MAHINDA RAJAPAKSA v. KUDAHETTI AND OTHERS

005-SLLR-SLLR-1992-2-MAHINDA-RAJAPAKSA-v.-KUDAHETTI-AND-OTHERS.pdf


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Mahinda Rajapaksa v. Kudahetti and Others
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MAHINDA RAJAPAKSAv.
KUDAHETTI AND OTHERS
SUPREME COURTBANDARANAYAKE, J.
AMERASINGHE J. ANDDHEERARATNE, J.
18 AND 19 JUNE, 1992.
Fundamental Rights – Articles 13(1) and 14(1) (a) of the Constitution – Freedomof speech – Arrest.
In September 1990 the petitioner went to Katunayake airport to board an aircraftbound for Geneva where the 31st session of the working group on Enforced orInvoluntary Disappearances was being held from 10-14 September. At the airport1st respondent disclosing the fact that he was an Assistant Superintendent ofPolice informed the petitioner that he wished to examine his baggage forfabricated documents which were likely to be prejudicial to the interests ofnational security, and which were likely to promote feelings of hatred or contemptto the Government, an offence under Regulation 33 of the Emergency(Miscellaneous Provisions and Powers) Regulations. The petitioner refused topermit the search and wanted to contact a lawyer. The first respondent did notobject to this. The petitioner then spoke on the telephone to Mrs. SirimavoBandaranaike the leader of the opposition and thereafter threw the bags at thefirst respondent and asked him to examine them. The first respondent examinedthe bags and recovered 533 documents containing information about missingpersons and 19 pages of photographs and issued a receipt for them which wascountersigned by the petitioner. The petitioner however refused to make astatement to the police.
The petitioner’s complaint was that he was invited to address the “WorkingGroup” but that he was not able to present his case fully before that group. Theinvitation to him was as Secretary of the Committee of Parliamentarians forFundamental and Human Rights (which is an informal group of oppositionmembers of Parliament and not a committee of the House) to submit informationfor consideration in the preparation of the Working Group’s annual reports.
Held:
The invitation was neither an invitation to “address" the Working Group nor wasit an invitation to attend the meeting, nor was there any evidence that he had even
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an appointment to meet the Group. There was no evidence that the petitioner hadspoken at all at the meeting quite apart from the fact he was unable to present hiscase fully.
What the Working Group sought was information which would be an importantcontribution to its efforts to reflect in its report the allegations and evaluations,made by non-governmental organizations or general problems and situationsrelated to disappearances; what was sought was information of a general natureand not of a particular nature relating to individual cases.
The invitation clearly and without ambiguity set out the limited and specialpurpose for which the meeting was called. The meeting was concerned withgeneral issues and, if the petitioner did speak at all, he made no attempt to showhow the giving up of material prevented him from delineating the issues relevantto the meeting and presenting the factual contentions in an effective andmeaningful manner. On the other hand, in terms of the carefully structuredprocedures of the Working group, the material which he was unable to take withhim was of no relevance to the business of the meeting of the kind held in.Geneva, its deliberations and its deliberative process. The material which thepetitioner could not take with him was of evidential value only. As such it wasirrelevant as it was not an evidentiary hearing that took place at the meeting.Neither the presentation, distribution or publication of the material given over,namely information on individual cases, was necessary (if indeed permissible atall for the exercise of his right of free speech at that meeting. Even material of ageneral nature, which was the subject-matters of the meeting, was requested, interms of the invitation, to be submitted before August 20,1990 about three weeksbefore the meeting. The material was taken by the 1st respondent on 11thSeptember 1990, a day after the meeting had commenced.
The material.given by the petitioner to 1st respondent was important and valuableand even relevant at other times and in other ways and not on the occasion ofthe meeting of 10-14 September. All of the materials, but two forms, werereturned to the petitioner on 14 October 1990. The other two forms were returned,after reference to the Attorney-General for advice in February 1991. The materialgiven over could have been sent to the Working Group at any time, unlike thegeneral observations called for inclusion in the preparation of the annual report.
Per Amerasinghe, J. “in my view, if the expression of thoughts and beliefs, thoughnot absolutely prohibited or prevented, is directly, definitely and distinctly, in areal, concrete and sufficiently palpable way, and not merely fancifully orinconsequentially, chilled or impaired or inhibited, without lawfully warranted
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justification. I should hold that Article 14(1) (a) of the Constitution is violated, andgrant appropriate relief and redress. However, the right to speak must be tailoredto the occasion. It cannot be considered in the abstract or in a vaccum. One maybe entitled to speak but only on a particular subject on a given occasion. Onemay be permitted to speak but only at an appointed time. One may be onlypermitted to orally say certain things on one occasion but permitted to table orpublish certain written material only on another. One may speak but only duringthe time allocated. These limitations and other constraints are accepted withoutdemur, so that the exercise of the right of free speech might at all serve itspurposes. Statements that meet the test of admissibility and relevance qualify forutterance. But not all that comes into the brain of a speaker. Every speaker isfamiliar with the procedure of being cut down by the chair upholding a point oforder."
As for the question of arrest, there was no imprisonment or forced confinementor durance or restriction of movement by reason of being placed in the custody ofthe law. He was not forced to abandon his journey and ordered to go elsewhere,to Police Stations and other designated places under surveillance and to remainunder the control and coercive directions of law enforcement personnel or anyother authority. He was not required to be in the presence or control of the firstrespondent or other officers of justice or law enforcement at any time even at theAirport. He was not in their keeping. There was no restraint of his freedom ofmovement by actual or threatened coercion. He was by no means coercedphysically or by word or deed into a state of submission. Admittedly he compliedwith the proposal to leave the documents behind, not spontaneously but becauseit was suggested or prompted by the 1st respondent. The petitioner gave up thedocuments choosing between his options without duress or intimidation andwithout fear of losing his liberty by being placed in custody of the law. He did nothave to choose between giving up the document or being imprisoned, confinedor placed in the custody of the law. After giving up the suspicious documents inhis possession he went on his way to Geneva as planned. Although the detentionmay have been irritating and irksome there was no arrest within the meaning ofArticle 13(1) of the Constitution and therefore the question of giving reasons forarrest did not arise.
It is not every detention or delay in going on, nor the imposition of conditionsincluding the requirement to hand over or leave behind certain things, nor eventhe prevention of going on that constitutes an arrest in the relevant sense. PerAmerasinghe, J. “However, in my view, in order to sustain the petitioner’s claimthat his fundamental right of freedom from arrest granted by Article 13(1) of the
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Constitution has been violated, he must establish that there was an apprehensionof his person by word or deed and an imprisonment, confinement, durance orconstraint by placing him (such apprehension and placing having been signifiedby physical action or by words spoken or by other conduct from which it mighthave been inferred) in the custody, keeping, control or under the the coercivedirections, of an officer of justice or other authority, whether the purpose of sucharrest was to enable the petitioner to be available and ready to be produced toanswer an alleged or suspected crime or to assist in the detection of a crime or inthe arrest or prosecution of an offender or some such or other purpose of theofficer making, or authority ordering, the arrest. I do not intend this to be adefinition of arrest. A definition, I suppose, must await the wisdom of the future."
Cases referred to:
Namasivayam v. Gunawardena (1989) 1 Sri LR 394.
Piyasiri and Others v. Nimal Fernando, A.S.P. and Others (1988) 1 Sri LR 173.
Grainger v. H///( 1838) 5 Scot 561 575.
Warner v. Riddiford (1858) 4 CB (N5) 180.
Somawathie v. Weerasinghe and Others [1990] 2 Sri LR 121.
Withanage Sirisena and Others v. Ernest Perera and Others [1991] 2 SriLR 97.
Youngstown Sheet and Tube Co. V. Sawyer (1952) 343 US 579.
Goldwater v. Carter (1979) 444 US 996.
Immigration and Naturalization Service v. Chadda (1983) 462 US 919.
Dames and Moore v. Regan (1981) 453 US 654.
Haig v. Agee (1981) 453 US 280.
APPLICATION for relief for violation of fundamental rights under article14(1) (a) and 13(1) of the Constitution.
R. K. W. Goonesekera for the petitioner.
Upawansa Yapa, Deputy Solicitor-General for respondent.
Cur. adv. vuit.
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28th July, 1992.
AMERASINGHE, J.
In this matter, leave to proceed had been granted to the petitionerin respect of the alleged infringement of the fundamental rightsguaranteed by Articles 12, 13(1), 13(2) and 14(1) (a) of theConstitution.
Articles 12 and 13(2)
At the hearing, learned Counsel for the petitioner informed theCourt that he did not wish to proceed with the matters pertaining toArticles 12 and 13(2) and that he wished to confine himself toseeking relief and redress in respect of the alleged violations ofArticles 13(1) and 14(1) (a) of the Constitution. This application inrespect of the alleged violations of Articles 12 and 13(2) of theConstitution is, therefore, dismissed.
Articles 14(1) (a)
According to paragraph 2 of his affidavit, the petitioner is aMember of Parliament belonging to the main opposition group, an“active campaigner for the protection of human rights”, and theSecretary of the Committee of Parliamentarians for Fundamental andHuman Rights.
On 11th September, 1990, the petitioner went to KatunayakeAirport to board an aircraft bound for Geneva where the 31st sessionof the Working Group on Enforced or Involuntary Disappearanceswas being held from 10-14 September. When the petitioner arrivedat the Airport, the first respondent, after disclosing the fact that hewas an Assistant Superintendent of Police, informed him that hewished to examine his baggage. The first respondent wished toexamine the bags because, as he explained in his affidavit, he hadinformation that the petitioner was attempting to take with him“fabricated documents which were likely to be prejudicial to theinterests of national security and which were likely to promotefeelings of hatred or contempt to the Government, an offence underRegulation 33 of the Emergency (Miscellaneous Provisions andPowers) Regulations." The petitioner informed the first respondent
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that he had certain documents, photographs and forms pertaining tothe deaths or disappearance of, and injuries caused to, certainpersons which he was taking to be produced at a conference inGeneva, which were not “offensive or subversive”, but intended to beused to “promote the protection of human rights in Sri Lanka."(Paragraph 7 of the petitioner's affidavit). The petitioner refused topermit a search of his bags and wanted to contact a lawyer. The firstrespondent did not object to this. The petitioner then spoke on thetelephone to Mrs. Sirimavo Bandaranaike, the Leader of theOpposition, and threw the bags at the first respondent and asked himto examine them. In the words of the first respondent (Paragraph 6(b)of his affidavit):
“I searched the leather bag in his presence and on top of theleather bag were some rice, dhal, chillies, dried fish and sometins of salmon. Underneath were some clothes and at thebottom of the bag there were 11 bundles of papers which thepetitioner informed me, contained photographs and particularsof the missing persons. Among these bundles was a bundlewith pictures of dead bodies.”
The petitioner was asked to make a statement. However, nostatement was recorded because, the petitioner refused to make astatement. The first respondent then took charge of 533 documentscontaining information about missing persons and 19 pages ofphotographs. A receipt (P2) was issued by the first respondent,countersigned by the petitioner, for the documents and photographs.
What was the result? In paragraph 10 of his affidavit the petitionerstates as follows: •
In consequence of the 1 st respondent taking into custody thesaid documents, I was prevented from presenting, distributingand or publishing them at the Conference in Geneva, thusviolating my fundamental right of freedom of speechguaranteed by Article 14(1) (a) of the Constitution. As a result, Iwas not able to present my case fully before the Committee.
Article 14(1) (a) of the Constitution provides that “Every citizen isentitled to the freedom of speech and expression includingpublication.”
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This case is somewhat different to those in which petitioners havecomplained that they were absolutely prohibited from speaking orexpressing themselves in writing. The petitioner was not, like Viola inthe Twelfth Night, faced with the possibility of casting away hisspeech, perhaps "excellently well-penned” and prepared with “greatpains” like Viola’s piece. There was no complaint that the text of hisspeech or notes for his speech for the business of the meeting weretaken from him. That might have been an altogether different matter.The complaint in this case is that the taking away of certain (onemight for the time being say “less critical”) documents prevented thepetitioner from expressing himself fully in delivering an address hemade. In my view, if the expression of thoughts and beliefs, thoughnot absolutely prohibited or prevented, is directly, definitely anddistinctly, in a real, concrete and sufficiently palpable way, and notmerely fancifully or inconsequentially, chilled or impaired or inhibited,without lawfully warranted justification, I should hold that Article 14(1)(a) of the Constitution is violated and grant appropriate relief andredress. However, the right to speak must be tailored to the occasion.It cannot be considered in the abstract or in a vacuum. One may beentitled to speak but only on a particular subject on a given occasion.One may be permitted to speak but only at an appointed time. Onemay be only permitted to orally say certain things on one occasionbut permitted to table or publish certain written material only onanother. One may speak but only during the time allocated. Theselimitations and other constraints are accepted without demur, so thatthe exercise of the right of free speech might at all serve itspurposes. Statements that meet the test of admissibility andrelevance qualify for utterance. But not all that comes into the brain ofa speaker. Every speaker is familiar with the procedure of being cutdown by the chair upholding a point of order. There is no novelty. Forinstance, one recalls that in 1593, in reply to the usual petition of theSpeaker, Sir Edward Coke, (Parliamentary History of England fromthe earliest period to the year 1803,1862), said:
“Liberty of speech is granted you, but you must know whatprivilege you have; not to speak everyone what he listeth orwhat cometh in his brain to utter; but your privilege is “aye” or“no”… Wherefore, Mr. Speaker, Her Majesty's pleasure is, that ifyou perceive any idle heads that will not stick to hazard their
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own estates; which will meddle with reforming the Church, andtransforming the Commonwealth, and do exhibit any bills tosuch purpose, that you receive them not, until they be viewedand considered by those who it is fitter should consider of suchthings and better judge them.”
Whether the petitioner’s expressive activity was so interfered withas to violate his right of speech would depend on the contextestablished in this case, including the nature and methods andcarefully structured procedures of the Working Group of theCommission on Human Rights on Enforced and InvoluntaryDisappearances, evolved over a number of years, after muchdiscussion and deliberation, by those who had considered suchmatters and judged them; and the terms of the notice he received,setting out the business to be transacted, as determined by theGroup in accordance with its objectives, principles and practices.
According to the evidence placed before us by the petitioner,special international concern with the problem of the "enforced orinvoluntary disappearance" of persons dates back to 1978, when theGeneral Assembly of the United Nations adopted Resolution 33/173entitled “Disappeared Persons", inter alia, calling upon theCommission on Human Rights to consider the matter and makeappropriate recommendations. On 29 February 1980, theCommission on Human Rights adopted Resolution 20 (xxxvi), interms of which a Working Group of five of its members wereappointed as experts in their individual capacities to examinequestions relevant to the enforced or involuntary disappearance ofpersons by way of promoting the implementation of GeneralAssembly Resolution 33/173. The Resolution of 1980 embodied thedecision that the Working Group, in carrying out its mandate, shouldseek and receive information from Governments, intergovernmentalorganizations, humanitarian organizations and other reliable sources.Governments were requested to co-operate with and assist theWorking Group in the performance of its tasks and to furnish allrequested information. The Working Group was requested to submitto the Commission on Human Rights a report on its activities togetherwith its conclusions and recommendations.
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Although the Working Group had been originally appointed for oneyear, its mandate was extended, and meetings of the Group wereheld from time to time at various places. According to a letter fromthe Chief of the Special Procedures Section dated 12 July 1990,addressed to the petitioner (P1), the 31st Session of the WorkingGroup was to be held in Geneva from 10-14 September 1990.
The petitioner’s complaint is that he was "invited to address theWorking Group” but that he was not able to present his “case fully"before that Group. P1 (which the petitioner submitted as the onlyevidence of an "invitation” to attend and address the meeting) was aletter inviting him as Secretary of the Committee of Parliamentariansfor Fundamental and Human Rights – which learned Counsel for thepetitioner explained was not a Committee of the House, but aninformal group of opposition members of Parliament – to submitinformation for consideration in the preparation of the WorkingGroup's annual report. The petitioner was also informed by P1 that,should he "or his organization be interested in meeting with theGroup during" the session, he should contact the Centre for HumanRights "in order to arrange a mutually convenient date and time.”There was no evidence that the petitioner had spoken at all at themeeting, quite apart from the fact that he was unable to present hiscase fully. We are to infer that he did speak from the so-called“invitation" to speak, viz., P1. This was neither an invitation to“address" the Working Group, nor was it an invitation to attend themeeting, nor was there any evidence that he had even anappointment to meet the Group. No agenda was produced. We werenot told when he spoke and who he “addressed". The speech at theGeneva meeting was central to his complaint. To submit the letter P1as the only evidence of the fact that he was invited to address theWorking Group or that he was expected to speak or did speak or thathe even had a definite opportunity of speaking to the Group was, tosay the least, to lean his case upon a slender reed.
According to what the petitioner referred to as his "invitation” (P1),the Working Group had decided, as it had done before, to requestnon-governmental organizations to forward “all information of ageneral nature, or reports providing an assessment of a situation in a
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given country.” The information sought was regarded as an"important contribution” to the efforts of the Working Group, at itsGeneva meeting between 10-14 September, 1990, “to faithfullyreflect in its report the allegations and evaluations made by non-governmental organizations on general problems and situationsrelated to disappearances." It was emphasized, and, (as the words“of course”, and “as you are aware”, seem to indicate), it wasassumed to be obvious, that what was sought for the purpose of thismeeting, concerned as it was with the preparation of its annualreport, was information of a general nature and not of a particularnature relating to individual cases. The letter (P1) said :
The aforementioned, of course, does not refer to individualcases of disappearances which, as you are aware, may be sentat any time during the year, and, if possible, immediately afterthe first internal steps to locate the missing person have beenunsuccessful.
As a notice, P1, clearly and without ambiguity, set out the limitedand special purpose for which the meeting was called. The meetingwas concerned with general issues and, if the petitioner did speak atall, he made no attempt to show how the giving up of the materialprevented him from delineating the issues relevant to the meetingand presenting the relevant factual contentions in an effective andmeaningful manner. On the other hand, in terms of the carefullystructured procedures of the Working Group, the material which hewas unable to take with him was of no relevance to the business ofthe meeting of the kind held in Geneva, its. deliberations and itsdeliberative process. The petitioner in paragraph 8 of his affidavitshows that he himself regarded the material given over to the firstrespondent as being of “evidential value only”. As such, it wasirrelevant, for the meeting did not approximate a judicial trial. It wasnot an evidentiary hearing. Neither the presentation, distribution orpublication of the material given over, namely information onindividual cases, was necessary (if indeed permissible at all) for theexercise of his right of free speech at that meeting. Even material of ageneral nature, which was the subject-matter of the meeting wasrequired, in terms of P1, to be submitted before August 20, 1990 –
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about three weeks before the meeting. The material was given by himto the first respondent on 11th September 1990, a day after themeeting had commenced.
I do not disparage the importance and value of the material givenby the petitioner. Reports on individual cases were certainly relevantto the work of the Group. They were indeed essential and welcome;at other times and in other ways, although not on this occasion for itsdecided and stated purposes. Human Rights fact-finding is aspecialized sphere in which standards and working methods havebeen carefully evolved, having regard to the goals of a particularfact-finding exercise at a given time. Fact-finding aimed at clarifyingdisputed facts arising in the context of specific human rightsviolations is carried out in conformity with formal complaintprocedures: Material relating to individual cases are prepared andsubmitted in a prescribed form in accordance with the directionsgiven in an Explanatory Note of the United Nations Centre for HumanRights bearing the reference CHR/WGEID/1987. The forms aredesigned to identify with particularity and reliability the informationrelevant to the specific purpose of tracing missing persons. It is clearenough from documents P3 A, B, C and D, filed by the petitioner toillustrate his averment that the 533 documents referred to by him inparagraph 8 of his affidavit end referred to in the receipt given by thefirst respondent (P2) when he took them over, are reports of individualcases in the prescribed, printed U.N. form. There are copies ofphotographs of the persons concerned attached to P3 A, B, C and D.The instructions state, inter alia, that "A photograph of the missingperson and annexes, such as habeas corpus petitions or statementsof witnesses, can be sent with the suggested form”. The petitionerhas referred in paragraph 8 of his affidavit to “thirty photographsattached to nineteen” other documents. However, he has neitherexplained what these were nor their relevance to the work of theGroup, then or at any other time. Mr. Goonesekere did concede,albeit somewhat later during his submissions, that some of thematerial given over was of doubtful relevance at all; while the otherdocuments taken over were being transmitted for consideration inresponse to the request for reports on individual cases and not inresponse to the request for general observations required for themeeting.
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The time and occasion for publishing reports of individual caseswas any time during the year but not, as it was made clear in P1, atthis meeting. All of the materials, but two forms, were returned to thepetitioner on 14 October 1990, receipt of which was acknowledgedby the petitioner (1R1). The other two forms were returned, afterreference to the Attorney-General for advice, in February 1991. Thematerial given over could have been sent to the Working Group atany time, unlike the general observations called for inclusion in thepreparation of the annual report: For the purpose of the individualreports in the prescribed form and annexed photographs inaccordance with the instructions given by the United Nations Centrefor Human Rights in document CHR/WGEID/1987, was to enable theWorking Group to communicate with the Government and others toobtain “clarification” of individual cases from time to time during, whatwas called, the “Group’s annual working cycle". (For a review of theactivities in relation to the processing of individual cases in relation toSri Lanka see paragraphs 281 – 306 of UN Document E/CN.4/1990/13). The State was not attempting to thwart the efforts of theWorking Group by withholding information, (as The petitioner’sreference to orders from “higher ups” might imply.). Learned Counselfor the petitioner, in demonstrating the character of the body whosemeeting the petitioner was to attend, emphasized the fact that theGovernment of Sri Lanka had always closely co-operated with it.Reference was made to paragraphs 12, 294 and 299 of DocumentE/CN. 4/1990/13, dated 24 January 1990, published by the Economicand Social Council of the United Nations. They show the extent of co-operation between the Working Group and other UN bodies dealingwith human rights and the Government of Sri Lanka. If the reports onindividual cases did have a bearing on the annual report underpreparation, they could, in terms of the instructions in P1, have beensent before the finalization of the annual report in December. Thepetitioner was reminded how and when information on individualcases were to be submitted, even though this was deemed to beobvious to the initiated. The giving over of the material on 11September, 1990 did not prevent him from submitting the reports onindividual cases at the appropriate time for due consideration, forthey were returned to him while their relevance and usefulness yetremained unimpaired and undiminished in any way.
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I am left with the definite and firm conviction that there was noviolation of the petitioner’s freedom of speech and expression :I cannot conclude that the petitioner was unable to explain his casefully for lack of the apprehended material when it has not beenestablished that he spoke at all. Moreover, having regard to what wasdemanded and expected of him, it has not been established that thematerial was necessary for discharging his duties as a speaker at theGeneva meeting. The petitioner has failed to show that it was evenreceivable. In fact, the evidence points to the probability that thematerial given up by him was irrelevant to the purposes of themeeting and were not admissible and publishable at all at thatmeeting. The subsequent release of the material enabled thepetitioner, and left him free, to publish the material, at a time and in amanner he was expected to do so, by those with whom he wished tocommunicate.
I therefore, dismiss the petitioner’s application in respect of thealleged violation of Article 14(1) (a) of the Constitution.
Article 13(1)
Article 13 (1) of the Constitution provides that ’’No person shall bearrested except according to procedure established by law. Anyperson arrested shall be informed of the reason for his arrest.”
The petitioner in paragraphs 4 and 5 of his affidavit stated as
follows :
4. When I arrived at Katunayake Airport on 11.9.90 to board theplane due to take me to Geneva, the 1st Respondent arrestedand took me into custody and detained me in the Airport for aperiod of about two hours from about 9 p.m. to 10.45 p.m. on11.9.1990. The action of the 1st Respondent was illegal andcontrary to law and in violation of Article 13 (1) of theConstitution as there was no reason to arrest and detain me, aperson of good character and not wanted in respect of anyviolation of the law of the land nor was there any warrant orauthority from a Court to take me into custody or search me.
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5. I was also not informed of the reason for my illegal arrest anddetention in violation of Article 13 (1) of the Constitution.
Learned Counsel for the petitioner, citing the decisions inNamasivayam v. Gunawardenaw and Piyasiri and Others v. NimalFernando, A.S.P., and Others<S), submitted that the act of delayingand preventing him from proceeding as it pleased the petitioner,constituted an “arrest" within the meaning of Article 13(1) of theConstitution. I do not read those cases as supporting such aproposition.
In Namasivayam v. Gunawardena (supra), the petitioner wastravelling in a bus on his way to Nawalapitiya, when a police officerstopped him and ordered him to accompany him to GinigathenaPolice for questioning. The petitioner complied, and was releasedafter his statement was recorded. Sharvananda, C.J. (Atukorale and
A. G. de Silva, JJ. agreeing), held that an arrest in violation ofArticle 13 (1) of the Constitution had taken place.
His Lordship the Chief Justice said at p. 401 :
"The petitioner states that he was arrested on 28.7.86 whenhe was travelling in a bus, by the 3rd Respondent and that hewas not informed of the reason of his arrest. The 3rdRespondent in his affidavit admitted the incident but stated thathe did not arrest the petitioner. According to him he onlyrequired the petitioner to accompany him to the GinigathenaPolice Station for questioning and released him after recordingthe statement at the station. If this action constituted an arrest inthe legal sense, implicit in the 3rd Respondent’s explanation isthe admission that he did not give any reason to the petitionerfor his arrest. In my view when the 3rd Respondent required thepetitioner to accompany him to the Police Station, the petitionerwas in law arrested by the 3rd Respondent. The petitioner wasprevented by that action of the 3rd Respondent fromproceeding with his journey in the bus. The petitioner wasdeprived of his liberty to go where he pleased. It was notnecessary that there should have been any actual use of force;threat of force used to procure the petitioner’s submission was
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sufficient. The petitioner did not go to the Police Stationvoluntarily. He was taken to the Police by the 3rd Respondent.In my view the 3rd Respondent's action of arresting thepetitioner and not informing him the reasons for the arrestviolated the petitioner's Fundamental rights warranted by Article13 (1) of the Constitution.”
In Piyasiri and Others v. Nimal Fernando and Others (supra) thefourteen petitioners were customs officers returning home after work.They were stopped near the Seeduwa Police Station by a policeOfficer. The first respondent, dressed in civilian clothes and withoutidentifying himself to be the police officer he was, questioned thepetitioners as to whether they had foreign currency or whiskey. Thefirst respondent then ordered the petitioners to proceed to theSeeduwa Police Station, which they did, followed by the firstrespondent and other police officers in uniform. They were searchedat the Police Station and money in their possession was taken overby the Police. They were then ordered to proceed to Colombo to theOffice of the Bribery Commissioner in Colombo, where theirstatements were recorded. In the words of H. A. G. de Silva, J.(at p. 176):
"During the period during which they were in the BriberyCommissioner’s Department which was till about 10.00 p.m. thatday they were kept under the continuous control and orders ofthe Police whom they had no alternative but to obey and eventheir friends and relations who sought to contact them were notallowed to do so. At 10.00 p.m. they were permitted to leaveonly after they had given a written undertaking to appear in theMagistrate's Court, Colombo, the following morning.”
A. G. de Silva, J. (Atukorale and L. H. de Alwis, JJ agreeing) atpp. 179-183 said :
“Section 23 (1) of the Code of Criminal Procedure Act No. 15 of1979 states how an arrest is made. It says :
“In making an arrest the person making the same shall actuallytouch or confine the body of the person to be arrested unless
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there be a submission to the custody by word or action and shallinform the person to be arrested of the nature of the charge orallegation upon which he is arrested.”
The explanation to that subsection states that
“Keeping a person in confinement or restraint without formallyarresting him or under the colourable pretension that an arresthas not been made when to all intents and purposes such personis in custody shall be deemed to be an arrest of such person."
After quoting from, Dr. Glanville Williams article on Requisites of aValid Arrest, (1954) Criminal Law Review 6, (an essay somewhatmore concerned with the ingredients of what constitutes an“arrest", rather than, as it has been sometimes supposed,concerned, with the subject of jurisdiction for an arrest), HisLordship said :
. . . After the petitioners were signalled to stop by the PoliceOfficers near the Seeduwa Police Station, they were, till theyappeared in the Magistrate's Court the next day, under thecoercive directions of the 1st respondent. Surrounded by PoliceOfficers, some of whom were in uniform, it would have beenfoolhardy, to say the least, for any of the petitioners to haveattempted to exercise their right to the freedom of movement.Custody does not today, necessarily import the meaning ofconfinement but has been extended to mean lack of freedom ofmovement brought about not only by detention but also bythreatened coercion the existence of which can be inferred fromthe surrounding circumstances."
Professor Glanville Williams (op.cit.) at pp. 11-15 states:
“An imprisonment or deprivation of liberty is a necessaryelement in an arrest; but this does not mean that there need bean actual confinement or physical force. If the officer indicates anintention to make an arrest, as for example, by touching thesuspect on the shoulder, or by showing him a warrant of arrest, orin any other way by making him understand that an arrest is
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intended, and if the suspect then submits to the direction of theofficer, there is an arrest. The consequence is that an arrest maybe made by mere words provided that the other submits. AsTindall, C.J. said … if the bailiff who has process against one,says to him, when he is on horseback or in a coach, You are myprisoner, I have a writ against you, upon which he submits, turnsback or goes with him, though the bailiff never touched him, yet itis an arrest, because he submitted to the process. (Grainger v.Hill*).
The same rule is shown by a case where the plaintiff, suing for falseimprisonment, showed that he was not allowed to go upstairs in hisown house except in the company of an officer; the court held thatit was an arrest, because it was meant to be conveyed to the mindof the plaintiff that he should not go out of the presence or controlof the officers. (Warner v. Riddifordm).
Grainger v. Hill seems further to decide that if the officer announcesthat he will arrest the other unless he gives up a certain thing, andthe other complies, this is a sufficient constraint upon the person toamount to an imprisonment. The reason for the rule is obvious: anofficer who makes such a threat is impliedly saying that the othermust not go out of his presence until he complies with thecondition. The threat therefore becomes an imprisonment as soonas it is complied with. By a slight extension of this reasoning, itmight be held that there is an imprisonment if the officer makes itclear that he will not let the suspect go until he answers a question,for instance, give his name and address, and if the suspectcomplies under this duress.
The rule in Warner v. Riddiford assumes that the suspectacquiesces in the arrest. If he does not acquiesce, but persuadesthe officer to leave him alone or successfully takes to flight, there isno arrest…
If the person to be arrested plainly does not acquiesce … it isnecessary and sufficient for the officer to touch the person to bearrested, at the same time making it plain to him that he is arrested,and where possible stating the act for which the arrest is made…
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The upshot of this discussion is that, for the purpose of putting thesuspect into the position of an arrested person, he need not betouched if he submits, or appears to submit, but if he does notmake submission he must be formally touched.
The foregoing remarks do not mean that every request by a policeconstable to a suspect to accompany him, followed byacquiescence, amount to an arrest. One has to face the verydifficult distinction between a command and a request. If an officermerely makes a request to the suspect, giving him to understandthat he is at liberty to come or refuse, there is no imprisonment andno arrest. If, however, the impression is conveyed that there is nosuch option and that the suspect is compelled to come, it is anarrest. The distinction does not turn merely on the words usedbut on the way in which they are spoken and on all thecircumstances
. . .Obviously it is not every imprisonment or detention thatconstitutes an arrest. To be an arrest, there must be an intention tosubject the person arrested to the criminal process – to bring himwithin the machinery of the criminal law and this intention must beknown to the person arrested. Arrest is a step in law enforcement,so that the arrester must intend to bring the accused into what issometimes called “the custody of the law." But this is a somewhatmetaphysical expression and we need to try to define moreprecisely what is the intention that is required.
If one thinks about the matter there can hardly be any doubt that itmust be an intention in some sense to take the first steps incharging the suspect with a crime .. . The intention certainly neednot be an absolute one: the officer may have the full intention ofreleasing the suspect if a satisfactory explanation should transpire.But it is not sufficient, on this view, that he intends to charge thesuspect only in the event of extracting incriminating admissionsfrom him. There is a clear difference between these two situations:between an intention to charge unless the suspect clears himself,and no intention to charge unless he gives himself away."
Although in Somawathie v. Weerasinghe and Others'r‘ Kulatunga, J.said that “deprivation of liberty is not sufficient to constitute the seizure of
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a man an arrest in law. It would amount to an arrest usually if he is seizedfor an offence”, yet in Withanage Sirisena and Others v. Ernest Pereraand Others,Cl, His Lordship altered his view and held that taking personsinto custody and detaining them for the purpose of procuring theirevidence in the circumstances of the case amounted to an arrest interms of Article 13 (1) of the Constitution. Fernando, J. was of the sameview in Sirisena's case. I would respectfully agree that “arrest” in Article13(1) might include placing a Person in custody otherwise than as a firststep in the process of bringing criminal suspects to justice. ProfessorWilliams was primarily concerned with arrest in the criminal law. However,he was well aware when he said “there must be an intention in somesense to take the first step in charging the suspect with a crime” that thismay not be applicable in other circumstances. At p.15 he says : “Theremay, of course, be an arrest on civil process which this definition wouldnot fit : we are considering exclusively arrest as a step in a criminalproceeding."
Although we were not given any precise definitions of “arrest” byCounsel, there is no lack of judicially discoverable and manageablestandards for resolving the matter before us. The principles andconclusions set out by Professor Williams, mutatis mutandis, andadopted, explained and applied by this Court in Piyasiri, in construingArticle 13 (1) are clear enough and quickly yield a result in this casewithout causing me difficulty.
Admittedly, there was a detention in the matter before us in the sensethat the petitioner was delayed in going on his way into the area of theAirport where his departure formalities had to be attended to. However,was his detention by the first respondent any more an arrest in therelevant sense than his detention when his tickets and visas werechecked and his baggage weighed and labelled and taken over, whencustoms officers stopped him to look at his declaration and examine hisbaggage, when Airport security staff stopped him to screen him and puthis hand luggage through the screening machines, when he wasstopped by the emigration officers to stamp his Passport, when he wasstopped by Airline ground staff to examine his boarding card, and whenhe was stopped inside the aircraft for an examination of his boardingcard to ascertain what was his allocated seat ? To be sure, it would have
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been much nicer if he could have simply walked into the aircraft withoutall or some of these detentions. But was he arrested several times beforehe boarded the aircraft because he was detained in this way ? We haltand wait when our cars are searched; we are stopped to produce ouridentity cards or we wait to be personally searched before we arepermitted to enter certain premises, sadly, almost as a matter of routinetoday. Are we arrested ? A man is hoping to drive to town on a certainroad. A police officer halts him and informs him that he cannot go onbecause a bridge ahead has collapsed. Is he arrested because hecannot go as it pleases him ? A man is prevented from entering a theatrebecause he has no ticket. Is he arrested because he is not allowed to goin to see the play ? If the airline refused to carry the petitioner becausehe had no visa or because his ticket was not valid, would he have beenarrested because he could not go as it pleased'him ? It may please aman to take a stroll through the President's official residence orParliament or come into this Court or wander through your. home. Shouldhe be allowed to successfully complain that his fundamental rightsrelating to freedom from arrest was-violated because he was preventedfrom going where it pleased him ? These may, arguably, be constraintson the freedom of movement. Whether they are justiciable and actionablein the circumstances of a particular case is yet another matter. However,is there an arrest merely because one is stopped from going where onepleases ? Is that the only test ? Or are there other criteria to be satisfied ?
Nor does the need to tarry, in order to answer certain questions, orhaving to give up certain possessions as a condition precedent to goingon, without, more, constitute an arrest. A person who brings in animal orplant material which is suspected of being noxious may be required togive it up on his arrival from abroad. The material may be inspected andtested and returned later on, or subject to fumigation or other treatment;or the material may be released conditionally or it may be destroyed. Theimporter who gives the material up may, in time, make other claims; butmay he complain that he was arrested ? We are not allowed to entercertain premises unless we leave our bags behind. We are required togive over our baggage to the airline attendant and collect them later onarrival. An airline may refuse to carry you unless you give up knives orfirearms or even a can of hairspray or shaving cream containing certainpotentially explosive gasses. Are you therefore arrested ?
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It is of much significance that no precedent sustaining the right tomaintain applications like this has been called to our attention, althoughthousands of detentions do take place every day and although peopleare prevented from going about as they please, taking with them whatthey desire to take with them. This is not surprising, for it is not everydetention or delay in going on, nor the imposition of conditions includingthe requirement to hand over or leave behind certain things, nor even theprevention of going on, that constitutes an arrest in the relevant sense.The act of stopping, halting or delaying a person from going on his wayis to arrest his continuance in motion and progress. However, in my view,in order to sustain the petitioner’s claim that his fundamental right offreedom from arrest guaranteed by Article 13 (1) of the Constitution hasbeen violated, he must establish that there was an apprehension of hisperson by word or deed and an imprisonment, confinement, durance orconstraint by placing him, (such apprehension and placing having beensignified by physical action or by words spoken or by other conduct fromwhich it might have been inferred), in the custody, keeping, control, orunder the coercive directions, of an officer of justice or other authority,whether the purpose of such arrest was to enable the petitioner to beavailable and ready to be produced to answer an alleged or suspectedcrime or to assist in the detection of a crime or in the arrest orprosecution of an offender or some such or other purpose of the officermaking, or authority ordering, the arrest. I do not intend this to be adefinition of “arrest”. A definition, I suppose, must await the wisdom ofthe future. Nor is it an attempt to lay down general guidelinesconcerning other situations not involved here. I do not even suggest thata bright line can be easily drawn that separates the type of deprivation ofliberty within the reach of Article 13 (1) from the type without. Closequestions undoubtedly will sometimes arise in the gray area thatnecessarily exists in between. Whether an act amounts to an arrest willdepend on the circumstances of each case.
In Youngstown Sheet and Tube, Co. v. Sawyer™ (Cf per Brennan, J. inGoldwater v. Carter,8) per Powell, J. in Immigration and NaturalizationService v. ChaddatB) per Rehnquist, J. in Dames and Moore v. Regan1'0*),Mr. Justice Frankfurter said as follows:
Rigorous adherence to the narrow scope of the judicial functionis especially demanded in controversies that arouse appeals to the
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Constitution. The attitude with which this Court must approach itsduty when confronted with such issues is precisely the opposite ofthat normally manifested by the general public. So-calledconstitutional questions seem to exercise a mesmeric influenceover the popular mind. This eagerness to settle – preferably forevera specific problem on the basis of the broadest possibleconstitutional pronouncements may not unfairly be called one ofour minor national traits. An English observer of our scene hasacutely described it: “At the first round of a new argument over theUnited States Constitution and its interpretation the hearts ofAmericans leap with a fearful joy. The blood stirs powerfully in theirveins and a new lustre brightens their eyes. Like King Harry's menbefore Harfleur, they stand like greyhounds in the slips, strainingupon the start.” The Economist, May 10, 1952, p. 370. The path ofduty for this court, it bears repetition, lies in the opposite direction.
It was not suggested by the petitioner that there was any actual orthreatened intention to bring him into the custody of the law and deprivehim of his liberty in subjecting him to the criminal process or otherwise.There was no imprisonment or forced confinement or durance orrestriction of movement by reason of being placed in the custody of thelaw. He was not forced to abandon his journey and ordered to goelsewhere, to Police Stations and other designated places, as thepetitioners were required to do in Namasivayam and Piyasiri, undersurveillance and to remain under the control and coercive directions oflaw enforcement personnel or any other authority. He was not required tobe in the presence or control of the first respondent or other officers ofjustice or law enforcement at any time even at the Airport. He was not intheir keeping. There was no restraint of his freedom of movement byactual or threatened coercion. He was by no means coerced physicallyor by word or deed into a state of submission. The petitioner certainly didnot cower: When a request was made to search his bags, he defiantlyrefused to open his bags. He wanted to seek advice. He was free to doso. He telephoned the Leader of the Opposition and then made up hismind. He threw his bags at the first respondent when he decided thatthey might be examined. He refused to make a statement, although hewas requested to do so. Admittedly, he complied with the proposal toleave the documents behind, not spontaneously, but because it wassuggested or prompted by the first respondent. The petitioner preferred
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to take the documents. Nevertheless he gave them up, choosingbetween his options without duress or intimidation and without fear oflosing his liberty by being placed in the custody of the law. He did nothave to choose between giving the documents up or being imprisoned,confined or placed in the custody of the law, but between acquiescing inthe necessity and propriety of giving up for scrutiny, material suspectedof being objectionable, and not being allowed to proceed to Geneva. Itwas not announced, and he was never made to understand, that hewould be imprisoned or confined or placed under police surveillance, orsubject to coercive directions of law enforcement officers unless he gaveup the documents. He was free to return home or go elsewhere withoutbeing subject to the control of law enforcement officers and withoutbeing placed or under their surveillance or coercive directions. Thegiving up of the material may have given rise to other claims, indeed, thepetitioner claimed that this violated his rights under Article 14 (1) (a) ofthe Constitution – but not, in the circumstances of this case, asustainable claim based on the ground of arrest. Preventing him fromproceeding may have given him cause to complain that his fundamentalright of freedom of movement guaranteed by Article 14 (1) (h) had beenviolated. However, no such claim has been made, and that is anothermatter. After giving up the suspicious documents in his possession, hewent on his way to Geneva as planned. I am of the view that, althoughthe detention might have been irritating, and irksome, there was no arrestwithin the meaning of Article 13 (1) of the Constitution. I dismiss thepetitioner’s application in respect of Article 13 (1) of the Constitution.
The petitioner in paragraph 13 of his affidavit suggested that thedetention and search was occasioned by the “orders of higher-ups".There is no evidence of this. However, if as he supposed, the Executivemay not have regarded the petitioner as a welcome traveller, and didlook upon his policies and actions with disfavour, yet, it did not use anyone of the several means at its disposal to prevent him from proceedingon the flight on which he was booked to go to Geneva. It rather seems tohave accepted and acted on the principle that, just as popular andunpopular speech must be protected, it had likewise to protect the rightsof both popular and unpopular travellers. (Cf. per Brennan, J. in Haig v.Agee"").
There being no arrest, it is unnecessary for me to decide whetherthere was a valid, justifiable and excusable arrest in that he was informed
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of the reasons for his arrest, and arrested according to procedureestablished by law, although we were addressed at length, andvigorously, on this matter by learned counsel for the petitioner who wasanxious that we should decide whether the first respondent had"‘objectively” defensible grounds for his conduct.
For the reasons stated in my judgment, I dismiss the petitioner’sapplication in respect of the alleged violations of Articles 12,13 (1), 13 (2)and 14(1) (a) of the Constitution.
BANDARANAYAKE, J. -1 agree.DHEERARATNE, J. – I agree.
Application dismissed.