documents especially Y1, and Y2 would nothave taken a couple of days. Indeed there appears to have been nonecessity to consult the Attorney-General on the matter because, theInspector had already formed the opinion that the petitioners hadcommitted offences under Emergency Regulations 26(a), (d), 27, 28& 33 when he made his report to the Magistrate and stated so. But aswas pointed out earlier, none of these offences could have beenmade out so that it was incumbent on the Inspector to have releasedthe petitioners when investigations were completed by 15.7.86without producing them before the Magistrate. Their detention from15.7.86 until they were released on bail on 7.8.86 is thereforeunjustified and unlawful.
It must be noted that the unlawful detention of the petitioners hasbeen made by executive or administrative action and not in ji:: ' '■proceedings. Even though the last order of remand was made %Magistrate it was not in the exercise of his judicial discretion, sines , ,shad none under the Emergency Regulations.
In the result I allow the application in part. I award the petitionerscompensation in a sum of Rs. 10,0001- each on account of theviolation of their fundamental rights during the period of their unlawfuldetention.'They are also entitled to costs in a sum of Rs. 3,000/-each. Since these infringements have been caused by executive cradministrative action the State is liable to make these payments.
SENEVIRATNE, J.
As these three applications dealt with the same matter, the arrestand detention of the petitioners in each of these applications, whodescribed themselves as members of the Revolutionary Communist
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League, a political party in Sri Lanka, a section of the InternationalCommittee of the Fourth International, the three applications wereconsolidated and heard. Initially these applications were heard by aBench of three Judges. In the course of the argument an issue aroseas regards the scope and validity of Regulation 28 of the Emergency(Miscellaneous Provisions & Powers) Regulations No. 6 of 1986 madeunder Section 5 of the Public Security Ordinance. Due to this legalissue My Lord the Chief Justice constituted a Bench of 5 Judges tohear these applications.
His Lordship the Chief Justice has adequately considered thisregulation in relation to Chapter 3 of the Constitution and held that itwas invalid. This Bench has unanimously agreed with that finding.
I have had the advantage of reading the judgment of My Lord theChief Justice regarding the other important matters that arose inthese applications to wit
the validity of the arrest of the petitioners made on 26.6.86,
the detention of these petitioners from 26.6.86 to 15.7.86 at thepolice station on a detention order made by the SeniorSuperintendent of Police Mr. Mendis,
the detention of the petitioners from 15.7.86 to 7.8.86 on courtorders made in terms of the Emergency Regulations 19 & 20,read with Regulation 64, which sets out –
“No Magistrate shall, except with prior consent of theAttorney-General release on bail any person suspectedor accused of any offence under any emergencyregulation".
Under the said Regulation 19 a person arrested and detainedin a police station under Regulation 18 –
“shall be produced before any Magistrate within areasonable time, having regard to the circumstances of
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each case, and in any event, not later than 30 daysafter such arrest”.
I must state that O.l.C. Police Station Chilaw and the SeniorSuperintendent of Police Chilaw have scrupulously observed therelevant regulations. The said Regulation 20 permits the detention ofa person in prison by a Magistrate “for a continuous period of 3months and shall not be released at any time prior to the expiry ofsuch period except in accordance with the provision of Regulation64". Regulation 64 has been observed and the petitioners who wereremanded by court have been released on bail on 7.8.86,presumably with the consent of the Attorney-General. Thus, thesethree petitioners have been detained from 26,6.86 to 7.8.86, a periodof 42 days on a police detention order and remand orders made bythe Magistrate.
His Lordship the Chief Justice had held that –
(a) the original arrest of the three petitioners bv Police Se e.Dhanapala Abeysinghe, and the later detention up to 7.&.S3was illegal and unwarranted.
I respectfully disagree with His Lordship the Chief Justice asregards the finding (a) above. I agree with Wanasundera, J. and L. H.de Alwis, J. that for the reasons set out by these two brother Judges,the original arrest on 26.6.86 and detention was perfectly legal andwarranted and is covered by Regulation 18(1), which sets out that –
“Any police officerarrest
without a warrant, any person who is committing or hascommitted or whom he has reasonable ground for suspecting tobe concerned in or to be committing or to have committed anoffence under any Emergency Regulation”. –
I emphasise the words “has reasonable ground for suspecting”,and agree that the circumstances which led to the arrest of thepetitioners gave Police Sgt. Dhanapala Abeysinghe “reasonableground for suspecting”. My brother Judges Wanasundera, J. and DeAlwis, J. have held that though initially the arrest was warranted the
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detention became illegal later due to the unduly long delay ofdetention particularly after 15.7.86 which made the detention illegalunwarranted as there was sufficient time for the authorities toconsider whether the petitioners had committed any offence underthe Emergency Regulations. This Bench has unanimously agreedthat the documents relied on by the respondents to justify the arrestand detention to wit – Y1 & Y2 recovered from the petitioners are notwritings coming within the Regulations 26{a), 26(d) and 33, in thatthose writings do not contain any subversive literature which is likelyto “arouse, encourage or promote feelings of hatred or contempt to
the government,likely to incite any person
to take any steps towards the overthrowing*^ the government". Iagree with my brother Judges Wanasundera, J. and De Alwis, J. thatthe prolonged detention of these petitioners, that js for a greaterlength of time than necessary in the circumstances, to consider thenature and effect of documents Y1 and Y2 made the detention of thepetitioners illegal and unwarranted. I agree with Wanasundera, J.“that this is not a case of the police riding roughshed over the rightsof citizens. The police was bona fide and within the scope of theirfunctions and the. outcome of the case has depended on a legalissue". I agree that the transgression of the petitioners’ right would besufficiently compensated and ends of justice met by the award toeach petitioner a sum of Rs. 10,000/- and award as costs a sum ofRs. 3,000/-. The Applications are accordingly allowed.
Arrest legal.
Detention after 15.7.1986 illegal.
Compensation Rs. 10.000/-.
Regulation 28 ultra vires.