SARANAPALA v. SOLANGA ARACHCHI, SENIOR SUPERINTENDENT OF POLICE AND OTHERS

018-SLLR-SLLR-1999-V-2-SARANAPALA-v.-SOLANGA-ARACHCHI-SENIOR-SUPERINTENDENT-OF-POLICE-AND-OTHERS.pdf


166
Sri Lanka Law Reports
[1999] 2 Sri LR.
SARANAPALA
v.SOLANGA ARACHCHI, SENIOR SUPERINTENDENT OFPOLICE AND OTHERS
SUPREME COURTAMERASINGHE, J.,
WIJETUNGA, J. ANDGUNAWARDANA, J.
S.C. APPLICATION NO. 470/96 (FR)
JUNE 18, 1997
Fundamental Rights – Freedom of speech, expression and peaceful assembly -Right to equality – May Day processions and meetings – Articles 12 (1), 12 (2).14 (1) (a) and 14 (1) (b) of the Constitution – Permitted restriction of rights -National security and public order – Article 15 (7) of the Constitution -Section 77 (3) of the Police Ordinance.
On 25. 4. 1996 Deputy Inspector-General of Police (Colombo Range) the 4threspondent approved the application of the Navalanka Sama Samaja Party (NSSP)for a May Day procession and a‘ meeting. However, on 29.4.1996. the 4threspondent informed the Secretary of the NSSP in writing, that due to securityreasons processions within the city of Colombo had been prohibited and thattherefore the permission granted earlier stood revoked. An attempt by somesupporters of the NSSP on the May Day to proceed in procession to their meetingplace was stopped by the Police. Consequently, the NSSP could only hold ameeting. The matter before the Court was whether the restrictions on the NSSPwere permitted by s. 77 (3) of the Police Ordinance in the interest of public orderor by emergency regulations made by the President prohibiting all processionsfor a period of 24 hours from 30th April, 1996, in the interest of national security.
Held:
Article 15 (7) of the Constitution permits restrictions on the rights declaredand recognized by Article 14. Such restrictions must be (i) prescribed byLaw (including regulations made under the law relating to public security)and (ii) in the interest of national security, public order, etc. Thus, section77 (3) of the Police Ordinance empowers the Police to prohibit a procession
sc
Saranapala v. Solanga Arachchi, Senior Superintendent of
Police and Others
167
in the interest of public order. This power is subject to the Constitution;and measures taken to further the maintenance of public order must beunrelated to the suppression of free expression and the incidental restrictionon the exercise of free expression must be no greater than is essentialto the furtherance of public order.
The evidence before the Court did not show a security threat at May Dayprocessions as claimed by the respondents. On the other hand otherpolitical parties including the Lanka Sama Samaja Party (LSSP) had beenpermitted, not only to hold meetings in public places but also to marchon the streets on that day. Hence, the concern of the Police in prohibitingthe NSSP procession was not the furtherance of the interest of nationalsecurity or public order but the suppression of free expression by thepetitioner and other members of the NSSP. In the circumstances theprohibition of the holding of a procession by the NSSP was a transgressionof the petitioner's rights under Articles 14 (1) (a) and 14 (1) (b) of theConstitution.
In permitting other political parties to conduct processions, the respondentsfailed to act even-handedly in applying the provisions of section 77 (3)of the Police Ordinance and the emergency regulations and thereby violatedthe petitioner's fundamental rights declared by Articles 12 (1) and 12 (2)of the Constitution.
Cases referred to:
Hague v. CIO 307 US 496, 515-516, 59 S. Ct. 954, 964, 83L Ed 1423(1939).
United States v. O Brien 391 US 367, 88 S. Ct. 1673, 20 L Ed 2d672 (1968).
Cox v. State of New Hampshire 312 US 569, 61 Ct. 762, 85L Ed 1049.
Kovacs v. Cooper, 336, US 77, 69 S. Ct. 448, 93L ED 513.
Poulos v. State of New Hampshire 345, US 395, 73 S. Ct. 760, 97LEd 1105.
Adderly v. State of Florida 385 US 39, 97 S. a. 242, 171 Ed 2d 149,
Cox v. Louisiana 379 U. S. 536, 555, 85 S. Ct. 453, 464 13L, Ed 2d471.
Walker v. City of Birmingham 388, US 307, 87 S. Ct. 1824, 18L, Ed 2d1210 (1967).
Shuttlesworth v. City of Birmingham 394 US 147, 89 S. Ct. 935 22IEd. 2d 162 (1969).
Goonewardena v. Perera (1983) 1 Sri LR 305, 317-318.
Joseph Perera v. The Attorney-General (1992) 1 Sri LR 199, 214, 218.
168
Sri Lanka Law Reports
[1999] 2 Sri LR.
APPLICATION for relief for infringement of fundamental rights.
D. W. Abeykoon, PC with Nimal Ranawaka and Chandrika Morawaka for thepetitioner.
Nihal Jayasinghe, Deputy Solicitor-General with N. Pulle, SC for the respondents.
Cur. adv. vult.
July 17, 1997.
AMERASINGHE, J.
On 21.06.1996, the Court granted the petitioner leave to proceed onthe basis of the alleged infringements of Article, 12 (1), 12 (2),14 (1) (a) and 14 (1) (fc>) of the Constitution.
The petitioner is the General Secretary of the Government UnitedFederation of Labour and a Politburo member of the Nava SamaSamaja Party. On 15 February, 1996, the Secretary of the Nava SamaSamaja Party (NSSP) applied to the Police with regard to the holdingof the 1996 May Day celebrations. On the 25th of April, 1996, thefourth respondent, who was the Deputy Inspector-General of Police(Colombo Range), respondent to the application of the Secretary ofthe NSSP giving the approved assembly point, the route for theprocession and the meeting place :
"Assembly Point – In front of Hope House, Slave Island.
Route- Union Place – Dawson Street – Park Road –
Baybrooke Street – Dharmapala Mawatha – Turnright at colour lights to Sir James Peiris Mawatha.
Meeting Place
De Mel Park.
sc
Saranapala v. Solanga Arachchi, Senior Superintendent of
Police and Others (Amerasinghe, J.)
16S
However, in his letter dated 29th April, 1996, the fourth respondentwrote to the Secretary of the NSSP stating that, due to securityreasons, processions within the city of Colombo had been prohibitedand that therefore the permission granted earlier stood revoked.
Notwithstanding the revocation, on May Day, 1996, somesupporters of NSSP set off at about 1.15 pm from an assembly pointin front of Hope House, Slave Island, and proceeded along UnionPlace to Dawson Street where they were stopped by the Police. Thefirst respondent, Senior Superintendent, Solanga Arachchi, afterconsulting the fourth respondent – Deputy Inspector-General of PoliceDissanayake – on his radio transmitter, permitted the leader of theNSSP, Dr. Wickramabahu Karunaratne, and three other persons (notincluding the petitioner) to proceed along the route approved earlier,accompanied by the first respondent. Dr. Karunaratne and the otheraccompanying persons eventually reached De Mel Park at about2 p.m. and proceeded to hold a public meeting of the NSSP.
In his written submissions, learned counsel for the respondentssupported the assertion in the affidavit of the first respondent that"there is no fundamental right to use a public highway for ademonstration". Accordingly, the Police seem to have assumed thatsection 77 (3) of the Police Ordinance gives the Police unlimited powerto prohibit the taking out of processions or to impose conditions uponthe holding of processions. Section 77 (3) states : "Notwithstandinganything in any other law, an officer of police of a rank not belowthe grade of Assistant Superintendent, if he considers it expedientso to do in the interests of the preservation of public order, maygive directions (whether orally or in writing) prohibiting the taking outof any procession, or imposing upon the person or persons organizingor taking part in the procession such conditions as appear to himto be necessary, including conditions prohibiting or restricting thedisplay of flags, banners or emblems".
170
Sri Lanka Law Reports
[1999] 2 Sri LR.
There appears to be a misunderstanding : The Constitution is thesupreme law and the powers conferred by section 77 (3) of the PoliceOrdinance are subject to the provisions of the Constitution. Article 14(1) (a) of the Constitution declares that every citizen is entitled to thefreedom of speech and expression including publication. Article 14 (1)(6) declares that every citizen is entitled to the freedom of peacefulassembly. The petitioner complains that his fundamental rightsguaranteed by Articles 14 (1) (a) and (b) had been violated by therefusal of the police to allow him and the members of his politicalparty to march on the streets on May Day. While I do not acceptthe view that an apparently limitless variety of conduct can be labelled"speech" whenever the person engaging in the conduct intends therebyto express an idea, I do, however, accept the fact that marching,parading and picketing on the streets and holding meetings in parksand other public places may constitute methods of expression entitledto the protection of the freedoms declared and recognized in Articles14 (1) (a) and (b) of the Constitution. Streets and parks and publicplaces are held in trust for the use of the public and have beencustomarily used for purposes of assembly, communicating thoughtsbetween citizens, and discussing public questions. Such use of thestreets, parks and public places is a part of the privileges, immunities,rights and liberties of citizens : See Hague v. CI&'K In Sri Lankait is customary for mass meetings known as 'May Day rallies, to beheld on the 1st day of the month of May each year in parks andother public places : These meetings are usually preceded by personsbelonging to or supporting trade unions or political groups assemblingat various pre-arranged points and marching along the streets onthe way to their meetings. Such activities are protected by Articles14 (1) (a) and (b) of the Constitution.
The complaint before us relates to denial of the use of public streetsto conduct such a May Day procession. It is a matter of commonknowledge that when there is such a procession there is acommunication of ideas by slogan-shouting marchers bearing flags,banners, emblems and so on. There is speech as well as other formsof expression when such a procession takes place.
sc
Saranapala v. Solanga Arachchi, Senior Superintendent of
Police and Others (Amerasinghe, J.)
171
When "pure speech" and "non-speech" elements are combined inthe same course of conduct, a sufficiently important governmentalinterest in regulating the non-speech element could, in my view, justifyincidental limitations on the exercise and operation of the fundamentalrights declared and recognized by Articles 14 (1) (a) and (b). Tocharacterize the quality of governmental interest that must appear,Courts have employed a variety of descriptive terms : 'compelling';'substantial'; 'subordinating'; 'paramount'; 'cogent'"; 'strong'. Admittedly,the terms are not exact. However, as Chief Justice Warren, deliveringthe opinion of the Court, said in United States v. O'BrierF* : "Whateverimprecision inheres in these terms, we think it clear that a governmentregulation is sufficiently justified if it is within the constitutional powerof the government; if it furthers an important or substantial interest;if the government interest is unrelated to the suppression of freeexpression; and if the incidental restriction on alleged FirstAmendment Freedoms is no greater than is essential to the furtheranceof that interest".
The constitutional power of the government to impose restrictionson the exercise and Operation of the rights declared and recognizedby Article 14 of the Constitution is conferred by Article 15 (7) of theConstitution. Article 15 (7) limits the manner and the circumstancesin which restrictions may be imposed : A restriction must (1) beprescribed by law (including regulations made under the law for thetime being relating to public security); and (2) such restrictions mustbe "in the interests of national security, public order and the protectionof public health or morality, or for the purpose of securing duerecognition and respect for the rights and freedoms of others, ormeeting the just requirements of the general welfare of a democraticsociety". Article 15 (7) makes it clear that the right to speech or othermethods of expression is not absolute, but relative, and must beexercised in subordination to laws that may impose restrictionspermitted by Article 15 (7) of the Constitution for the sake of achievingcertain ends. The privilege of a citizen to use the streets, parks andpublic places for communication of views on public questions maybe regulated by the government in certain circumstances.
172
Sri Lanka Law Reports
[1999] 2 Sri LR.
In the matter before us, the restriction on the NSSP processionwas imposed by law, namely (1) section 77 (3) of the PoliceOrdinance – which permitted the fourth respondent in the interestsof public order to prohibit the taking out of a procession; and (2) theEmergency Regulation made by the President under section 5 of thePublic Security Ordinance prohibiting all processions for a period oftwenty-four hours from midnight on the 30th of April, 1996.The restrictions were said to be in the interests of national securityand public order and were, therefore, ex facie, constitutionally withinthe power of the government to impose.
Did the restriction on the NSSP procession further an importantor substantial interest of the government? In general, it must berecognized that a government has a strong interest in regulating theuse of streets and other public places : Cox v. State of NewHampshire!3>; Kovacs v. Cooped'-, Poulos v. State of New Hampshire!®-,Adderly v. State of Florida(6). Governmental authorities have the dutyand responsibility to keep their streets open and available for move-ment and they must exercise a great deal of control in the interestof traffic regulation and public safety : Cox v. Louisiana!®. Whenprotests take the form of mass demonstrations, parades, or picketingon public streets and pavements, the free passage of traffic and theprevention of public disorder and violence become important objectsof legitimate state concern: Walker v. City of Birmingharrfe). When thematter of public safety is complicated by other exceptional facts, suchas acts of terrorism, government interest in intervention mustnecessarily be increased in a commensurable manner. I hold that.ex facie, the prohibition on the NSSP procession did further animportant or substantial interest of government.
However, government interest must be unrelated to the suppressionof free expression : The right of free speech and expression cannotbe abridged or denied in the guise of regulation for the pretendedpurpose of furthering legitimate government interests : Cf. Hague v.CIO (supra). In Shuttlesworth v. City of Birmingham!™-, a statute gave
sc
Saranapala v. Solanga Arachchi, Senior Superintendent of
Police and Others (Amerasinghe, J.)
173
the City Commission absolute power to refuse a parade permit when-ever they thought "the public welfare, peace, safety, health, decency,good order, morals or convenience require that it be refused". TheUnited States Supreme Court emphasized the need to strictly andnarrowly construe the powers conferred on public authorities to restrictthe use of public places, such as streets and parks, which have beencustomarily used for purposes of assembly, communicating thoughtsbetween citizens, and discussing public questions. Justice Stewart,who delivered the opinion of the Court, said : "Although the Courthas recognized that a statute may be enacted which prevents seriousinterference with normal usage of streets and parks … we haveconsistently condemned licensing systems which vest in an admin-istrative official discretion to grant or withhold upon broad criteriaunrelated to proper regulation of public places. Even when the useof its public streets and sidewalks is involved, therefore, a municipalitymay not empower its licensing officials to roam essentially at will,dispensing or withholding permission to speak, assemble, picket orparade, according to their own opinions regarding the potential effectof the activity in question on the 'welfare', 'decency' or 'morals' of thecommunity." The Court said that in the matter before it, it was "evidentthat the ordinance was administered so as in the words of Chief JusticeHughes, 'to deny or unwarrantedly abridge the right of assembly andthe opportunities for the communication of thought . . . immemoriallyassociated with resort to public places' ".
There is no doubt in terms of section 77 (3) of the Police Ordinancean officer of Police of a rank not below the grade of AssistantSuperintendent – the officer in the matter before us was a DeputyInspector-General – if he considers it expedient to do so in the interestsof the preservation of public order, may give directions prohibiting thetaking out of any procession or impose upon the person organizingor taking part in the procesion such conditions as appear to himnecessary : Goonewardena v. Pereraf'°K Undoubtedly it is within theconstitutional power of the government to preserve public order; andmeasures taken to further the maintenance of public order could be
174
Sri Lanka Law Reports
[1999] 2 Sri LR.
justified even if they incidentally limit the freedoms guaranteed byArticles 14 (1) (a) and (b) of the Constitution. Such measures, however,must be unrelated to the suppression of free expression, and theincidental restriction on the exercise of the free expression must beno greater than is essential to the furtherance of the interest inmaintaining public order. In other words, section 77 (3) of the PoliceOrdinance, does not, in my view, empower Police officers to 'roamat will1 in giving directions prohibiting the taking out of any processionor imposing conditions on persons taking part in a procession.
The position of the respondents is that the National IntelligenceBureau had information of a "possibility of Northern Terrorists strikingColombo in the guise of participating in demonstrations to be heldon the 1st of May, 1996". In the circumstances, acting under theprovisions of section 77 (3) of the Police Ordinance, the NSSP wasinformed by the fourth respondent – a Deputy Inspector-Generalof Police – that the earlier decision granting permission to hold a'procession' had been revoked for security reasons. The fourthrespondent in his affidavit states that “the withdrawal of permissiongranted to the Nava Sama Samaja Party to take out a procession,was consequent to the information I received in regard to thesecurity threat apprehended at such processions".
According to Mr. M. R. Latiff, Assistant Superintendent of Police,he was “In charge of the Northern Terrorism desk of the NationalIntelligence Bureau collecting intelligence pertaining to NorthernTerrorism which has spread to other parts of the country". It wasMr. Latiff's views that were supposed to have guided the respondents.There was no other evidence on the matter submitted by therespondents. Mr. Latiff in his affidavit states as follows :
I state that I received intelligence reports of probable terroristattacks in the city of Colombo on May Day.
I state that I was further informed that the said terrorist attackswere to be launched at places where there would be minimum
sc
Saranapala v. Solanga Arachchi, Senior Superintendent of
Police and Others (Amerasinghe, J.)
175
security in order to disrupt normalcy and the security inColombo. I state that it is almost impossible to enforce a strictsecurity arrangement at a demostration.
I state that I accordingly informed the Director of the NationalIntelligence Bureau about the aforesaid information receivedby me.
I state that I am aware that the said information received byme was accordingly communicated to the DIG Colombo the 4threspondent in SC Application No. 470/96 [the matter before thisCourt] in order that necessary precautions would be taken toavoid the security threat to the city."
Although the fourth respondent, supported by the first respondent,states that the procession of the NSSP was prohibited because therewas information with regard to "the security threat apprehendedat such processions", (the emphasis is mine) there is nothing inMr. Latiff's affidavit to show that there was such a security threat :If the information supplied by Mr. Latiff was the basis for action,namely, that "terrorist attacks were to be launched at places wherethere would be minimum security … it is almost impossible to enforcea strict security arrangement at a demonstration", it is difficult tounderstand why public meetings, including a meeting of the NSSPat De Mel Park and a joint meeting of the LSSP and the People'sAlliance, were permitted in the city of Colombo. I have no hesitationin rejecting the respondents' explanation that the NSSP processionwas prohibited for security reasons. In my view the prohibition ofthe NSSP procession was for the purpose of the suppression of thefree expression by members of that party.
The petitioner in fact adduced evidence by way of photographspublished in newspapers and an affidavit from a reporter for "Yukthiya”supporting his allegation that members of other political parties,including the Lanka Sama Samaja Party (LSSP), had been permitted,not only to hold meetings in public places, but also to march on thestreets on that day. The respondents do not state that other politicalparties had also been informed that their processions had beencancelled under the terms of section 77 (3) of the Police Ordinance.
176
Sri Lanka Law Reports
[1999} 2 Sri LR.
The fact that the members of the LSSP had gathered together at theirassembly point is evidence of the fact that they had not been informedthat their procession had been cancelled. In fact, the position of therespondents is that the other processions were prohibited by anEmergency Regulation made on the 30th of April, 1996, banning allprocessions throughout the country for twenty-four hours commencingat midnight on the 30th of April, 1996. The NSSP procession hadbeen prohibited by the fourth respondent's letter dated the 29th ofApril. Why were steps not taken to prohibit the processions of otherpolitical parties if security considerations prompted the prohibition ofthe NSSP procession?
Mr. Henry Perera, Senior Superintendent of Police, in his affidavitstated that the members of the LSSP had assembled at CampbellPark in order to proceed in procession to their meeting place at theTown Hall. He informed the leaders of the LSSP that “in terms ofthe Emergency Regulations in force at the time, all public processionshad been now prohibited and accordingly produced a copy of theEmergency Regulations to the said leaders of the Lanka Sama SamajaParty". When the leaders of the LSSP informed him that they wishedto proceed to the Town Hall for their meeting, he informed themthat "they would have to do so in scattered groups and not a pro-cession". The leaders and their followers, he says, having "co-oper-ated" with him, proceeded “in scattered groups" and held their "jointmeeting at the Town Hall with the People's Alliance . . ."
What was a "scattered group"? The photographs show a largenumber of persons following a banner held aloft with the words "LankaSama Samaja Party”. It looks like any ordinary May Day procession."Scattered groups” obviously did not mean that some went one wayand the others went some other way. They all followed the same route.Assuming that, as learned counsel for the respondents endeavoredto explain, the Lanka Sama Samaja Party members followed eachother on the same route but in groups, as directed by the Police,were they then not marching along in orderly succession when theywere walking behind each other in groups specified either by the Policeor by the leaders of the political party? Surely, that is the way inwhich "procession” is ordinarily understood? And so, how does the
sc
Saranapala v. Solanga Arachchi, Senior Superintendent of
Police and Others (Amerasinghe, J.)
177
Police differentiate between the NSSP and the LSSP except forpolitical reasons? The respondents admit that in the case of the NSSPonly Dr. Karunaratne and three others were allowed to proceed fromtheir assembly point to their place of meeting. If the members of theLSSP were allowed to proceed in “scattered groups" of the sortdepicted in the photographs, why were the members of the NSSPdifferently treated? The concern of the Police in prohibiting the NSSPprocession was, in my view, not the furtherance of the governmentinterest in national security or public order, but the suppression offree expression by the petitioner and other members of hispolitical party.
In the circumstances, I am of the view that the prohibition of theholding of a procession by the NSSP by the invocation of the powersconferred by section 77 (3) of the Police Ordinance, thereby preventingthe petitioner from marching with members of his political party onMay Day was a transgression of his fundamental rights of freedomof speech and expression declared and recognized by Article 14 (1)of the Constitution. The prohibition was not for the purpose of main-taining public order but for the suppression of free expression by themembers of the NSSP, including the petitioner. Section 77 (3) of thePolice Ordinance and the Emergency Regulation dated the 30th ofApril, 1996, were used by the Police to deny the petitioner the rightof peaceful assembly declared and recognized by Article 14 (1) (b)of the Constitution and the opportunities for communication traditionallyassociated in Sri Lanka with resort to the streets by political partieson May Day, thereby denying him the right to freedom 6f speech andexpression declared and recognized by Article 14 (1) (a) of theConstitution. By permitting members of other political parties to marchwhile denying or seriously abridging the petitioner's right to march,the respondents failed to act even handedly in applying the provisionsof section 77 (3) of the Police Ordinance and the Emergency Regu-lations and thereby violated the petitioner's fundamental right to equalitybefore the law and equal protection of the law declared by Article12 (1) of the Constitution, and the petitioner's fundamental rightdeclared and recognized by Article 12 (2) not to be discriminatedagainst on the ground of political opinion :
178
Sri Lanka Law Reports
(1999] 2 Sri LR.
Acting under the powers conferred by section 5 of the PublicSecurity Ordinance, the President on 30 April, 1996, by notificationin the Gazette prohibited all public processions in every region of thecountry during a period of twenty-four hours from midnight on 30thApril, 1996. Mr. Abeykoon submitted that restrictions on the exerciseand operation of fundamental rights, if they are to be regarded aspermissible, legitimate and valid, must be based on one or more ofthe grounds set out in Article 15 of the Constitution and must be strictlyreferable to it : The burden of proving that a restriction was inthe interests of national security or public order lies on the respond-ents : Per Sharvananda, CJ. in Joseph Perera v. The Attorney-Generaf(u). Mr. Abeykoon submitted that the respondents had failedto discharge the burden of showing that the total ban on all processionsof every kind, including funeral and religious processions, throughoutthe country was required for the purposes of national security or publicorder. I am in agreement with the principle that incidental restrictionsof free speech and expression must be no greater than is necessaryfor the furtherance of a government interest as prescribed by Article15 (7) of the Constitution. However, in the view of the conclusionsI have come to on the application of the Emergency Regulation onthe assumption that it was valid, it is not necessary for me to considerwhether the regulation should have been more narrowly drawn andwas invalid on account of being over-broad.
For the reasons set out in my judgment, I declare that theState violated the fundamental rights of the petitioner declared byArticles 12 (1), 12 (2), 14 (1) (a) and 14 (1) (b) of the Constitution.
The State shall pay the petitioner a sum of Rs. 15,000 as costs.
WIJETUNGA, J. – I agree.GUNAWARDANA, J. – I agree.
Relief granted.