M. N. D. PERERA vs. BALAPATABENDI SECRETARY TO THE PRESIDENT AND OTHERS

023-SLLR-SLLR-2005-V-1-M.-N.-D.-PERERA-vs.-BALAPATABENDI-SECRETARY-TO-THE-PRESIDENT-AND-OTHERS.pdf


M.N.D. PERERAvsbaL'apatabendi. secretary tq the president and others
SUPREME COURT
WIGNESWARAN. J. , ,
TlLAKAWARDENA, J. AND .
DISSANAYAKE, J.
S.C. (F.R.) NO. 27/2002
APRIL 28TH AND SEPTEMBER 8, 2004
Fundamental Rights -Appointment ot the Prime Minister – Article 43(3) of theConstitution – Whether the function at the President's House for the taking ofthe Prime Minister's oaths was a public function – Prohibition of petitioner fromattending the function – Articles 12(1). 12(2) and 14(1) (a) of the Constitution.
The petitioner was the news Editor of the Teleshan Television Net Work (Pvt.)Ltd. (TNL).
v j
After the General Election of 5th December 2001 Mr. Ranil Wickremasinghewas.appointed Prime Minister (PM) by the President under Article 43(3) of theConstitution and he was to be sworn in as PM on 9.12.2001.
The petitioner informed the Director of Information (3rd respondent) particularsof his identity (NIC) and others who were due to accompany him to cover theevent.
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.Balapatabendi, Secretary to the President and others
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When the petitioner and his party visited the President’s House they were bodysearched along with their equipment by the security division of which the 2ndrespondent was the Superintendent of Police and were taken to the President'sHouse ; but the’Deputy Inspectors-General of Police of the Presidential SecurityDivision told them that the President had instructed that media personnel fromthe 'TNL”. “Ravaya” newspaper and ‘The Leader" Newspaper should not beallowed in the President’s House that afternoon.
In the result the petitioner and his crew were precluded from covering theswearing in of the Prime Minister.
Held (Dissanayake, J dissenting):
The President’s House is not merely the private living quarters of thePresident, and for the swearing in of the Prime Minister the occasion wasa public function at the President’s House to which the media was entitledaccess.
By excluding the petitioner and his crew from attending the said functiontheir rights under Articles 12(1), 12(2) and 14(1 )(a) (Equality and freedomof speech and expression including publication) were infringed. Thoseprovisions were not restricted under Articles 15(2), 15(7) or 15(8). Hencethe order of the President to exclude them was illegal. NotwithstandingArticle 35 which conferred personal immunity on the President, therespondents who complied with such illegal order had to defend theiraction. This they failed to do.
Per Wigneswaran, J.
‘‘Decisions with regard to the personnel to be allowed to enter, the number tobe accommodated should have been professionally decided not on the piqueand punctilio of the President”.
Cases referred to :
Bernard Soysa and Others v AG. (1991) Sri LR 56, 58
Victor Ivan v Silva (1998) 1 Sri LR 340, 347
Prabha Dutt v Union of India AIR (1982) SC 6
Visuvalingam and Others vs Liyanage and Others No (1) (1983) 1 Sri LR203, 240.
Wijesuriya v The State 77 NLR 25. 56
Sunila Abeysekera v Ariya Rubasinghe Competent Authority and Others(2000) 1 Sri LR 314, 361
SCM. N. D. Perera vs Balapatabendi, Secretary,, to187
the President and others (Wigneswaran, J.)
Azam Khan v State of Aiidra Pradesh (1972) 2 ANDH WR 288
State of Maharasthra v Namdeo Dhanu (1972) Bom. L. R. 583
Perry Education Association v Perry Local Educators Association (46) US37.74L Ed 2d 794.
APPLICATION for relief for infringement of fundamental rights.
Laxman Perera with J. C. Weliamuna and Anuradha Gunawardena for petitioner.
Bimba Jayasinghe Tillekeratne, Deputy Solicitor General with Rajiv Gunatilleke,State Counsel for 2nd and 4th respondents.
Cur.adv.vult
October 19, 2004WIGNESWARAN J.
The Petitioner was the News Editor of the Teleshan Television Network(Private) Ltd. (TNL).
After the General Election held on 5th December 2001 Mr. RanilWickremasinghe was appointed Prime Minister and was scheduled to besworn in as Prime Minister at the President’s House on the 9th of December2001.
The Petitioner as on previous occasions faxed a letter to the Director ofInformation (3rd Respondent) giving the names and National Identity CardNumbers of the Petitioner and others who were to accompany him to“cover” the event.
Thereafter the Petitioner and his crew proceeded to the office of the 3rdRespondent. They were searched and identified by the officers of thePresidential Security Division. They then left for the President’s House inthe company of an officer of the Presidential Security Division.
At the entrance to the President’s House, the Petitioner and his crewmembers were not allowed to enter the President’s House by the officersof the President’s Security Division who were in charge at the gate. Thereason given for such refusal was that the 1 st – 3rd Respondents had notgiven permission for them to enter the President’s House.'
Such refusal was reported on the same day in the Sinhala and EnglishTNL news-cast. The Petitioner was compelled to borrow a video clipping
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from Swarnavahini (another Television Company) and telecast same overthe TNL news channel.
Such discrimination had affected the standing, business and income ofthe company of which the Petitioner was the News Editor. The Petitioner,complained of unlawful animosity, hostility and discrimination towards thePetitioner and the Company.
He alleged violation of his fundamental rights. The Supreme Court grantedleave tb proceed on the alleged infringement of Articles 12(1). 12(2) and14(1 )(a) of the Constitution. Leave was not granted in respect of the allegedinfringement relating to Articles 10 and 14(1)(g).
The Petitioner prayed for a declaration that the 1 st to 3rd Respondentswere not entitled to preclude the Petitioner and other authorized employeesof the TNL and their agents from entering the President’s House withnecessary equipment for the purpose of their legitimate business mentionedabove. He also asked for compensation and costs.
Apparently admitting refusal to the Petitioner and his crew, the learnedState Counsel appearing for the 2nd and 4th Respondents has submittedas follows –
Swearing in of the Prime Minister is not a public function.
The President’s House is not a public place.
The Petitioner was not treated unequally.
His arguments summarized are as follows –
A public function or notIn terms of Article 30 of the Constitution the President is the Head ofthe Executive and the Government and the Commander – in – Chief of theArmed Forces.
In terms of Article 43(3) the Prime Minister'is appointed by the President.Entering upon a public office, the Prime Minister must subscribe to theoath/affirmation set out in the Fourth Schedule to the Constitution. Takingor making such oath/affirmation prior to entering upon the duties of suchoffice does not have to be at a public function. The Constitution does notspecify unlike in the case of the President (Article 32(1)) or Judges of the
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Higher Judiciary (Article 107(4)) as to how a Prime Minister should'take ormake oath or affirm. The President and the members of'the Higher Judiciaryare required to take or make oath/affirmation before a certain official. Notso the Prime Minister.
A public function is one which is open to the public to attend. Since thePrime Minister is not stipulated to take or make oath/affirmation before aparticular official he could take or make such an oath/affirmation at a non-public function. If he takeSor makes oath/affirmation in a placewhere thepublic shall have general access, then it would become-a public function.'But since he need not take or make oath/affirmation before any officialpublicly the occasion of his oath/affirmation does not become a publicfunction.
, The above said argument is connected to the next argument .as towhether the President’s House is a public place which would be set outpresently. What the learned State Counsel says in effect regarding hisfirst submission is that a Prime Minister is not mandated to take or makeoath/affirmation before a specific official. But he could take or make oath/affirmation in a public.place but such place should be open to the public.Since the Prime Minister in this instance took or made oath/affirmation inthe President’s House, it being not a public place the swearing in of thePrime Minister was not a public function. Hence the next argument needsto be considered.
Is the President’s House a public place?Public have no access to all properties owned by the State. Militarybases, official residences are some examples mentioned where pubic arenot allowed free access. Learned State Counsel quotes Justice MarkFernando in Bernard Soysa & Others.,Vs. AG(n and says ”… whqt ispermissible in a traditional public forum or a semi public forum, is notnecessarily permissible in other public places." He submits that thePresident’s House is public property which is not by tradition or designationa forum for public communication. It is the official Residence of the Headof State and the public have no right of access to it without invitation andpermission of access. It is in effect not a public place.
If it is not a public place then the Petitioner should have had an invitationto enter the President’s House. The learned State Counsel submitted that
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the Petitioner had no invitation to enter. There was in fact no obligation onthe part of the President to allow access to the Petitioner. Therefore thePetitioner has no right of access to the President’s House. If the generalpublic had not right of access to the President’s House, the Petitioner norhis media institution could not have had any such right, (vide Victor IvanVs. Silva™)
Referring to the Indian Case of Prabha Dutt Vs. Union of India™ thelearned State Counsel pointed out that in that case the prisoner was willingto be interviewed whereas the President in this instance had not consentedto the presence of the Petitioner nor consented to being televised by him.
Was the Petitioner treated unequally ?As an extension of his argument that the occasion was not a publicfunction and that the President’s House was not a public place the learnedState Counsel placed the argument that the Petitioner in any event wasnot treated unequally in terms of the Law, since allowing the Petitioner if atall would have been only a courtesy extended and not an obligation placedon anyone since he had no right of access. An unwanted person cannotforce himself into a public property which is not a forum for publiccommunication.
The abovesaid submissions would presently be examined.
The powers and functions of the President of the Democratic SocialistRepublic of Sri Lanka are spelt out in Article 33 of the Constitution asfollows:
“In addition to the powers and functions expressly conferred on orassigned to him by the Constitution or by any written law whether enactedbefore or after the commencement of the Constitution, the Presidentshall have the power –
to make the Statement of Government Policy in Parliament at thecommencement of each session of Parliament;
to preside at ceremonial sittings of Parliament;
to receive and recognize, and to appoint and accredit,Ambassadors, High Commissioners, Plenipotentiaries and otherdiplomatic agents;
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to keep the Public Seal of the Republic, and to make and executeunder the Public Seal, (he Acts of Appointrnept of the Prime Ministerand other Ministers of tpe Cabinet of Ministers, the Chief Justice andother Judges of the Supreme Court, such grants and dispositions oflands and immovable property vested in the Republic as he is by lawrequired or empowered to do, and to use the Public Seal for sealingpll things whatsoever that shall pass that Sqal I
fo declare war and peace; and
to do all such acts and things, nqt being inconsistent with theprovisions of the Constitution or written law, ps by international law,custom or usage he is required or authorized to do.”
It is functionally obligatory on the President to “appoint as.Prime.Ministerthe Member of Parliament who in his opinion js most likely to commandthe confidences Parliament" (Article 43(3)).
In terms of Article 43(2) the President shall be a member of the Cabinetof Ministers and shall be the Head of Cabinet of Ministers. It is becausethe President is deemed to be the Head of the Government and the Cabinetof Ministers that Article 32(1 j refers to the Chief Jpstjce or any other Judgeof the Supreme Court as persons before whom the President is to takeand subscribe the oath/affirmation set out in the Fourth Schedule to theConstitution. Article 107(4) reciprocates and reverses the roles whereinJudges of the Higher Judiciary take or subscribe to the Oath/Affirmationbefore the President.
Because the President is constitutionally thq Head of the Cabinet ofMinisters, the Prime Minister who is primus interp^res among the Ministersand such other Ministers have been referred together in Article 53. Thisdoes not in any manner detract the importance pf the office of the PrimeMinister. Inter alia Articles 37(1), 44(1), 45(1) and 46(1) confirm theimportance of the Prime Minister. In fact where the President and thePrime Minister belong to different political parties tpe stature and importanceof the Prime Minister who leads a party which has defeated the party ledby the President, thus showing confidence of the people in a party otherthan the party of the President, must necessarily bp fiigher than a lieutenantof the President from the same party. Whatever may be the contraryperceptions of a President and his party and h'S supporters may be, theleader of a different party who has received the majority of votes at a poll
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and whom the President per force has to appoint as Prime Minister interms of Article 43(3) must necessarily attract public adoration andattention. Thus the decision taken by the President in this instance toappoint Mr. Ranil Wickremasinghe to the post of Prime Minister was aconstitutionally mandated decision. It is in order to give effect to her decisionthat .the President decided to hold the swearing in ceremony in thePresident’s House, her official residence. In terms of Article 33 she wasagain mandated to make and execute under the Public Seal the Act ofAppointment of the Prime Minister. Therefore vyhat was to take place inher officiafresidence on the 9th of December 2001 was an official function,the venue for which had been decided by the President herself. Havingdecided that an official function is to take place in an official residence,except for considerations of security specifically raised such as animminent threat to life, limb or property, was it available for the Presidentto deny that the occasion was a public function ? Whether it was a publicfunction or not has to be ascertained from all the circumstances of theoccasion rather than weighting it in a water tight compartment. There hasbeen no complaint that the Petitioner or any one in his crew was a securitythreat. The swearing in of a new Prime Minister after an election was nodoubt an occasion for rejoice to majority of the voters in the country. Theoccasion was no doubt looked forward to be enjoyed by people at large,because the Prime Minister was a people's choice. He was even in thePresidents opinion the person most likely to command the confidence ofParliament. If the occasion was a private occasion then none of the othertelevising institutions had any business at the President’s House. So longas other televising institutions like Swarnawahini were granted permissionto “cover” the event, it is to be concluded that the occasion was a publicfunction but that discrimination had been shown probably due to someform of ill feeling. Even if private security considerations were the cause forsuch discrimination such decisions cannot be made in the air. They hadto be.factually verifiable. Otherwise such decisions could be consideredcapricious.
The 2nd Respondent stated as follows in paragraph 6(C) of his affidavitdated 09.04.2002.
..“Like any other person gaining entry to President’s House, media.personnel must also be invited. The procedure adopted with regardto the media accessing President’s House is as follows : A list ofnarries of media personnel who are to cover any event at President’sHouse is forwarded by the Director Information of the Government
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; Information bdpartment. Thereafter, officers' of 'the' Presidential’Security Division, visit the office of the said Directbf of Informationand check the identity of the'said^media pefsohriel'and aisb'checktheir equipment and do abody-search. Thereaften'the saidpersonnelare taken to President’s House undenthe.escortofi the: PresidentialSecurity Division so that,security is notbreached”..
The abovenamed. procedure, was gone through by theiPetitionerand hiscrew according to .the petition .and affidavit filed by the.iPetitiorier.: Thecontents of paragraph 9 of the petition has been admitted by the;2ndRespondent confirming that the said procedure was,followed on that day.Though the 2nd1 Respondent refers to various logistical shortcomings faced.oh b9;04.2001, the real reabbrifordebarring the Petitioner and his creW is'set'out: ih'paregraph 6(f) asfqliovys-
“In.thp meanwhile, at about 2;.15 p.m. that day, the Deputy Inspector.Gener.aLoT Police* ofHhe. Presidential: Security;Division; iMr/;lllangakoon, spoke to:me and informed me that Her Excellency trie';President,’.has.-instructedThat media personnel :from“TNL”,: the>“Ravaya” newspapercandlTlihe Leader”,newspaper should. not,be;allowed into .President’s House that afternoon: Tproduce.here.witlTmarked. 2R1, ai true .copy of;an affidavit, made, b.y> the said Deputy'Inspector General of Police, inoonfirmation. of the facts averred above’’..
There .is no.reference:.to any.-isecurity. threat anticipated from the’Petitioner’s .quarters. On.the: plpadings.of the Respondents themselvesthe source of authority for the disallowance seems to have been thePresident.
Article 35 of the Constitution provides onlyfor the personal immunity of;the President from proceedings in any Court of Law arid that too onlyduring his or her tenure of office..The President cannot be summoned toCourt to justify his or her action. But nothing prevents a Court of Law fromexamining the President’s acts. Justice Sharvananda (as he then was)said as follows in the case of Visuvalingam & Others Vs. Liyapage andOthers No. (1) (a) FulfBench’cohsistirig of’nine' Judges(4).';
“Actions of the executive are not above the law and can certainly bequestioned in a Court of Law ….'….. Though the President is immunefrom proceedings in Court a party who invokes the acts of the President'
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in his support will have to bear the burden of demonstrating that suchacts of the President are warranted by law; the seal of the President byitself will not be sufficient to discharge that burden”.
• In this case the 2nd Respondent has relied on the purported directive ofthe President to justify his action.
Justice Thamotheram in Wijesuriya Vs. The State<5) stated as follows :
‘The law is that a soldier is bound by law to obey the order of hissuperior so long as what is ordered is not manifestly and obviouslyillegal".
A directive from the President cannot be a defence to the 2ndRespondent if it was manifestly and obviously illegal. A leader of a sovereigncountry is not expected to be parochial nor vindictive nor spiteful what everthe provocations of his subjects might be, real or imaginary. Leaders nodoubt are human beings. But they are humans clothed with power andprivileges granted by their compatriots out of their love and respect. Thispower is not to be used to harass such compatriots. The Chapter onFundamental Rights as well as Article 35 of the Constitution have beenenacted to curb such harassment by the Executive which is clothed withtremendous power and privileges. Leaders in authority should not transgressthe fundamental rights of their compatriots by becoming subjective in theirattitudes and decisions. Complementarity the compatriots themselvesshould not harass their leaders at least while they are in office. Theyshould be allowed to do a job of work. Nor should minions take coverunder the provisions of Article 35 transgressing the law while claimingorders from “above”.
The Articles under which leave to proceed was granted by the Bench ofwhich His Lordship the Chief Justice was Chairman, related to Articles12(1), 12(2) & 14(1) (a) which read as follows :
12(1) “All persons are equal before the law and are entitled to the equalprotection of the law”.
12(2) “No citizen shall be discriminated against on the grounds of race,religion, language, caste, sex, political opinion, place of birth or any one ofsuch grounds.
14(1 )(a) “Every citizen is entitled to the freedom of speech and expressionincluding publication
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the President and others (Wigneswaran, J.)
Article 14(1) (a) includes “publication". The rights of the media are thusincluded in this Article. The restrictions placed by the Constitution to theenjoyment of such Fundamental Rights are set out in Article 15(2), (7) and(8) of the Constitution. They are as follows :
15:2 The exercise and operation of the fundamental right declared andrecognized by Article 14(1 )(a) shall be subject to such restrictionsas may be prescribed by law in the interests of racial and religiousharmony or in relation to parliamentary privilege, contempt of court,defamation or incitement to an offence.
15:7 The exercise and operation of all the fundamental rights declaredand recognized by Article 12,13(1), 13(2) and 14 shall be subjectto such restrictions as may be prescribed by law in the interest 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. Forthe purposes of this paragraph “Law” includes regulations madeunder the law for the time being relating to public security.
15:8 The exercise and operation of the fundamental rights declared andrecognized by Articles 12(1), 13and 14 shall, in their application tothe members of the Armed Forces, Police Force and other Forcescharged with the maintenance of public order, be subject to suchrestrictions as may be prescribed by law in the interest of the properdischarge of their duties and the maintenance of discipline amongthem.
Justice Amerasinghe in Sunila Abeysekera Vs. Ariya Rubasinghe,Competent Authority & Others stated as follows –
“In addition to being “prescribed by law", restrictions on theConstitutional right of freedom of speech, in order to be valid, musthave a legitimate aim recognized by the Constitution. No doubt afterbalancing Interests, albeit at a very general, wholesale level, themakers of our Constitution have in. Article 15 made a thresholdcategorization, inter alia, of the varieties of speech that are notprotected absolutely, but which may be limited by law”.
Article 15(7) refers to ‘restrictions as may be prescribed by law’ and theSupreme Court has interpreted that in addition, restrictions must have a
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legitimate aim-recognized by the Constitution. Restrictions placed arbitrarilyby those in authority for subjective reasons or on account of personalselectivity or idiosyncrasies as in.this case, not appreciating the type ofjournalism or televising style of selected media organizations, cannot beconsidered as either restrictions “prescribed by law” or restrictions having■a ‘legitimate aim recognized by the Constitution”. Freedotti of speech andexpression entails recognition of diverse views and perceptions. The lawin it's wisdom-does not condone the silencing of opposite views sincepositions can be reversed and the victim might one day become thevanquisher. It was Voltaire who said that though he would not agree withanything someone said he would yet fight with all at his command ioestablish that other’s right to say so. Rights of the millions in this countryshould not be compromised at the altar, of personal preferences andprejudices of the Executive.
The.very reason trotted out by the learned State Counsel to preventpublic from attending a function at the President’s House is the reasonwhich favours media coverage of such an event. The public and the mediaare entitled to know the events as they occur at the swearing-in ceremonyof their Prime Minister. The journalists cover such events to impart suchinformation though their respective media. Though the President’s Houseis no doubt within the control and direction of the President and the publicat large cannot all be accommodated for a public function of such a nature,yet.all recognized media personnel after checking on their identities andalso after body checks if necessary have been conducted could havebeen allowed in order to ‘cover’ the event for publication or telecasting tothe people at large. After all the fundamental right of freedom of speechnot only protects individuals but also the society at large. Societal functionsto preserve free public discussion of Government affairs are also includedunder Article 14(1 )(a). The press and the televising institutions under thesecircumstances act as agents of the public at large. They disseminate freeflow of information and ideas. They function as surrogates for the public inthe modern context. Perception of fairness towards the new Governmentformed by a party different from the party to which the President belonged,would have been possible for the public to gather only if there was opennessin dealing with a media identified by the President as adversative. Theconcept of democracy demanded transparency, openness and fair play.Any reservations against the Petitioner or his employer on the grounds ofpolitical opinion should not have come between the President and thePeople.
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As pointed out by the learned counsel for the Petitioner, the President’sHouse is not exclusively a living quarters. It has an area lor public meetingsand an office complex. The living quarters no doubt should have beenrestricted for understandable reasons. The arguments of the learned StateCounsel that the whole of the President’s House should be considered asher living quarters and such restrictions be made to cover the entire buildingis unacceptable. No question of security nor privacy arose. In fact thePetitioner and his crew had been subjected to body checks and theiridentities ascertained. They were accompanied by a member of thePresidential Security Division. And in fact other media personnel had beenallowed. If considerations of privacy prohibited outsiders, Swarnawahini.(from whom the Petitioner obtained clippings later) and other televisinginstitutions should not have been allowed entry. There was no question ofthe President choosing whom she wanted, to attend the swearing-inceremony. Having chosen the Prime Minister herself, having chosen thevenue for swearing-in herself, having decided on the time of swearing inwith her approval, the question of who should attend the function and whoshould not have, would have been best left to the Presidential SecurityDivision and her Director of Information (2nd Respondent was the Directorof the PSD and the 3rd Respondent was the Director of Information).Decisions with regard to the personnel to be allowed to enter, the numberto be accommodated, the area where they had to be seated and so onshould have been professionally decided not on the pique and punctilio ofthe President.
Once the occasion has been identified as a public function, restrictionto enter could only have been for acceptable reasons such asconsiderations of security, logistical constraints and similar reasonsrecognized in Article 15(7). If the President considered the President’sHouse inconvenient for a public function of such a nature as the swearing-in of a newly elected and appointed Prime Minister, nothing prevented herto have had it in some other venue where her security as well as the rightof the public to view the event, both, could have been professionallybalanced.
The Petitioner and his crew have been singled but for discrimination forextraneous political or personal considerations and that from persons
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however highly placed cannot be condoned. In any event the 2nd and 3rdRespondents cannot take cover under directions which are manifestlyillegal. Such directions are illegal because the law does not condonevindictiveness and spitefulness in official acts, more so, on the ground ofpolitical opinion. If the entire media personnel were restricted for securityconsiderations which were immediate, imminent and real the Petitionermay not have been able to show discrimination against him. But in thisinstance there was naked discrimination as reflected in the affidavits filed.There were no reasonable nor valid grounds for refusal. I am unable toaccept that the swearing-in ceremony of the Prime Minister of this countrywas not a public function. I am unable to accept, under given circumstances,the President's House cannot be considered a public place. I am unableto accept that the Petitioner in this instance was not treated unequally.
I hold that inasmuch as the Petitioner and his crew were unreasonablyand without any valid reasons refused permission to “cover” the swearing-in ceremony of the Prime Minister on 09.04.2001 there has been violationof the Petitioner’s entitlement to the freedom of speech and expressionincluding publication (by telecasting) and also a violation of the Petitioner’sright to equality before the law and equal protection of the law. I hold anddeclare that 1st and 2nd and 3rd Respondents individually and/orcollectively have violated the Fundamental Rights of the Petitionerenshrined in Articles 12(1), 12(2) and 14(1) (a) of the Constitution.
In my opinion the transgression of the Petitioner’s rights would besufficiently compensated and the ends of justice met if he is awarded Rs.5000 and accordingly award same. He would also be entitled to costs in asum of Rs. 2500. This is a liability to be incurred by the State and payableby the State.
TILAKAWARDENA, J.I agree with the pith and substance of the judgment of my brother judgeJustice Wigneswaran. I also wish to add that in all public and officialdecisions, personal preference has to be subjugated, and must accordwith the high standards of just decision making based on the fundamentalprinciples of impartiality, equality and objectivity. To act otherwise wouldbe to act unreasonably, to open the doors to arbitrary, capricious andsubjective decision making which must necessarily eventually erode the
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fundamentals of a free and democratic society, as well as pave the way forgross injustices, especially in an environment where political parties arepolarized.
* This just not only applies to the substantive decision itself but equallyapplies to the process, where the highest and best standards such asreasoned, transparent, clear and intelligible principles and values mustapply. By this not only would the recipient of a decision know that justicehas been rendered to him or her, but it would be manifest and apparent tohim or her to see and understand that the decision is just. These standardswould also prevent and bar other persons from even unconsciouslyperverting, misleading or even indirectly manipulating those in authoritativepositions.
N.E. DISSANAYAKE, J.I have had the advantage of reading the judgment, in draft of my brotherWigneswaran, J with which I find myself unable to agree.
The Petitioner by way of his petition and affidavit complained to Courtthat on 9th December 2001 he was refused entry to President’s House toreport on and cover the swearing in of the Prime Minister, Mr. RanilWickremasinghe consequent to the Parliamentary Election held on 5thDecember 2001. The Petitioner claimed that such refusal of entry to thePresident’s House, constituted a violation of his fundamental rights interms of Articles 10,12(1), 12(2), 14(1 )(a) and 14(1 )(g) of the Constitution.Leave was granted only in respect of the alleged infringement of Articles12(1) (2) and 14(1) (a).
The 2nd Respondent, the Director, Presidential Security Division, in hisaffidavit has set out the facts and circumstances with regard to how thePetitioner was not allowed access to President’s House. The facts set outin the said affidavit have not been controverted by the Petitioner.
According to the contents of the affidavit of the 2nd Respondent accessto President’s House is by invitation only.
The Petitioner’s petition and affidavit does not speak of any invitationreceived by him to be present at the swearing in of tho Prime Minister on9th December 2001, at President’s House.
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The pith and substance of the position taken up by the Petitioner isthat, the swearing in of the Prime Minister was a public function and thatit was held in a public area of President’s House and therefore as a mediapersonnel he had a right of access to cover the aforesaid occasion.
I shall now examine the question whether the swearing in of the PrimeMinister is a public function.
In terms of Article 30 of the Constitution the President of the Republicis the Head of State, Head of the Executive and the Government andCommander in Chief of the Armed Forces.
The President assumes office in terms of Article 32(1) by taking anoath before the Chief Justice. Except in one instance where PresidentJayawardene took his oaths at a public place i.e., when he took oathsbefore the then Chief Justice at Galle Face Green, at other times this oathhas been taken within the precincts of the President’s House.
In terms of Article 43(3) of the Constitution the Prime Minister isappointed by the President and in terms of Article 44(1 )(b) of theConstitution, Ministers are appointed by the President. The mode ofappointment is not specified save that Article 53 of the Constitution statesthat a person appointed to any office referred to in Chapter VIII of theConstitution shall not enter upon the duties of that office until he takes andsubscribes to the oath/affirmation in the fourth schedule of the Constitution.
Article 107(4) of the Constitution with regard to appointment of the Judgesof the Superior Courts is more specific in that it states that any personappointed to be or act as Chief Justice, President, Court of Appeal or aJudge of the Supreme Court or Court of Appeal shall not enter upon theduties of his office until he takes and subscribes to the oath/affirmation inthe fourth schedule before the President.
In terms of Article 63 of the Constitution, no member shall sit and votein Parliament (except to elect the Speaker) until he takes and subscribesto the oath stated therein.
This is so even for members of the public service. In terms of Article61D (17th Amendment) of the Constitution, a person appointed to any
SCM. N. D. Perera vs201
Balapatabendi, Secretary to the President and others (Dissanayaka, J.)
office in terms of Chapter IX of the Constitution is required to take andsubscribe the oath in the fourth schedule..
All the aforesaid persons have to.take and subscribe the oath in thefourth schedule. It does no necessarily follow however that taking of theoath in the fourth schedule to the Constitution, prior to entering upon theduties of that office, has to be at a public function.
It is only with regard to the President who is the Head of the Executive{Article 32(1)} and the members of higher Judiciary {Article 107(4)} thatthere is any mention of the manner in which this oath is takem'
A public function is one which is open to the members of the public toattend, and it is held at a place to which the public have access.
In the case of Azam Khan /s State of Andra PradesH7) it was statedthat the word “public is ordinarily used with reference to a joint body ofcitizens. It means that it is shared in or participated in or enjoyed by thepeople at large. Otherwise it is common to all the people."
“In Stroud’s Judicial Dictionary 3rd ed p 19, the meaning of the wordspublic access to a place means a place open to all public in fact, whetherby right or permission” {State of MaharasthraVs NamdeoDhanm/8).}
The above passages are found at page 796 of K. J. Aiyar’s JudicialDictionary 13th edition.
In Dr. Sir Hari Singh Gour’s work on “Penal Law of India”, 11th editionVol 2, in reference to the charge of affray a public place has been definedat page 1479 as follows :
“4. What is a Public Place ? A public place is a place where thepublic go no matter they have a right to go or not. If the public resort toa place without let or hindrance, it is a public place, though strictlyspeaking, they may be trespassing. Whether a place is public or notdepends on the right of the public as such to go to the place, though ofcourse a place to which the public can go as of right must be a publicplace. The place where the public are actually in the habit of goingmust be deemed to be public for the purpose of the offence of affray, for
202Sri Lanka Law Reports(2005) 1 Sri L. R.
instance, places like railway platforms, theatre halls, and open spaces
resorted to by the public for purpose of recreation, amusement etc.
It is to be observed that in the case of the President and members ofthe superior courts, the only requirement is that the persons assumingoffice must take oath/affirmation before the Chief Justice and the Presidentrespectively. There is no doubt that it is of public importance. Howeverwhether it takes place at a public function depends on where it is held. Ifit is held at Galle Face Green or Independence Square or any such otherplace to which the public have access, which is a public place then theswearing in becomes a public function.
In the case of the Prime Minister, Ministers of the Government andPublic Officials there is no stipulation as with the President and membersof the higher Judiciary as to before whom the oath shall be taken. Article53 of the Constitution is silent on this point. It therefore connotes thatsuch an oath could be taken at a non-public function. Once again theplace at which the oath is taken, if it is a place to which the public haveaccess as of right, would determine whether it is a public function.
However by the very fact of Article 53 of the Constitution being silent onthe point to how the oath should be taken, implies that intrinsically, theswearing in does not take place at a public function.
Is the President’s House or a part of it a public place ?
This question assumes importance as the position taken by thePetitioner by way of his written submissions that the aforesaid swearingin, is a public function held in a public area of the President's House whichcan be accessed by the public, and the counter submissions made onbehalf of the 2nd and 4th Respondents to the effect that a ceremony, orevent will be a public function only if it is held in a public place to which themembers of public have access.
In the US case of Perry Education Association vs Perry Local EducatorsAssociation etaf9) it was held in determining First Amendment rights (theright to free speech) that the existence of right of access to public propertyand the standard by which limitations on such right must be evaluated,differ depending on the character of the property in issue.
SCm. n. D. Perera vs2°3
Balapatabendi, Secretary to the President and others (Dissanayake, J.)
It was held in that case that “in places which by long tradition orgovernment fiat have been devoted to assembly and debate, the rights ofthe State to limit expressive activity are sharply circumscribed. At oneend of the spectrum are streets and parks which have immemorially beenheld in trust for the use of the public and
A second category consists of public property which the State hasopened for use by the public of expressive activity. The Constitution forbidsa State to enforce certain exclusions from a forum generally open to thepublic even if it was not required to create the forum in the first place.
We have recognized that the First Amendment does not guaranteeaccess to property simply because it is owned or. controlled by theGovernment. United States Postal Services Vs Council of GreenburghCivic Assns. (Supra)
The said case of Perry was quoted by Fernando, J at page 58 in BernardSoysa and others Vs AG (Supra) He identifies three categories of publicplaces :
Traditional public fora.
Limited purpose-semi public fora,
Public property which is not by tradition or designation a forum forpublic communication.
At page 58, he stated “It is unnecessary to consider whether such aclassification is applicable in Sri Lanka. However, it demonstrates thatwhat is permissible in a traditional public forum, or a semi public forum, isnot necessarily permissible in other public places”.
Public property and public place do not have the same meaning. Propertyowned by the State is public property. However it does not mean that thepublic have access to all property owned by the State. Military bases,official residences, certain government buildings and offices are off limitsto the general public or have restricted access. Similarly official residencesof the Chief Justice and other judges are public property but not publicplaces and therefore not accessible to the general public.
It has been contended on the written submissions tendered on behalf ofthe Petitioner that areas of President’s House where she holds public
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meetings and the office complex are in the category of public places andno restrictions can be placed on members of public accessing the saidareas.
It is to be observed that there is no material before this Court to indicatethat the swearing in of the Prime Minister was held at an office complex ofthe President or in an auditorium. As a matter of fact by paragraphs 6(ii)and 7 of the petition, the petitioner reiterated that the swearing in functionwas held at the President’s House, which was conceded by him to be theofficial residence of the President
It is to be observed that the President’s House is dedicated as a buildingor property which is the official residence of the Head of State. It may havefunction rooms and office rooms of the Head of State. However, the characterof the building remains unchanged. It admittedly is the official residence ofthe Head of State. Therefore it would appear that the members of thepublic would have no right of access to it, without invitation and permissionof access, as it is not a public place.
Out of the 3 categories of public places enunciated by Fernando, J inBernard Soysa and others Vs AG (Supra) the President's House falls intothe 3rd category, i.e public property which is not by tradition or designationa forum for public communication. It is not in the same category as astreet or a park which falls into the first category nor a public institution towhich public have restricted access as to time and purpose which is thesecond category. The third category encompasses places to which thepublic have no right of access, Military bases, high security prisons, officialresidences and certain other government or public buildings come withinthis category.
It is of significance to note that the Petitioner has failed to provide anyproof that he possessed an invitation to enter President’s House. The 2ndRespondent had denied that the Petitioner had an invitation and this positionis accepted by the fact that no counter affidavits or documents have beenfiled to show that the Petitioner was invited.
The Petitioner has a right to use a public place, such as roads andparks. However in places where access is restricted he does not have aright to extract an invitation.
sc
205
M. N. D. Perera i/s
Balapatabendi,- Secretary to the President and others (Dissanayake, J.)
The Petitioner has failed to establish an obligation on the part of thePresident who was performing an official.function in her official residence,to allow access to the President’s House to the Petitioner. The Petitioner’sright of access would necessarily correspond to such an obligation on thepart of the President.
Therefore it is clear that the Petitioner had no right to be at the President'sHouse on the aforesaid date.
If the general public had no right of access to President’s House thenthe petitioner can claim no more merely because he represents a mediainstitutlion.
In the case of Victor Ivan Vs Silva (Supra) Fernando J said ;
“I don’t think that a newspaper enjoys any greater privileges of speech,expression and publication, or immunity from prosecution, than theordinary citizen. The freedom of the press is not a distinct fundamentalright, but is part of the freedom of speech and expression, includingpublication which Article 14(1 )(a) has entrenched for everyone alike.”
Let me now consider the question whether the Petitioner was treatedunequally by the 2nd and 4th Respondents and thereby violated Article12(1) of the Constitution.
It is significant to observe that Article 12 has to be referable to a right asdistinguished from a privilege or a courtesy which is extended. An invitationto attend a function in a non-public forum/place to which access is restrictedor prohibited to the general public is a privilege or courtesy that is extended.Equality or unequal treatment can be claimed for a right but not a for aprivilege or courtesy.
As access to the President’s House is not available to the generalpublic and access is only on invitation, the Petitioner can have no right tobe present thereat. There can therefore be no unequal treatment whenthere is no corresponding right of the Petitioner. The Petitioner can haveno right to a privilege or courtesy or invitation.
I reject the contention of the Petitioner that there was unequal treatmentin violation of Article 12(1), discriminatory treatment in violation of Article
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12(2) and his freedom of speech and publication guaranteed under Article14(1 )(a) have been violated by the Petitioner not being among the inviteesand other persons to whom the courtesy of participation at the aforesaidhas been extend.
I dismiss the application of the Petitioner with costs fixed at Rs. 5000/-.Relief granted.