LERINS PEIRIS v. NEIL RUPASINGHE, MEMBER OF PARLIMENT AND OTHERS

006-SLLR-SLLR-2000-V-1-LERINS-PEIRIS-v.-NEIL-RUPASINGHE-MEMBER-OF-PARLIMENT-AND-OTHERS.pdf


LERINS PEIRIS
v.
NEIL RUPASINGHE, MEMBER OF PARLIAMENT AND OTHERS
SUPREME COURTAMERASINGHE. J.
WIJETUNGA J. ANDGUNASEKERA. J.
SC APPLICATION 126/99 (FR)
19lh NOVEMBER. 1999
Fundamental rights – Expulsion of the petitioner from a workshop -Freedom of speech, assembly and association – Article 14(1) (a), (b) and (c)of the Constitution – Executive action.
The petitioner was the Chairman of a non-govermental organization.One of its objects was the establishment of the Muturajawela UnitedPeoples Organization (MUPO). The organization was aimed atimplementing the Muturajawela Master Plan for the development ofthe Muturajawela/Negombo Lagoon Area. There was some tensionbetween politicians and others regarding the Muturajawela Project,so much so, the President herself appeared to have decided to instructMembers of Parliament against interfering with the Master Plan imple-mentation process.
On 5.1.1999, the petitioner was invited by the Chairman of theCentral Environmental Authority to attend a workshop concerningthe Muturajawela/Negombo Lagoon System. While the petitionerwas seated at the meeting place the lsl respondent (Member ofParliament for the area) and the 2nd respondent (Chairman. WattalaPradeshiya Sabha) who were there with the 3rd-5lh respondents(Members of the Pradeshiya Sabha) told the petitioner that he shouldbe kept out of the meeting. When the petitioner protested, the2nd respondent and others assaulted him; and on the instructions of the1st and 2nd respondents the Manager of “the Marsh" the venue ofthe meeting and police officers requested the petitioner to leave andseek medical treatment. The petitioner left the place, made acomplaint to the Pamunuwa Police Station and received treatment atthe Ragama Hospital.
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Held :
The conduct of the respondents constitutes execu tive action, charge-able to the State.
The lsl, 2nd, 3rd 4"' and 5,h respondents violated thepetitioner's fundamental rights guaranteed by Article 14(a) and (c) ofthe Constitution.
Per Amerasinghe. J.
“Where a person acts under colour of his office or to the extent that in theopinion of the Court he or she appears to the public to be exercisingofficial functions, or panoplied with State power, such conduct may beattributable to the State as executive action."
Per Amerasinghe. J.
“The unfetted interchange of ideas from diverse and antagonisticsources, however unorthdox or controversial, however shocking oroffensive or disturbing they may be to the elected representatives ofthe people or any section of the population, however hateful to theprevailing climate or opinion, even ideas which at the time a vastmajority of the people and their elected representatives believe to befalse and fraught with evil consequences, so long as they are lawful,must not be abridged."
Cases referred to :
Velumuntgu v. A. G. and others F. R. D. Vol 1 p. 180 at p. 224
Wijeratne v. Vijitha Perera and Others SC Application No. 379/93 SCminutes 2nd March, 1994
Faiz v. Attorney – General and Others (1995) 1 Sri L R 372 at pp 380- 383
Deshpriya and Another v. Municipal Council. Nuwara Eliya and twoothers (1995) 1 Sri L R 262 at p. 369
Upaliratne and Others u. Tikiri Banda and Others (1995) 1 Sri L R 165at pp 204 – 205
Palihenage Don Saranapala u. S. A. D. B. R. Solanga Arachchi andOthers (1999) 2 Sri L R 166
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Wickramatunga v. Anurudeiha Ratwatle and Others (1998) 1 Sri L201 at 220 – 221
Rahnma Umma u. Beriy Premalal Dissanayake (1996) 2 Sri L R 293at pp 297 – 299
Channa Pieris u. Attorney – General and Others (1994) 1 Sri L R 1
U. S. v. Schiuirruter 279 US 644 – 653 (1928)
Red Lion Broadcasting Co. i>. F. C. C. 395 U. S. 367 S. Ct. 1794 L. Eel2d 371 (1961)
Federal Convnunications Conunission u. League of Women Voters 486U. S. 364 – 104 S. Ct. 3106 82 L. Ed. 278 (1984)
Abrams u. United States 250 U. S. 616 – 40 S. Ct. 7 – 63 L. Ed 1173(1919)
National Assocation for the Advancement of Coloured People u.Alabama Ex Rel. Patterson 357 U. S. 449 – 78 S. Ct. 1 1633 2 L. Ed1488 (1958)
Palko u. Connecticut 302 U. S. 319 – 658 S. Ct. 149-82 L. Ed 288(1937)
West Virginia State Board of Education u. Barnette 319 U. S. 624 – 63S. Ct. 1 178 – 87 L. Ed. 1628 (1941)
APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonesekere with J. C. Weliamuna for petitioner
Padmasiri Nanayakkarawith TillekasiriAlahakoon for 1 – 5 respondents.
Cur. adv. unit.
December 08, 1999AMERASINGHE, J.
There was a non-governmental organisation known as theJanodhaya Sajeewana Kendraya. The petitioner was theChairman/Chief Animator of the organization. The organiza-tion was a non-political community based centre. One of itsmain achievements was the establishment of the MuturajawelaUnited Peoples Organization (MUPO). The organization aimed
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at implementing the Muturajawela Master Plan initiated bythe Greater Colombo Economic Commission for the sustain-able development of the Muturajawela / Negombo Lagoonarea.
It would appear that there was some tension betweenpoliticians and others who were concerned with the implemen-tation of the Muturajawela Project. At a meeting with HerExcelleny the President at which the petitioner was present thesubject of political interfernce was taken up and the President,according to the minutes of the meeting, was to “instruct theMembers of Parliament from the area to refrain from interfer-ing with the master plan implementation process”.
The petitioner was invited by the Chairman of the CentralEnvironmental Authority in collaboration with the IntegratedResources Management Programme in Wetlands to attend aworkshop on the 5th of January 1999 on the establishment ofan Academic Network/Commissiort Research on the Inte-grated Muturajawela and Marsh and Negombo Lagoon Sys-tem.
According to the petitioner, he proceeded to the meetingplace and took his seat when one Chandana Perera informedthe petitioner that the 1st respondent was waiting outside tomeet the petitioner.
The petitioner went up to the 1st respondent who was withthe 2nd to the 5lh respondents and about 20 other persons.When the petitioner inquired why he had been summoned, the1st and 2nd respondents told the petitioner that he should bekept out of the meeting; otherwise the. 1st and 2nd respondentswould not allow the meeting to start and to continue. When thepetitioner protested and inquired as to what right the 1st to the5th respondents had to prevent the petitioner from participat-ing in the meeting, the 2nd respondent and others had as-saulted the petitioner. The 1st and the 2nd respondents told theManager of “The Marsh”, at which the meeting was to be held,
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that if the meeting was to continue the petitioner should beasked to leave. Police officers as well as the Manager appealedto the petitioner to go and seek medical treatment. Thepetitioner thereafter left the place and went to the PamunugamaHospital. After he had made a statement at the PamunugamaPolice Station, the petitioner was directed to the RagamaHospital where he was treated.
The 1st respondent states that he and the 2”“ to the 5,hrespondents were invited to participate in the meeting and thathe and the said respondents were Waiting outside the meetinghall until the proceedings commenced. Upon seeing thepetitioner he "inquired from him about the involvement of hisorganization in the project". The petitioner in turn questionedthe respondent as to what right he had to ask that questionand stated further that he had “done a better service in the areaand that he could not show his might to him" and that he wasnot "scared of thuggeiy ” and stated that the 151 respondent wasa “thug”. When the petitioner became abusive the crowd“became restless” and the Manager of the premises with thehelp of the Police “requested and persuaded the petitioner toleave the premises so that the meeting could proceed smoothly".The petitioner “being persuaded” left the premises and themeeting commenced thereafter. The Is' respondent was hurtby the petitioner's description of him as a “thug” and made acomplaint to the Pamunugama Police about the incident.
In the complaint made by the Is' respondent to the Policethe 1st respondent stated that the petitioner asked him why hewas looking for him. That is more consistent with thepetitioner's version that the 1st respondent sent for him ratherthan the 1st respondent's version that he happened to meet thepetitioner outside the meeting hall. The 1st respondent statedthat he asked the petitioner “about the involvement of hisorganization in the project.” One would have expected him asthe Member of Parliament for the area to have known of theinvolvement of MUPO in the Muthurajawela Project. In fact inparagraph 3 of his affidavit the 1st respondent admits that he
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was aware that MUPO was “participating in discussions overthis project.” The Is* respondent does not deny that thepetitioner was assaulted but states that he left the hall due to“persuasion” by the Officer in Charge of the Police Station andby the Manager of the meeting place. On the other hand, theMedico Legal Report furnished by the 1st respondent showsthat the petitoner's complaint that he was assaulted wasconsistent with his narration of the incident. In fact, thestatement by the petitioner to the Police as well as thestatement made to the Judicial Medical Officer, ColomboNorth on 6/1/99 show that some people present were morethan merely “restless”. Admittedly, there were no detectableexternal injuries and no abnormalities found after observationof any head injury. However, he suffered from tenderness inthe shoulder region which the Medical Officer stated couldhave been sustained due to an assault.
Admittedly, learned counsel for the respondents repeat-edly stated that the 1st to 5th respondents were present on theoccasion of the worskhop as invitees. So was the petitioner.The 1st to 5th respondents were there, in the words of learnedcounsel appearing on their behalf, as “elected representativesof the people.” They were not there as private citizens nor aslegislators but as persons whose views were sought on thepromotion and implementation of policy relating to certainaspects of an important project of public significance. As such,it might be reasonably inferred, they were seen by the convenorof the workshop, the Central Environmental Authority, as wellas by the police officer and Manager of the venue of the meetingwho were said to have “persuaded” the petitioner to leave theplace, as well as by the other invitees, as persons exercisingfunctions attached to their offices and positions. They werepresent and were seen to be exercising their official duties,business or functions.
In the circumstances, in my view, their conduct is therforechargeable to the State. Where a person acts under colour ofhis office or to the extent that in the opinion of the Court he or
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she appears to the public to be exercising official functions,or panoplied with State power. Such conduct may be attribut-able to the State as executive action. See per Sharvananda. J.(as he then was) in Velmumgu u. A. G. and Others.111 perFernando J. in Wijeratne v. Vijitha Perera and Others.121 perFernando, J. in Faiz u. Attorney General & Others.131 perFernando, J. in Deshapriya and Another u. Municipal CouncilNuwara Eliya and Two Others,141 per Amerasinghe. J. inUpaliratne and Others u. Tikiri Banda and Others.151 perAmerasinghe. J. in Palihenage Don Saranapala u. S. A. D. B. R.Solanga Arachchi and Others,151 per Amerasinghe. J. inWickrematunga v. Anuruddha Ratwatte and Others171 at pp.220-221; per De Silva. C. J. in Rahuma Umma u. BertyPremalal Dissanayake*81.
The respondents stated that the petitioner left the placebecause he was “persuaded" by a police officer and by theperson in charge of the meeting place to leave the premises. Hewas not prevailed upon by some legitimate process to leave theplace voluntarily. He did leave the place. Such a course ofaction, in my opinion, was forced upon the petitioner by thehostile circumstances created by the Is' to 5lh respondents.The petitioner it seems was a capable and virtuous fighter onbehalf of the rights of the people. Indeed it seems that preciselybecause he was a valiant and, moreover, formidable fighter ontheir behalf, representing as he did about 1000 families in thearea over which the 1st to 5lh respondents also had authority,the 1st to 5lh respondents who had their own programmeresented his participation at the workshop.
The upshot of the incident was that the petitioner couldnot participate at the workshop. And in the process thepetitioner was prevented from exercising his fundamentalrights of freedom of speech and expression, the freedom ofpeaceful assembly and freedom of association guaranteed byArticle 14(1) (a), (b) and (c) of the Constitution. Those are notabsolute rights; they are rights that may be curtailed in theextraordinary circumstances set out in Article 15 of the
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Constitution. It was no part of the case of the 1st to 5lhrespondents that their case fell within such extraordinarycircumstances. With regard to the alleged violation of theConstitution they offered no defence at all, except to suggestthat they had nothing to do with the non-participation of thepetitioner since the petitioner had been “persuaded” by theManager of the meeting place and the Police to leave the placeso that the meeting could go on “smoothly”..
The 1st to the 5th respondents had intimidated the peti-tioner by assaulting him or instigating or permitting theassault and inducing or encouraging the Police and theManager of the meeting place to “persuade” the petitioner toleave the premises, commending to him, perhaps, the viewthat 'The better part of valour is discretion” (Henry IV, Part I,v. IV. 120).
I am of the view that the Is' to 5th respondents therebyeffectively prevented the petitioner from exercising his rightsof freedom of speech, peaceful assembly and freedom ofassociation guaranteed by the Constitution.
Leave to proceed had been granted in respect of the allegedviolation of Article 11. The petitioner, an accredited repre-sentative of the public, was assaulted in public. However,learned counsel for the petitioner did not wish to press thematter, and therefore 1 make no observations in that regard.
‘The theory of freedom of expression, as Thomas Emersonobserved, "is a sophisticated and even complex one. It does notcome naturally to the ordinary citizen but needs to be learned.It must be restated and reiterated not only for each generation,but for each new situation." Perhaps the 1st to the 5threspondents, although they were "elected representatives ofthe people”, found it difficult to understand the system offreedom of expression as envisioned by the language ofthe Constitution. In Channa Pieris u Attorney General andOthers,m I endeavoured to explain at some lenght the intrinsicbases of the right to freedom of expression, namely, the desire
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to discover the truth, the need of every man and woman toachieve personal fulfilment, and the demands of a democraticregime. It seems that the case before me calls for a reiterationof what was said in Pieris. Instead of burdening this judgmentwith a repetition of what was said. I would call attention to theobservations made in that judgment at pages 130-142. Ishould, however, like to say the following by way of emphasis,having regard to the fact that learned counsel repeatedlyreferred to the fact that the Is' to the 5th respondents were"elected representatives of the people".
As elected representatives of the people, they were admit-ted to office upon solemnly declaring and affirming or swearingto the best of their abilities to "uphold and defend the Consti-tution . . Article 4(d) of the Constitution provides that “thefundamental rights which are by the Constitution declaredand recognized shall be respected, secured and advanced byall the organs of goverment. and shall not be abridged,restricted or denied, save in the manner and to the extenthereinafter provided." The 1st to the 5lh respondents failed toadhere to the directions given in Article 4(d).
As the “elected representatives of the people", they ought,in my view, to have appreciated the fact that the continuedvitality of free speech is essential if democracy is to flourish andindeed if democratic institutions like Parliament and PradeshiyaSabhavas of which, withjustification, they proudly announcedthemselves to be members, were to survive.
The representative of the majority of electors are entrustedwith the powers of the State; but such powers are exercisedwithin a framework of constitutional restraints designed toguarantee to all citizens certain fundamental rights which areset out in Chapter III of the Constituion. These rights,including the right of free speech and the cognate rights offreedom of assembly and association, are important both asvalues into themselves, benefitting the individual, and ashaving an instrumental value, bringing aggregate benefits tosociety.
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Freedom of thought and expression is an indispensablecondition if Sri Lanka is to be more than a nominally repre-sentative democracy. Holmes, J. in U.S. v. Schwimner,(l0}observed that “If there is any principle of the Constitution thatmore imperatively calls for attachment than any other, it is inprinciple of free thought, not free thought for those who agreewith us but freedom for the thought that we hate.” Speech, inthe sense of expression by words or deeds is the way in whichthoughts are made known to others. Speech concerningpublic affairs is more than self-expression: it is the essence ofself-government. To make an informed and educated decisionin choosing his or her elected representative, in deciding tovote for one group of persons rather than another, a citizenmust necessarily have the opportunity of being informed andeducated with regard to proposed policies. Members of thepublic and their representatives, like the petitioner, must beable to freely and openly, without previous restraint of fear ofharassement, discuss such matters and obtain clarification soas to be able to form judgments affecting their own lives.Moreover, it is only by discussion that proposals adduced canbe modified so that measures desired by the voter can bebrought about. The 1st to the 5lh respondents it seems failedto notice that the right of free speech enhances the contribu-tion to social welfare, which enlarged the prospect for indi-vidual self-fulfilment.
Between elections, it is only through free debate andexchange of ideas that the elected majority can be maderesponsive to and reflect the will of the people. The election ofrepresentatives does not imply that they may do as they will.Members of the public must be free to influence intelligentlythe decisions of those persons for the time being empoweredto act for them in matters which may affect themselves. Everylegitimate interest of the people or a section of them shouldhave the opportunity of being made known and felt in thepolitical process. There are many matters of public concern,either because they arise in between elections and cannot bedecided by universal suffrage or because they are not based on
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political loyalties or preferences, are nevertheless matters onwhich the individual citizen must communicate his or herideas if representative democracy is to work. The evidenceadduced shows that the Muthurajawela United Peoples Or-ganization. of which the petitioner was the Chairman andChief Animator, manifested the qualities of an organizationconcerned with the rights of people in the relevant geographi-cal area. The health of a society of self-government is nurturedby the contributions of individuals to its functioning. Noperson or group of persons, not even majorities and electedrepresentatives of the people, can in my view, claim to have amonopoly of good ideas. Many a strange and singular ideahas in time, through argument and debate, had the power toget itself accepted as the truth. The unfettered interchange ofideas from diverse and antagonistic sources, however unor-thodox or controversial, however shocking or offensive ordisturbing they may be to the elected representatives of thepeople or any sector of the population, however hateful to theprevailing climate or opinion, even ideas which at the time avast majority of people and their elected representativesbelieve to be false and fraught with evil consequences, so longas they are lawful, must not be abridged.
There is a vital societal interest in the continued vitality offree speech. It is only the vigorous preservation of an uninhib-ited market place of ideas that will ensure that truth willultimately prevail. Cf. Red Lion Broadcasting Co. v. F. C. C.,1111Federal Communications Commission v. League of WomenVoters,"21. As Justice Holmes observed in Abrams v. UnitedStates,1131 “Persecution of the expression of opinions seems tobe perfectly logical. If you have no doubt of your premises oryour power and want a result with all your heart you naturallyexpress your wishes in law and sweep away all opposition. Toallow opposition by speech seems to indicate that you thinkthe speech impotent, as when a man says that he has squaredthe circle, or that you do not care wholeheartedly for the result,or that you doubt either your power or your premises. But
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when men have realized that time has upset many fightingfaiths, they may come to believe even more than they believethe very foundations of their own conduct that the ultimategood desired is better reached by free trade in ideas – that thebest test of truth is the power of the thought' to get itselfaccepted in the competition of the market, and that truth is theonly ground upon which their wishes safely can be carried out.That at any rate is the theory of our Constitution." Anassumption underlying Article 14(1) (a) of the Constitution isthat speech can rebut speech, propaganda will answer propa-ganda and that free debate of ideas will result in the wisestpolicies, at least for the time being.
In the matter before us, not only did the actions of the Is'to the 5th respondents prevent the petitioner from exercisinghis right of free speech, but they also violated his associationalrights relating to his expressive activities. The effectiveadvocacy of both public and private points of view, particularlycontroversial ones, is undeniably enhanced by group associa-tion. Cf. National Association for the Advancement of ColoredPeople v. Alabama Ex rel. Patterson,"*'. Indeed, freedom ofassociation is an indispensable means of preserving otherindividual liberties like free speech. It has been desribed as“the matrix, the indispensable condition of nearly every otherform of freedom". Palko v. Connecticut,1151 see also ChannaPieris (supra) at pp. 143-147. According protection to collec-tive effort on behalf of shared goals is especially important inpreserving political and cultural diversity and in shieldingdissident expression from suppression led by the majority andtheir elected representatives. Justice Jackson in WestVirginiaState Board of Education v. Barnette,t,m cited with approval inWijeratnev. VijithaPereraandOthers. (supra) said; “Thosewhobegin coervice elimination or dissent soon find themselvesexterminating dissenters. Compulsory unification of opinionachieves only the unanimity of the graveyard. It seems tritebut necessary to say that the First Amendment was designedto avoid these ends by avoiding these beginnings."
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For the reasons stated in my judgment, I declare that thefirst, second, third, fourth and fifth respondents violated thepetitioner’s fundamental rights guaranteed by Article 14( 1) (a),
and (c) of the Constitution.
In the light of the observations made heretofore, theviolation of the petitioner's fundamental rights of freedom ofspeech, assembly and association deserves to be described asreprehensible.
1 make order that the first, second, third, fourth and fifthrespondents shall each pay the petitioner a sum of Rs. 50,000within three months of the date of this Order.
I make further order that the first, second, third, fourthand fifth respondents shall each pay the petitioner a sum ofRs. 5000 as costs within three months of the date of theOrder.
W1JETUNGA, J. – l agree.
GUNASEKERA, J. – I agree.
Relief granted.