RODRIGO v. IMALKA SUB-INSPECTOR OF POLICE ,KIRULAPANE AND OTHERS

012-SLLR-SLLR-2007-V-2-RODRIGO-v.-IMALKA-SUB-INSPECTOR-OF-POLICE-KIRULAPANE-AND-OTHERS.pdf


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RODRIGOv
IMALKASUB-INSPECTOR OP POLICE, KIRULAPONE AND OTHERSSUPREME COURTSARATH N. SILVA, CJ.
SHIRANEE TILAKAWARDANE, J.
BALAPATABENDI, J.
SC FR 297/2007NOVEMBER 28, 2007
Constitution – Articles 12, 12 (1), 13 (1), 13 (2), 14(1) (h). 15 (7), 126 (4) – PenalCode – sector? 454, section 459 – Criminal Procedure Code – section 32 (1) -Searched and checked at check points – legality 7 Reasonable ground of suspicionessential to warrant a search – Restriction and freedom of movement – Directionsissued under Article 126 (1)- Public Security Ordinance – section 12 – Placing ofBoards by Police on Roads – Legality?
The petitioner complains that he was stopped at a 'check point' and asked for hisdriving licence. The petitioner had handed over his temporary driving licence issuedby the Commissioner of Motor Traffic. The respondents had informed the petitionerthat it is a forgery and a bribe was sought. As the bribe was not paid, he wasdetained at the Fraud Bureau and was produced before the Magistrate on a B’reporton the basis that the petitioner was in possession of a forged temporary drivinglicence and had thereby committed an offence under section 459 – section 454 ofthe Penal Code. He was remanded by the Magistrate and later when it came to lightthat the document was a genuine document, the Magistrate discharged thepetitioner.
The petitioner complained of violation of Articles 14(1)(h), 12 (1), 13(1) and 13(2)of the Constitution.
Considering the continuing pattern of infringement affecting the freedom ofmovement and the guarantee of the equal protection of the law by measurespurportedly taken in the interest of national security and the prevention of publicorder, the Counsel for the petitioner submitted that it is just and equitable to makedirections in terms of Article 126 (4).
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Held:
Section 32(2) of the Code of Criminal Procedure Act permits the arrest of aperson who has been concerned in any cognizable offence or against whoma reasonable complaint has been made or credble Information has beenreceived or a reasonable suspicion exists of his having bang so concerned.The Emergency Regulations (Miscellaneous Provisions And Powers) has awide power in Regulation 20 (1).
The members of the armed forces called out by the President in terms ofsection 12 — Public Security Ordinance have the fullest power to maintainpublic order and to taken action against those who are waging war andcommitting related offences, but when action is cfirecfed against personswho are not thus engaged in war and committing related offences, everyprecaution and safeguard has to be taken to minimize the resultanthardships.
Per Sarath N. Silva C J:
"A reasonable ground of suspicion is essential to warrant a search. There is noprovision of law which permits arbitrary action in stopping and searching personswho travel on our pubSc roads in the exercise of the fundamental right to thefreedom of movement, ft is paramount that any restriction of the fundamental rightsguaranteed by the Constitution should only be as * prescribed by law*. The Policeand members of the armed forces have to bear in mind firstly that they don theuniform and bear weapons only as permitted by law, to uphold toe law and torespect, secure and advance the fundamental rights declared by the Constitution”.
Per Sarath N. Silva C.J:
“Superior officers who do not take precautions to prevent any infringement by theirsubordinates who are detailed for duty would themselves be liable for theinfringement of the freedom of movement and the freedom from arbitrary arrestguaranteed by Article 14(1)(h) and 13(1).
Per Sarath N. Silva C.J:
u The facts presented above clearly reveal a clear instance of the abuse of power,rampant dishonesty and corruption and also misuse of the process of law that takesplace at ‘check points’ that have sprouted up. I may at this stage state that theerection of virtually permanent barriers on public road done at the ‘ check points’ isnot authorized by any law”.
Directions issued under Article 126(4) –
The prevalent executive action in operating permanent ‘check points' withunlawful obstructions of public roads and the stoppage of all traffic resulting inserious congestion to be discontinued since such action amounts to aninfringement of the fundamental right to the freedom of movement guaranteedby Article 14(1)(h) and deny to the people toe equal protection of toe lawguaranteed by Article 12(1). The public roads are vested in the Local Authoritiesto ensure that they are maintained for people to exercise their freedom ofmovement.
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In terms of Section166 (1)(a) of the Motor Traffic Act any prohibition or restrictionof halting or parking of motor vehicles on a highway or pari of a highway in anyarea has to be by order of the relevant authority. It appears that the prohibitionscomplained of have been purportedly made by the Senior Superintendent ofPolice (Traffic) (SSP Traffic) and not by the Local Authority – Colombo MunicipalCouncil – Hence the permanent boards that are now seen in most streetspurportedly by order of the SSP (Traffic) are patently illegal and deny the peoplethe equal protection of law guaranteed by Article 12 (p). Such illegal signsshould be removed forthwith.
At times traffic is brought to a halt on principal roads at peak hours causingsevere congestion which in itself is a security threat (V.I.P. movement). Suchmeasures deny to the people the equal protection of law. The obstruction oftraffic on public roads and the consequential restriction of the freedom ofmovement would be an infringement of the fundamental rights guaranteed byArticle 14 (1)(h).
The rights are directed to ensure that no such obstructions as alleged takeplace. If security measures have to be taken to safeguard any person who isspecially threatened such measures should be taken with minimuminconvenience caused to the citizens who are exercising the freedom ofmovement. Such measures should in any event be avoided al peak hours sincethey cause serious congestions that would itself pose a threat to security.
APPLICATION under Article 126 of the Constitution.
Cases referred to>
Sarjun v Kamaldeen PC 39573 Police Station Habarana SCFR 559*03 – SCM
31. 7. 2007
Liyanage v. Gampaha Urban Council 1991 1 Sri LR 8
W. Dayaratne for petitioner.
Manohara de Silva PC for 1st and 2nd respondents
K. Parinda Ranasinghe SC with L Munasinghe SC for 3 – 7 respondents.
Cur.adv.vuH.
December 3, 2007SARATH N. SILVA, C.J.
The petitioner has been granted leave to proceed on the allegedinfringement of several fundamental rights the ambit of which would beadverted to in the course of this judgment.
Counsel for the petitioner submitted that although the applicationhas been filed specifically on the infringement of the petitioner’s
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fundamental rights, the case is being presented more from" theperspective of the public interest in protecting, securing and advancingthe fundamental rights of the people. That, the alleged infringementsare typical of the travails, hardship and harassments the people,peacefully engaged in their lawful pursuits and who travel on our publicroads in the exercise of the fundamental right to the freedom ofmovement guaranteed by Article 14 (1)(h) of the Constitution aresubjected to, thereby denying to such person the equal protection of thelaw guaranteed by Article 12(1) and the freedom from arbitrary arrestand detention guaranteed by Articles 13(1) and 13(2).
Considering the submissions based on the public interest, the Courtpermitted the motion of the petitioner to add the Secretary, Ministry ofDefence as a party respondent. When the matter came up for hearingon the specialty fixed day, 17.10.2007, further time was sought by the4th respondent being the Officer in Charge of the Kirulapona PoliceStation to file objections. Since no objections had been filed by theInspector General of Police and the Secretary, Ministry of Defence andconsidering the general ambit of the application, the Court grantedfurther time for objections to be filed. Thereafter, objections have beenfiled by the Inspector General of Police, but no objections have beenfiled by the Secretary, Ministry of Defence.
On the basis of all the material that has been adduced in Court, it iscommon ground that the petitioner had not committed any offence ordone or omitted to do anything so as to be illegal or contrary to law, inrespect of the incidents which resulted in his arrest and detention,including a period in remand custody.
The facts are briefly as follows.
On 28.07.2007 at about 12.00 noon the petitioner was stoppedwhilst driving his vehicle along the main road from Kirulapona towardsColombo. The place where he was stopped is described as the"Polhengoda Police Check Points". This is one of the many “CheckPoints” that have sprouted up on our high roads and bridges in differentparts of the country, where the roads are barricaded with sand filledbarrels and other crude implements, and often with an over-hangingshelter for the officers who serve at these points and illuminated withelectrical bulb with a supply drawn from some temporary connection.These points are seen at times as temporary Police Stations at whichentries are being recorded. The facts presented in this case reveal theactivity that goes on in these temporary "Stations" located on roadsidesand on bridges and would be adverted to, hereafter.
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As noted above the petitioner was not stopped in connection with thecommission of any offence. When his vehicle was brought to a half, the1st respondent, being the officer-in-charge of the ‘Check Point” askedfor his driving licence. The petitioner handed over his temporary Drivinglicence issued by the Commissioner of Motor Traffic since the originaldriving licence had been lost and the issuance of a duplicate was beingprocessed by the Department of Motor Traffic. The petitioner wasinformed that his temporary driving licence is a forgery and a bribe wassought to refrain from prosecuting him. The petitioner replied that he didnot have any money with him. At that point the officer opened the ‘cubbyhole’ of the petitioner's vehicle and seeing a bottle of perfume,demanded that the bottle be given to him. When the petitioner refusedto give the bottle of perfume the officer threatened that the temporarydriving licence would be tom and destroyed and that he would beprosecuted. The petitioner protested his innocence and produced eventhe receipt issued by the Commissioner of Motor Traffic in respect of theapplication for the duplicate licence. At that stage the officer abused himand asked him to leave the place immediately whilst retaining thetemporary driving licence.
The petitioner being in peril of driving without the temporary licencewent to the Kirulapona Police Station which is nearby and informed the
2nd respondent, being the Officer in Charge of the Traffic Branch, of theincident. The 2nd respondent requested him to go back to the 'CheckPoint’. When he returned to the check point and informed the 1strespondent and the others present that he met the 2nd respondent,these officers became furious and abused him in filthy words. They gotin to the petitioner’s vehicle and came to Kirulapona Police Station. The1st respondent who came with the petitioner handed over thetemporary driving licence of the petitioner to the 2nd respondent and thepetitioner gave the receipt issued by the Commissioner of Motor Trafficin respect of his application for the duplicate licence. Thereafter the 2ndrespondent perused the documents P1 and P2 stated that thetemporary driving licence is a forgery and took petitioner into hiscustody. Subsequently a statement was recorded from the petitionerand at about 4.30 p.m. he was handed over to the Fraud Bureau atWellawatte, with the intervention of the 4th respondent being theOfficer-in-Charge of the Police Station. The petitioner was detainedovernight at the Fraud Bureau and was produced before the Magistrateon a "B Report” bearing No. B 5084/2 by an order of the 3rd respondentbeing the Officer-in-Charge of the Fraud Bureau. It was reported toCourt that the petitioner was in possession of a forged temporary driving
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licence and had thereby committed offences under section 459 and 454of the Penal Code. The petitioner was remanded by the Magistrate onthis Report.
It appears that the Magistrate requested the Police to check on theauthenticity of the temporary driving licence. That was done by the 3rdrespondent who filed further report on 1.8.2007 which revealed that theDeputy Commissioner of Motor Traffic Mr. Weerakoon reported thatwhat was produced by the petitioner (P1) was a genuine document andthe Magistrate discharged the petitioner from the proceedings.
The 1 st respondent has filed an affidavit in which the arrest of thepetitioner is admitted. She has stated that the petitioner “was subjectedto a routine inspection” and that she entertained a suspicion as regardsthe genuineness of the temporary driving licence because of thedemeanour of the petitioner. She has further stated that the petitionerconfessed that he obtained a temporary driving licence by offering abribe of Rs. 500/- to an officer in the Motor Traffic Department.
The 1st respondent has denied that she sought a gratification fromthe petitioner and or that she demanded the bottle of perfume.
The 2nd respondent denied the allegation against him and hasstated that the “Check Point” did not come under his supervision. Hehas specifically stated that on 28.7.2007 he set out from the KirulaponaPolice Station at 9.15 a.m. on patrol duty and returned to the PoliceStation at about 0.20 p.m.
The 4th respondent being the Officer-in-Charge of the KirulaponaPolice Station has filed an affidavit and stated that after the petitionerwas produced in the Police Station he made an attempt to contact theCommissioner of Motor Traffic at Werahera by phone in order to verify(he authenticity of the temporary driving licence produced by thepetitioner and since Ha reply was not forthcoming immediately”, thepetitioner was handed over to the Fraud Bureau for further investigation.
The 3rd respondent being the Officer in Charge of the Fraud Bureauat Wellawatte has stated that the petitioner was brought to his PoliceStation at about 5.45 p.m. by an officer of the Kirulapona Police. He hasstated that he requested Police Sergeant Edirisinghe to investigate thematter and "accordingly the said officer recorded a detailed statementfrom the said accused in respect of the charge levelled against him." Hehas further stated that the recording of the statement continued till 8p.m. and for this reason the petitioner was detained overnight andproduced before the Magistrate at 10 a.m. on the next day.
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I have now to consider the conflict of testimony with regard to thecircumstances in which the petitioner was arrested, kept in custody andlater remanded. As noted above the respondents conceded that thepetitioner committed no offence whatsoever whilst travelling on the roadand at the stage he was stopped.
The temporary driving licence, marked P1 is manifestly a genuinedocument with contains even the photograph of the licence holder. It isin a machine numbered official form to be used in terms of section 126
of the Motor Traffic Act. There are no alterations or erasures and itbears all the endorsements of the respective officials. It contains thenumber of the petitioner's driving licence and of his national identitycard. The receipt that the petitioner produced marked P2 has also beenissued by the Commissioner of Motor Traffic in the official form. It clearlystates that the relevant documents have been received at their office forthe issuance of a duplicate of the driving licence.
The circumstances urged by the 1st respondent to justify the arrestviz: that the petitioner stammered and appeared to be excited and soon are a figment of her imagination. It is possible that he gave a bribeof Rs. 600/- to the Motor Traffic Department for the duplicate licence.But, does that mean that a further bribe should be given to the Police?
As between the version of the petitioner and the 1st respondentthere is no doubt whatsoever that the petitioner's version is acceptable.It is obvious that the 1st respondent retained the temporary drivinglicence produced by the petitioner and thereafter threatened to destroyit leaving the petitioner helpless in the matter. If that was done thepetitioner would have no witness to support him except the other policeofficers who would never have assisted him in the matter. The 1strespondent continued to retain the temporary driving licence knowingfully well that the petitioner would have to return to collect the documentfrom her. Thus the payment of a bribe was assured. The demand of thebottle of perfume alleged by the petitioner can also be believed in thecircumstances that have been presented.
The petitioner did the obvious in the circumstances by going up tothe Police Station to report the injustice that had been meted out. The2nd respondent denied that he was at the Police Station and sought tosupport his alibi by an extract from the Information Book producedmarked 2R2. The entry produced to say the least is preposterous. Itmerely records that the 2nd respondent left the Station on a motor cyclebearing a particular number at 9.15 a.m. and returned to the PoliceStation only at 8.15 p.m. in the night. It merely records that the 2nd
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respondent travelled along High Level Road, Baseline Road,Poorwarama Road, Wijaya Kumarathunga Mawatha etc. These arenames of a few roads in the vicinity virtually within walking distance. Heclaims to have travelled about 30 k.m. in this area. There is no officialrecord of anything that he has done in the nearly 11 hours period heclaims to have been outside the Police Station. He seems to have gonewithout meals and everything else. The denial is palpably false andentry 2R2 has been fabricated for the purpose of producing it in Courtto support his alibi that there was no contact with the petitioner.
The method by which these Police Officers all being in the rank ofPolice Inspectors operated is obvious. When the petitioner complainedof the conduct of the 1st respondent being a Sub Inspector of Police atthe security ‘Check Point”, the 2nd respondent engineered a situationwhere the petitioner is brought back to the Police station with therelevant document. Having got the petitioner within their full control, theyobviously decided to teach the petitioner a lesson by concocting acharge of using as genuine a forged document and referred the matterto the Fraud Bureau for further harassment.
The 3rd respondent sought to justify the detention of the petitionerovernight on the basis that after he was brought in at 5.45 p.m. a“detailed statement’ was recorded till 8 p.m. But, the Information Bookextract produced by him marked 3R3 does not contain any statementof the petitioner. It appears that the Fraud Bureau has acted true to itsname and has endeavoured to perpetrate a fraud on the Court. 3R3 isa long typewritten document which contains a series of guidelinesgenerally addressed to an investigating officer. Beneath that there is anentry by P.S. 32453 Edirisinghe who according to the 3rd respondent(OIC) recorded a detailed statement till 8 p.m., that he obtained astatement from the Motor Traffic Department. Whereas, nothing in factwas obtained from the Motor Traffic Department. This is once again apart of the vicious scheme of the Police to punish the petitioner. To justifyhis detention overnight and to produce him before the Magistrate on thenext day being a Sunday and a public holiday knowing fully well that thepetitioner would be remanded without an inquiry.
It appears that the intervention of the Magistrate resulted in theobvious course of action in getting the document checked from theCommissioner of Motor Traffic, resulting in the petitioner beingdischarged on 1 st of August 2007.
The facts presented above reveal a clear instance of the abuse ofpower, rampant dishonesty and corruption and also misuse of the
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process of law that take place at “Check Points” that have sprouted up.The tragedy is that a multitude of offences have been committed byPolice officers whose duty it is to use their “best endeavours” and abilityto prevent all crimes, offences and public nuisances (vide Section 56 (a)Police Ordinance). I may at this stage state that the erection ofvirtually permanent barriers on public roads as done at these“Check Points" is not authorised by any law.
In the month of July this year being the very month the presentincident took place, this Court entered a judgment in a similar casewhere a person who was transporting furniture for his personal usehaving obtained a permit under the Forest Ordinance, although suchpermit was not required, was wrongfully arrested, detained and torturedbecause he refused to give a bribe of Rs. 5000/- that was demanded(Sarjun v Kamaldeen)0).
The observations made at 7 of the Judgment apply with equal forceto the facts of this case.
‘The facts of the case reflect the hapless plight of an innocent citizenwho takes every precaution to comply with the law of the land. Theconcern of national security resulting from the threats of terrorismhas made it necessary to impose safeguards and check points onour public roads. This case typifies the vicious fink between abuse ofauthority, pursuit of graft and the infliction of torture on a citizen whoinsists on his right not to cave into iflegat demands of gratification andabuse of authority. Whilst security concerns have to be addressedsuch action should be taken with the highest concern and respect forhuman dignity.
The presence of groups of armed Police and Security personnelwho place illegal obstructions is a common sight on our roads.These officers as manifest in the facts of this case do not appreciatethat roads constitute public property and that every citizen is entitledto the freedom of movement guaranteed by Article 14 (1 )(h) of ourConstitution being the Supreme Law of the Republic. Anyinterruption of the exercise of such freedom by Police/ securitypersonnel would amount to an arrest and has to be justified on thebasis of a reasonable suspicion of having committed an offence. Atolerant society wedged between ruthless terrorism and the abuse ofauthority has tost the taste of freedom, ft is only through a respect ofhuman dignity and freedom guaranteed by the Constitution to allsegments of our society that peace and normalcy could be restored.Therefore a heavy responsibility lies on all Senior officials who
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detailed armed personnel on our roads to take every precaution toensure that ordinary officers such as the 1st respondent (being onlya Reserve Police Constable) do not abuse their authority violate thelaw or Inflict suffering on innocent citizens. Such personnel have tobe firmiy instructed that they have to act with the highest degree ofcaution and sensitivity with due respect for human dignity.
A person freely moving on the road in compliance with the law couldbe stopped and made to alight from the vehicle only on a reasonablesuspicion of illegal activity. Such suspicion would have to be justifiedin Court. Superior Officers who do not take precautions to preventany infringement by their subordinates who are detailed for dutywould themselves be liable for the infringement of the freedom ofmovement and the freedom from arbitrary arrest guaranteed byArticle 14 (1)(h) and 13(1) of the Constitution”
This Court issued a special direction in that case that copies of thejudgment be sent to the Secretary, Ministry of Defence and theInspector General of Police considering the pattern of seriousinfringements of fundamental rights that take place by the abuse ofauthority on the part of personnel who check vehicles and peopletravelling in our public roads in the exercise of their fundamental rightto the freedom of movement, particularly because such action isdirected at persons who have not committed any offence and againstwhom there is no reasonable suspicion of having committed anyspecific offence. Further, in regard to the purported basis of executiveaction it is noted that Article 15(7) of the Constitution permits restrictionsof the fundamental rights adverted to above only if such restrictions are“prescribed by law in the interests of national security."
Section 32 (1) of the Code of Criminal Procedure Act permits thearrest of a person who has been concerned in any cognizable offenceor against whom a reasonable complaint has been made or credibleinformation has been received or a reasonable suspicion exists of hishaving been so concerned. The Emergency (Miscellaneous Provisionsand Powers) Regulations has a wider power in regulation 20(1) whichreads as follows:-
“Any Public officer, any member of the Sri Lanka Army, the Sri LankaNavy or the Sri Lanka Air Force, or any other person authorized bythe President to act under this regulation may search, detain forpurposes of such search, or arrest without warrant, any person whois committing or has committed or whom he has reasonableground for suspecting to be concerned in, or to be committing, or
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to have committed, an offence under any emergency regulation,and may search seize remove and detain any vehicle, vessel,article, substance or tiling whatsoever used in, or in connectionwith tire commission of the offence
Thus a reasonable ground of suspicion is essential to warrant asearch. There is no provision of law which permits arbitrary action instopping and searching persons who travel on our public roads in theexercise of the fundamental right to the freedom of movement. ThisCourt has repeatedly held that the Rule of Law is the basis of ourConstitution. Waging war against the State is the severest of offencespunishable with death in terms of section 114 of the Penal Code.There are also connected offences in chapter VI of the Penal Code.The members of the Armed Forces called out by the President interms of section 12 of the Public Security Ordinance have the fullestpower to maintain public order and take action against those who arewaging war and committing other related offences. But, when actionis directed against persons who are not thus engaged in war andcommitting related offences, every precaution and safeguardhas to be taken to minimize the resultant hardships. It isparamount that any restriction of the fundamental rightsguaranteed by the Constitution should only be as 'prescribed bylaw. The Police and members of the Armed Forces have to bearin mind firmly that they don uniform and bear weapons only aspermitted by law; to uphold the law and to respect, secure andadvance the fundamental rights declared by the Constitution.
Although copies of the judgment were sent to the respectiveofficials in the background stated above, as submitted by Counsel forthe petitioner, no remedial executive action has been taken. Hence,considering the continuing pattern of infringements affecting thefreedom of movement and the guarantee of the equal protection of thelaw, by measures purportedly taken in the interests of nationalsecurity and the preservation of public order, Counsel submitted thatit is just and equitable to make directions in terms of Article 126(4) ofthe Constitution in the public interest to secure and advance thefundamental rights of the people.
Counsel submitted that such directions be made in three relatedaspects affecting the freedom of movement and equal protection oflaw that result from executive or administrative action purportedlytaken in the interest of national security. They are-
the restriction of the freedom of movement that result at “Check
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Points” referred above and the general measures taken at times tostop all traffic and check all vehicles and persons travelling onpublic roads causing heavy congestion of traffic, inordinate delays,hardships and loss;
the total prohibition of parking of vehicles on certain principal roadsthat deny to the people the equal protection of the law;
the intermittent stoppage of all traffic to permit what has beendescribed as “VIP movements" – that deny the people the freedomof movement and the equal protection of the law;
Counsel for respondents had no objections that these aspectsbeing considered by Court for the purpose of making appropriatedirections.
“Check Points” and stoppage of all vehicles for checkingCounsel for the petitioner submitted that the establishment of nearpermanent “Check Points” along public roads and on bridgesreferred above has been done without any legal basis. Thesepublic roads are vested in the local authorities to ensure that theyare duly maintained for the people to exercise their freedom ofmovement.
In the case of Uyanage v Gampaha Urban Council and others*2),a writ of certiorari was issued on a local authority that causedcertain obstructions on a public road by converting it to a marketplace on a particular day. The Court analysed the provisions of theUrban Councils Ordinance (similar provision being contained in theMunicipal Councils Ordinance) and concluded that,
the legislative purpose underlying these provisions is veryclear. It is to ensure that a council, being the administrativeauthority at local level will have the public thoroughfares withinits area, free of obstructions, well maintained and improved withthe passage of time. So that the people for whose benefit thesethoroughfares are meant can use them freely and withoutimpediment…."
An obstruction of a public road which is not for the maintenance orrepair is clearly not warranted by any law. The illegal erection ofvirtually mobile police stations partly obstructing public roads havebeen done by officials whose duty it is to uphold the law in flagrantviolation of the law itself as noted above. Even disregarding theillegality in establishing these "Check Points” I would now examine thefurther issue whether the action taken at these “Check Points” as
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revealed by the material adduced by the respondents can be justifiedfrom the perspective of national security and preserving public order.
The 5th respondent being the Inspector General of Police hasproduced several documents that have been issued in respect of“Check Points". He has produced marked “5R3" a circular issued byhis predecessor in office last year, bearing the title “Implementation ofPolice Check Points Effectively".
The 2nd paragraph of this circular states very categorically thatthese ‘Check Points" erected in all Police areas throughout thecountry have been of ‘minimal use’. The IGP has noted this as apersonal observation and given as the reason for such a dismal statethe fact that there is no proper scheme or plan for the operation ofthese “Check Points". A Standard Operational Procedure (SOP hasbeen annexed to “SR?1}. In the introduction to the SOP, it is repeatedonce again that the effectiveness of these “Check Points” is veryminimal “yno It further states that there has been very fewarrests and even few instances of persons taking illegal items such asweapons and explosives. Ironically, the IGP has stated that in a recentincident terrorist suspects had transported two boats filled withexplosives up to Negombo passing ten “Check Points”. According tothe IGP this has been discovered from a later confession of a suspectwho was arrested elsewhere. What should be added as post script tothe IGP’s virtual tale of woe are the serious incidents of abuse ofpower, corruption and the harassment of innocent persons referred toabove.
The 1st respondent being the Officer in charge of KirulaponaPolice Station has produced marked "4R2” a document whichspecifies the particulars the Officers have to take down at these“Check Points”. They are as follows
1.The date of inspection.
Time of inspection.
Number of the vehicle.
Make of vehicle.
Full name and address of the driver.
Driver’s National Identity Card number.
Driving Licence number.
Number of females who travel in the vehicle.
Number of males who travel in the vehicle.
Any other particulars to be stated.
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These particulars cannot possibly serve any purpose from theperspective of national security nor can such information safeguardpublic order. The result of this futile exercise carried on by thevirtually mobile Police Stations referred above is to delay andharass persons lawfully exercising their fundamental right to thefreedom of movement. It is manifest that this process has gone onfor many years without the Executive bringing its mind to bear onthe purpose of maintaining these illegal “Check Points”. Peopleover the years have suffered in silence probably under theassumption that some useful information is cojlected from theperspective of national security. These “Check Points” in theirpresent semi permanent state and lit up in the night can be seen ata distance and their locality is well known. No person who hascommitted an offence, let alone a terrorist would ever drive up tosuch a “Check Point” and virtually submit himself to be arrested.That probably is the reason for their minimum use in respect ofwhich the former IGP was lamenting in 5R3.
Counsel submitted that even law abiding persons avoid these“Check Points” by taking a detour along by – roads to avoj&,beingunnecessarily stopped.
In considering the foregoing matters we have been mindful ofthe serious situation that the Executive is confronted with since onthe very day this matter was heard there were two explosions in theCity, one causing serious loss of life and injuries. It is to be notedthat these explosions have taken place in areas hemmed in onseveral sides and direction by "Check Points". There has been aprofuse presence of armed personnel on the nearby roads. It isclear that such obtrusive presence of armed personnel and “CheckPoints” have not deterred in any way the terrorists in carrying outthe dastardly attacks.
The city of Colombo and the suburbs are now cosmopolitan inevery sense. There are a large number of Tamils, Muslims andSinhalese who live in the City. Many Tamil persons have soughtrefuge in the City and the suburbs and it is the incumbent duty ofthe State to ensure that they are afforded security from the threatswhich probably compelled them to evacuate from their previousplaces of abode. On the other hand, it is the basic duty of one andall who benefit from the safety and security of the City to ensurethat such security is preserved without the intrusion of terroristactivity.
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In the circumstances it would be well for the Executive to enlistthe support of all residents in the task of preserving nationalsecurity by establishing Citizens Committees, shop-keepersCommittees and so on. Such Committees should have a directlink with the Police and Security Personnel in ensuring that thereis a quick, ready and effective response to any threat that isnoted.
Such action would have prevented the explosions, loss of lifeand destruction of property that we have experienced.
A similar observation has also to be made of the action takenby Police and Security Personnel to stop all traffic and to checkail vehicles. This action has resulted in serious congestion oftraffic. In a situation where innocent civilians are also targeted byterrorist activity such congestions of traffic may unnecessarilyendanger many. As noted above even the Emergency regulationsdo not warrant such arbitrary action.
Considering the matters stated above, we uphold thesubmissions of the Counsel for the petitioner and make adirection that in terms of Article 126(4) of the Constitution that theprevalent executive action in operating permanent "CheckPoints" with unlawful obstructions of public roads and thestoppage of all traffic resulting in serious congestion bediscontinued since such action amounts to an infringement of thefundamental right to the freedom of movement guaranteed byArticle 14(l)(h) of the Constitution and deny to the people theequal protection of the law guaranteed by Article 12(1) of theConstitution. The power to search arrest and detain should beexercised in terms of Regulation 20(1) of the Emergency(Miscellaneous Provisions and Powers) Regulation cited aboveon the basis of reasonable grounds of suspicion of thecommission of an offence or being concerned in the commissionof an offence under the Emergency Regulations. Officersassigned such functions should be duly informed of thefundamental right to the freedom of movement guaranteed byArticle 14(l)(h) and the guarantee of the equal protection of thelaw as contained in Article 12(1) of the Constitution. It is to benoted that the S.O.P. (5R3) produced by the I.G.P. makes noreference to these matters.
sc
Rodrigo v Imalka Sub-Inspector of Police, Kirulapone and O there
(Sarath N. Silva. C.J.)
115
The total prohibition of parking vehicles on certain principalroads that deny to the people the eoual protection of the
law.
Counsel for the petitioner submitted that the total prohibition onparking of vehicles on certain principal roads within the City is notpermitted by any law and that the executive action in this regarddenies to the people the equal protection of the law guaranteed bythe Article 12(1). We have to note that the Motor Traffic Act is theapplicable law. In terms of section 166(l)(a) of the Motor Traffic Actany prohibition or restriction of halting or parking of motor vehicleson a highway or part of a highway in any area has to be by order ofthe relevant local authority. It appears that the prohibitionscomplained of have been purportedly made by the SeniorSuperintendent of Police (traffic) and not by local authority beingthe Colombo Municipal Council. It is to be noted that in terms ofsection 164 (!)(a) of the Motor Traffic Act a police officer not belowthe rank of Superintendent of Police or Assistant Superintendent ofPolice may affix traffic signs only for the 'temporary regulation oftraffic’. Hence permanent boards that are now seen in most streetspurportedly by order of the SSP (traffic) are patently illegal anddeny to the people the equal protection of law guaranteed by Article12(1) of the Constitution.
In the circumstances we make a direction in terms of Article126(4) of the Constitution that such illegal signs be removedforthwith and proper orders be made if necessary, in terms of theprovisions of the Motor Traffic Act. In making such an order suitablearrangements should be made to permit the parking of vehicles atleast on one side of the road at alternate times depending on theintensity of the movement of traffic.
Intermittent stoppage of traffic to permit “VIP Movement”Counsel submitted that at times traffic is brought to a halt onprincipal roads at peak hours causing severe congestion which initself is a security threat. It was further submitted that securitypersonnel engaged in these tasks at times even rudely drive thepedestrians away. It appears that no one knows the persons whomake such arrangements or give such orders. We have to note thatsuch measures deny to the people the equal protection of law. Ithas to be borne in mind that our State is a Democratic SocialistRepublic in which all persons are equal. The obstruction of traffic
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[2007] 2 Sri L.R
on public roads and the consequential restriction of the freedom ofmovement would be an infringement of the fundamental rights ofthe citizens guaranteed by Article 14(1)(h) of the Constitution.
in the circumstances 5th and 7th respondents are directed toensure that no such obstructions as alleged take place. If securitymeasures have to be taken to safeguard any person who isspecially threatened such measures should be taken with minimuminconvenience to the citizens who are exercising the freedom ofmovement. Such measures should in any event be avoided at peakhours since they cause serious congestions that would itself posea threat to security.
The 5th respondent is directed to report to Court on 7-1-2008 ofthe action taken.
For the reasons stated above the application is allowed and wemake a declaration that the petitioner's fundamental rightsguaranteed by Article 12(1), 13(1) and 13(2) have been infringed byexecutive or administrative action.
Considering the nature of infringements we direct the paymentof compensation to the petitioner personally in a sum ofRs. 75,000/- each by the 1st, 2nd, 3rd and 4th respondents. TheState will pay costs in a sum of Rs. 25,000/-.
The Registrar is directed to forward a copy of the judgmentcontaining the directions made in terms of Article 126 (4) of theConstitution to the 5th, 6th and 7th respondents for necessaryAction in terms of these directions.
Mention on 7-1-2008.
TILAKAWARDANE, J.-I agree.
BALAPATABENDI, J. -I agree
Application allowed.
Directions issued.