003-SLLR-SLLR-1999-V-2-SUMITH-JAYANTHA-DIAS-v.-REGGIE-RANATUNGE-DEPUTY-MINISTER-OF-TRANSPORT-AND.pdf
8
Sri Lanka Law Reports
{1999/ 2 Sri LR.
SUMITH JAYANTHA DIAS
v.REGGIE RANATUNGE, DEPUTY MINISTEROF TRANSPORT AND OTHERS
SUPREME COURTFERNANDO. J.,
DHEERARATNE. J. ANDGUNAWARDANA, J.
S.C. APPLICATION NO. 98/97NOVEMBER 09, 1998
Fundamental rights – Articles 11, 13 (1) and 13 (2) of the Constitution – Liabilityof private individuals in proceedings under Article 126 of the Constitution.
The petitioner led an electronic news gathering team of the Independent TelevisionNetwork (ITN) to film a programme named "Vimasuma*. The team travelled ina van belonging to the ITN. They carried with them the necessary equipmentincluding a valuable camera. The ITN logo was fixed prominently on the van usedby them and on the camera. During their return to Colombo after conducting theprogramme, the petitioner observed at the Miriswatte junction a burning lorry onthe road with a crowd gathered around it. The petitioner and his team commencedfilming that event with the camera and other equipment when they were interruptedby the 1st respondent, a Deputy Minister who arrived in an Intercooler Pajeroaccompanied by some other vehicles and several persons including the 2ndrespondent (a PA Pradeshiya Sabha member), the 4th respondent (a PA supporter)and the 5th respondent (a police sergeant). The 1st respondent demanded thatthe petitioner give him the tape alleging that the petitioner had filmed the 1strespondent and the Pajero. As it later transpired, the 1st respondent had thoughtthat the television team was from the TNL and were attempting to make a filminvolving the 1st respondent with the burning of the lorry.
The respondents attempted to seize the camera, but the petitioner resistedwhereupon on the instigation of the 1st respondent, the 5th respondent and othersput him on the ground and assaulted him; next the 2nd, 3rd and 5th respondentslifted the petitioner and put him into a police jeep. He was again assaulted bythe 5th respondent inside the jeep and made to handover his shirt, ITN identitycard and the wallet containing Rs. 3,700 to a police officer. At the Gampahapolice station the petitioner's shirt and the identity card were returned but whenhe asked for his money the 6th respondent, a police sergeant, abused him inobscene language. The 1st respondent was seated in the QIC's chair and
SCSumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of Transport and Others (A de Z. Gunawardana, J.)9
questioned the petitioner regarding the tape whilst a uniformed police officer stoodby. The petitioner explained that he was working for the ITN, whereupon the 1strespondent suggested an amicable settlement. The petitioner was released nextday after six and a half hours of detention. The petitioner received hospitaltreatment for his injuries which he alleged were sustained during the allegedassault. The injuries were consistent with assault.
Held:
The petitioner's rights under Articles 11, 13 (1) and 14 (1) (a) of theConstitution were infringed by the acts of the police officers, and the 1st,2nd and 3rd respondents were also personally liable for such acts by reasonof approval, connivance and acquiescence and participation in respect ofsuch infringement of rights.
Cases referred to:
Saman v. Leeladasa (1989) 1 Sri LR 10.
Fernando v. Sri Lanka Broadcasting Corporation (1996) 1 Sri LR 157, 173,179.
Faiz v. Attorney-General (1995) 2 Sri LR 372, 383.
APPLICATION for relief for infringement of fundamental rights.
L. C. Seneviratne, PC with Ronald Perera for the petitioner.
1st, 2nd and 3rd respondents absent and unrepresented.
N. Pulle SC for the 4th and 7th respondents.
Mohan Perera for the 5th and 6th respondents.
Cur. adv. vult.
December 17, 1998.
A. DE 2. GUNAWARDANA, J.
This application was filed on 30. 1. 1997 and leave was granted on13. 2. 1997 for the alleged violations of the petitioner's fundamentalrights enshrined in Articles 11, 13 (1) and 14 (1) (a) of the Constitution.The court directed notice to be issued on all seven respondents namedin the petition.
10
Sri Lanka Law Reports
(1999] 2 Sri LR.
However, when the case was taken up for hearing on9. 11. 98, 1st, 2nd and 3rd respondents were absent and unrepre-sented. According to the journal entry dated 23. 5. 1997, GaminiPerera, Attorney-at-law had filed proxy of the 1st, 2nd and 3rdrespondents. All three proxies which are filed of record are dated14. 5. 97 and have been filed in this court also on the same day.In the motion filed along with the proxies, the Attorney-at-law hasmoved for four weeks' time to file objections as, "the 1st respondenthas very recently been informed about the Attorney-General's intentionnot to appear and file objections on his behalf". The motion furtherstated that, “I respectfully move that Vour Lordship's Court be pleasedto move this Application out from "the argument list" and be pleasedto list in the "list of mention" for allowing the counsel of both partiesto suggest a suitable date for argument". On 23. 5. 1997 when thismatter came up for hearing Attorney-at-law Gamini Perera hasappeared for 1st, 2nd and 3rd respondents and the said respondentswere granted time till 30. 6. 1997, finally, for objections and the casewas fixed for hearing on 9. 9. 1997. On 8. 9. 1997 Attorney-at-lawfor the 1st, 2nd and 3rd respondent has filed a motion moving foranother two weeks' time to file objections. When the case came upfor hearing on 9. 9. 1997 counsel for the 1st, 2nd and 3rd respondentshad moved for one month's time to file objections and the hearingwas fixed for 3. 12. 1997. When the case came up for hearing on3. 12. 1997, the appearances have been as before, and the hearinghas been fixed for 2. 4. 1998. On 2. 4. 1998 when the case cameup for hearing, the court had been informed that the Attorney-at-lawGamini Perera was indisposed, and the case has been postponedfor 23. 7. 1998. On 23. 7. 1998 the appearance of Attorney-at-lawGamini Perera, does not appear in the docket. The case had beenpostponed for 9. 11. 1998. When the case came up for hearing on9. 11. 1998 counsel for the 1st, 2nd and 3rd respondents, GaminiPerera was absent and the 1 st, 2nd and 3rd respondents themselves,were also absent. Thus it is seen that although the 1st, 2nd and 3rdrespondents have filed proxy and have been represented on severaloccasions by counsel, the counsel himself, and the said respondentsthemselves were absent on 9. 11. 1998. They have also failed tofile objections, and written submissions, although several opportunitieswere given to them to do so. Having considered all the circumstances,
SCSumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of Transport and Others (A. de Z. Gunawardana, J.) 11
the court decided to hear this application although the 1st, 2nd and3rd respondents were absent and unrepresented.
The petitioner has stated in his petition that on 1. 1. 1995 thepetitioner led an Electronic News Gathering team of the IndependentTelevision Network (ITN), to film a programme named "Vimasuma"which was to be telecast on 5. 1. 1997. The team consisted of fiveother members. This team had travelled in a van belonging to theITN. Among the equipment taken on this trip was a Sony BetacamProfessional Camera (valued at Rs. 2 million), a Betacam Recorder(valued at over Rs. 800,000), a "Zenhizer 541" Microphone, "Zenhizer"clip-on Microphone, Mini Brute Lights and several other lights. TheITN logo was fixed prominently on the van they travel and on thecamera. Having filmed several sequences they travelled on the Kandyroad to get to Colombo.
At abut 10.00 pm when the van was near the Miriswatte Junction,on the Colombo-Kandy road the petitioner had seen a lorry on fireon the middle of the road. There was a large crowd gathered on theroad around the burning lorry. Several police officers in uniform wereon duty at this point. As it appeared to the petitioner, as a newsworthyevent, the petitioner directed the vehicle to stop and got down withthe camera and the rest of the team. They had dropped off thecameraman at the Gampaha railway station and the cameraman wasnot present. The petitioner who had been trained, operated the camera.The recorder was carried, by a team member, Ranga JanakaJayasinghe.
While the burning lorry and the surrounding area was being filmed,the petitioner had seen as unregistered Intercooler Pajero accompa-nied by some other vehicles travelling towards Gampaha. They stoppedamidst the crowd. The petitioner turned towards the Pajero with thecamera in his hand. The petitioner saw the 1st respondent, who isthe Deputy Minister of Transport, Environment and Women's Affairsand People's Alliance Member of Parliament for Gampaha District,in the front seat of the Pajero. The 1st respondent called out to thepetitioner, and demanded from the petitioner as to why he filmed the1st respondent and the number plate of the Pajero. The petitioner
12
Sri Lanka Law Reports
[1999] 2 Sri LR.
showed his ITN Identity Card avid denied that he filmed the 1strespondent and the number plate of the Pajero. But the 1 st respondentshouted that the petitioner had in fact filmed the 1st respondent, anddemanded that the petitioner give the tape to the 1st respondent. Thepetitioner replied that he cannot give the tape as it was State property.The 1st respondent ordered his security officers and the personsaccompanying him to grab the tape from the petitioner's camera-thereupon several persons who accompanied the 1st respondent inthe said convoy of vehicles, including the 2nd respondent, who is aPeople's Alliance Member of the Minuwangoda Pradeshiya Sabha, the3rd respondent a supporter of the People's Alliance, and a PoliceOfficer, Sergeant 19730 Rajapakse (the 5th respondent), in civil clothing,surrounded and assaulted the petitioner. They tried to wrest the tapefrom the petitioner's camera. Some of these persons tried to smashthe camera on the ground. The petitioner managed to save the cameraand handed it over to an uniformed Police Officer who was presentthere. The petitioner requested the said Police Officer to save thecamera as it was valuable State property. The petitioner was put onthe ground and assaulted by the 2nd, 3rd and 5th respondents andother unknown persons. Some persons, including the 2nd, 3rd and5th respondents tried to push the petitioner into a Police jeep. The2nd respondent threatened the Police Officers and said that if theywere unable to handle the petitioner, he will use his boys. Thepetitioner was lifted by this group of persons and thrown inside theback of the Police jeep. The 5th respondent assaulted the petitionerwhile the petitioner was inside the jeep. Two Police Officers restedtheir feet on the petitioner's back, and did not allow him to get up.The 5th respondent ordered the petitioner to remove his shirt andhand over the contents of his pockets, including the ITN Identity Card,and the petitioner did so. The petitioner's Driving Licence and the walletcontaining Rs. 3,700 were also removed by an unidentified Policeofficer, while the petitioner was inside the Police jeep.
At the Gampaha Police Station the petitioner's shirt and the ITNIdentity Card were handed over to him. When the petitioner requestedthat his wallet with Rs. 3,700 be returned, Sergeant 11228 Mahinda,the 6th respondent, abused the petitioner in foul language. The 6threspondent shouted at the petitioner stating that the Police were not
SCSumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of Transport and Others (A. de Z. Gunawardana, J.) 13
thieves. The petitioner was then taken to the Office of the officer-in-charge of the Gampaha Police Station. The petitioner saw the 1strespondent seated in the chair of the officer-in-charge. Another uni-formed Police officer stood by the side of the 1st respondent. The1st respondent questioned the petitioner and demanded to know wherethe tape was. The petitioner explained to the 1st respondent that hewas merely performing his official duties as an Officer of ITN, a Stateinstitution. The petitioner once again proved the petitioner's identityto the 1st respondent by showing his ITN Identity Card and explainedthat he was the Head of the News Section of the ITN. At that pointthe 1st respondent told the petitioner that the petitioner was assaultedby the 1st respondent's voters in the area because the 1st respondentand others with him thought that the petitioner and his team wereemployed by TNL, a privately owned television company. The 1strespondent said that this matter can be settled amicably and to handover the tape in his custody to the Police and to have his statementrecorded by the Police. The 1st respondent further said that heobjected to the petitioner filming because he feared that the petitionerwould film the said burning lorry and the 1st respondent’s vehicle andsay that the 1st respondent set fire to the lorry and fled the sceneof the incident.
Thereafter the petitioner was taken to the Gampaha hospital to beexamined by the Judicial Medical Officer to ascertain whether thepetitioner was intoxicated. The Gampaha JMO, merely asked thepetitioner to open and close his eyes and inquired as to how he felt.No blood test or breathalyser test was done on the petitioner by theGampaha JMO. The petitioner's position is that he did not consumeany alcohol on that day.
The petitioner's statement and the statements of the members ofthe petitioner's team were recorded by the Gampaha Police after thevisit to the hospital. The petitioner states that he was unaware of whathe stated in that statement as he was in severe pain and discomfort,at that time, due to the assault. The said statement was not readover to the petitioner prior to the petitioner's signature being taken.The other members of the petitioner's team also made statements tothe Gampaha Police on that day. The petitioner has annexed marked
14
Sri Lanka Law Reports
(1999] 2 Sri L ft
P2A, the statement and P8A the affidavit of Ranga Janaka Jayasinghe,P2B the statement and P8B the affidavit of Upul Pushpakumara, P2Cthe statement, and P8C the affidavit of Anura S. Arachchige andP3 the affidavit of Gratien P. Gunawardena. The said affidavits supportthe averments in the petition of the petitioner.
The petitioner had been in Police custody for over six and a halfhours and had been released on the early morning of 2nd January,1997.
The petitioner specifically alleges that the said illegal acts and theensuing assault took place at the behest of the 1st respondent, whoat no stage sought to prevent the petitioner from being assaulted asstated above.
On 3.1.1997, as the petitioner was in agony and discomfort, thepetitioner has sought treatment at the Colombo South Hospital. TheColombo South JMO Dr. Dassanayake had examined the petitionerand prepared a detailed report. The said report which was called forby this court, gives details of the injuries sustained by the petitioner,and is filed of record.
The petitioner has also produced two medical certificates markedP4A and P4B from Colombo South Hospital and Sri JayawardenapuraHospital, respectively.
The report of the Gampaha JMO, who examined the petitioner first,on 2.1.1997 at 12.15 am, is produced marked 5R4. The reason forexamination as stated in the said report was to ascertain the levelof intoxication and the injuries. Strangely, the Doctor had found noinjuries. However, he has noted in the said report that the petitionerwas smelling of alcohol and under the influence of alcohol. It is tobe noted here that the petitioner's position is that, no blood tests orbreathalyser test were done and he did not consume alcohol on thatday.
The affidavits filed by the other respondents do not disclose whetherthe JMO, who examined the petitioner, at the Gampaha Hospital
SCSumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of Transport and Others (A. de Z. Gunawardana, J.) 15
carried out any tests. The 5th respondent, who had accompanied thepetitioner to the Gampaha Hospital states, “I was not present at thetime of examination of the petitioner by the said JMO". Thus theassertion made by the petitioner that he was not subjected to anytests by the JMO at the Gampaha Hospital, stands uncontradicted.In the circumstances the finding of the JMO Gampaha that thepetitioner was under the influence of alcohol is open to doubt. Anothermatter I wish to deal with here is the finding of the Gampaha JMOthat the petitioner had no injuries, as recorded in the Medico-LegalReport marked 5R4. However, according to the Medico-Legal Reportfurnished to this court, and filed of record, made by of Dr. P. B.Dassanayake, JMO Colombo South, the petitioner had been examinedat 12.02 pm on 3.1.97 at Kalubowila Hospital. The following 7 injurieshave been noted in the said Report :
Area of oedema (swelling) on the upper part of the right sideof the neck 3×3 cm.
A superficial abrasion of 3 x 1.5 cm over the right upper armon outer side of the upper 1/3.
An abrasion of 3 x 2 cm over the inner side of the right elbowjoint.
A contusion of 3 x 1 cm over the left side of the back of thechest.
A contusion of 6 x 3 cm over the middle of the back of thechest.
A contusion of 5 x 3 cm over the back of the right chest.
A linear abrasion of 4 cm long over the back of chest.
It is noted there that all the injuries were fresh. It is further statedthat, a blunt weapon could have caused all the injuries. The historygiven by the petitioner was that he was assaulted by the securityguards of a politician and the Police with hands and legs, on1. 1. 97 at 10.30 pm, at Gampaha, Miriswatte, when he was filminga lorry set on fire. It is to be observed that the nature of the injuriessustained by the petitioner, are consistent with such an assault. Inthe circumstances, it is strange, as to how the JMO Gampaha failedto observe any injuries on the petitioner when he examined thepetitioner on 2. 1. 97 at the Gampaha Hospital. Hence the report of
16
Sri Lanka Law Reports
(1999] 2 Sri L ft
the JMO Gampaha in regard to the intoxication and the absence ofinjuries on the petitioner, lacks credibility.
The averments in the affidavit of the petitioner are supported bythe affidavits of the members of the team who were present at theplace of the incident, and further corroborated in regard to the injuriessustained, by the Medical Report of Dr. P. B. Dassanayake, JMO,Colombo South. Therefore there is credible evidence to conclude thatthe petitioner sustained the above injuries as a result of the saidassault by the said respondents.
The petitioner has alleged that the said assault, “took place at thebehest of the 1st respondent who had at no stage sought to preventthe petitioner from being assaulted and manhandled". The 1st respond-ent has called out the petitioner and demanded to know from thepetitioner as to why he filmed the 1st respondent and the numberplate of the Pajero. The 1st respondent had shouted at his securityofficers and persons accompanying him to grab the tape from thepetitioner's camera. Thereupon several persons who accompanied the1st respondent including the 2nd, 3rd respondents and the 5th re-spondent surrounded and assaulted the petitioners and tried to wrestthe tape from the petitioner's camera. They also tried to smash thecamera on the ground. At the Gampaha Police Station the petitionerhad seen the 1st respondent seated in the chair of the officer incharge of the Police Station. The 1st respondent had questioned thepetitioner and demanded to know where the tape was. The petitionerhas explained that he was merely performing his offical duties as anofficer of the ITN, a State institution. The petitioner has once againproved the petitioner's identity to the 1st respondent by showing hisITN identity card. At that point the 1st respondent had told thepetitioner that the petitioner was assaulted by the 1st respondent'svoters in the area because the 1st respondent and the others withhim thought that the petitioner and his team were employed by TNL,a privately owned television company. The 1st respondent had statedthat he objected to the petitioner filming because he feared that thepetitioner would film the said burning lorry, and the 1st respondent'svehicle, and say that the 1st respondent set fire to the lorry and fledthe scene of the incident. In spite of the aforementioned specificallegations against the 1st respondent, the 1st respondent did not fileobjections nor did he participate or was represented by counsel atthe hearing of this application. Thus the said averment by the petitionerstands uncontroverted.
SCSumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of Transport and Others (A. de Z. Gunawardana, J.) 17
There is a specific averment that the 2nd and 3rd respondentsassaulted the petitioner, and tried to wrest the tape from the petitioner'scamera. The 2nd and 3rd respondents with others had tried to pushthe petitioner into a Police jeep. The 2nd respondent is also allegedto have threatened the Police officers and stated that if they wereunable to handle the petitioner he will use his boys. The 2nd and3rd respondents along with others have lifted the petitioner, and thrownhim inside the back of the Police jeep. The specific allegations againstthe 2nd and 3rd respondents have not been denied'by filing objectionsnor were they present or represented by counsel at the hearing ofthis application. Thus the said allegations against the 2nd and 3rdrespondents stand uncontradicted.
It is alleged in the petition that the 5th respondent who was incivil clothing at the time surrounded and assaulted the petitioner alongwith others and tried to wrest the tape from the petitioner's camera.Thereafter the 5th respondent along with others had tried to smashthe camera on the ground. The 5th respondent along with otherpersons had put the petitioner on the ground and assaulted him. The5th respondent had tried to push the petitioner into a Police jeep andlater lifted the petitioner along with others and thrown him inside theback of the Police jeep. The 5th respondent had assaulted thepetitioner whilst the petitioner was inside the Police jeep. The 5threspondent had rested his feet on the petitioner's back and did notallow him to get up while he was inside the Police jeep. The 5threspondent had ordered the petitioner to remove his shirt and handover the contents of his pocket. The 5th respondent had filedobjections and denied the above allegations. He has stated that hewas off duty on that day and was called to assist a Police party ledby Sub-Inspector Munasinghe. When he was engaged in the task ofextinguishing the fire, he saw a crowd of media personnel filming thescene of the burning lorry. He had observed that the petitioner wasinvolved in an argument with a group of persons, and fearing thatthe petitioner would be assaulted by the crowd he along with otherPolice officers put the petitioner into the jeep with great difficulty, asthe petitioner was trying to resist. He has categorically denied thathe assaulted the petitioner before the arrest or whilst in the jeep. Hisposition is that he took the petitioner into custody, as he feared that
18
Sri Lanka Law Reports
[1999] 2 Sri LR.
the petitioner might be assaulted and there would be a breach of thepeace. He has denied that he ordered the petitioner to remove hisshirt. He has explained that the petitioner's shirt was torn when anotherPolice officer pulled the petitioner by his shirt to prevent him frombeing hit by a passing bowser, when the petitioner tried to jump fromthe jeep. Thus it is discernible from the above averments of the affidavitof the 5th respondent that, he was present at the scene in civil clothesand that he "with difficulty" put the petitioner into the back of the jeep.It is also admitted that the petitioner's shirt was torn as it was pulledby another officer whilst travelling in the jeep. These avermentspartially corroborate the averments made by the petitioner.
It is alleged in the petition that at the Gampaha Police Station whenthe petitioner requested that his wallet with the contents includingRs. 3,700, in money, be returned, the 6th respondent had abusedthe petitioner in foul language. The 6th respondent had shouted atthe petitioner stating that the Police were not thieves. The 6th re-spondent had filed objections and had denied the allegations againsthim. He has stated in his affidavit that he was off duty that day, butwas asked to report to the Station by the officer-in-charge at that time.When he went to the Police Station he has seen a group of personsat the Station. He has recorded the statement of the 2nd respondentand thereafter left the Station. He has categorically denied havingassaulted the petitioner. In fact the petition does not reveal the manneror the time at which the petitioner was assaulted by the 6th respondent,except the general averment in paragraph 15 of the petition that:"… the petitioner was assaulted by members of the GampahaPolice, namely the 5th and 6th respondents".
The counsel for the 5th and 6th respondents submitted that thereis no material at all to sustain an allegation of torture or cruel, inhumanand degrading treatment or punishment of the petitioner by the 5thand 6th respondents. He cited the case of Saman v. Lee!adasamwhere it has been held that, the mere fact that there was an assaultand some injury, may not be a violation of Article 11. He pointedout that what was contemplated by the prohibition was an aggravatedform of treatment or punishment, and in this case the petitioner hasfailed to establish the said ingredient as contemplated by the decision
SCSumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of Transport and Others (A. de Z. Gunawardana, J.) 19
in Saman v. Leeladasa. He also cited a page from the book titledOur Fundamental Rights of Personal Security and Physical Liberty byDr. A. R. B. Amerasinghe at page 29, which states as follows:
'Torture' implies that the suffering occasioned must be of aparticular intensity or cruelty. In order that ill treatment may beregarded as inhuman or degrading it must be 'severe'. There mustbe the attainment of a 'minimum level of severity'. There must bethe crossing of the 'threshold' set by the prohibition. There mustbe an attainment of 'the seriousness of treatment envisaged bythe prohibition in order to sustain a case based on torture orinhuman or degrading treatment or punishment.
The evidence in this case establishes that a crowd of peopleincluding the 2nd, 3rd and 5th respondents assaulted the petitioner.The petitioner has been put on the ground and assaulted and there-after put in the back of the jeep. The 5th respondent has put hisfoot on the petitioner when he was lying inside the jeep. The 5threspondent has ordered the petitioner to remove his shirt. The 6threspondent has abused the petitioner in foul language at the GampahaPolice Station, but has not participated in any assault. It is allegedthat the assault took place at the behest of the 1 st respondent, whichallegation has not been denied. Thus on an application of the verycriteria set down in the above quotation, to the available evidencein the case, I am of the view that quite clearly the 'threshold' setby the prohibition under Article 11 has been crossed.
Thus the petitioner has established that the 1st, 2nd, 3rd and 5threspondents have violated the fundamental right guaranteed underArticle 11 of the Constitution.
It is alleged that the petitioner's fundamental right guaranteed underArticle 13 (1) of the Constitution has been violated, by the illegal arrestof the petitioner by the Gampaha Police.
According to the affidavit of the 5th respondent he had observedthat,: "…the petitioner was involved in an argument with a group ofpersons and fearing that he would be assaulted I along with otherofficers put him into the jeep with great difficulty since he was tryingto resist". He says that he intervened on the orders of the Sub-Inspector of Police Munasinghe. He further states that : "I intervened
20
Sri Lanka Law Reports
[1999] 2 Sri LR.
and took him into custody solely because I feared that he may beassaulted and that there would be a breach of the peace". The notesof SI Munasinghe produced marked 5R3 states that the petitioner wasassaulted by people who had gathered there. He had brought thesituation under control and had taken the petitioner into custody inorder to establish peace. Thus it is seen from this evidence thatalthough it was the petitioner who was assaulted by the other personspresent there, ironically it is the victim of the assault who had beenarrested and not the assailants. Except the assertion by the respond-ents that the petitioner was intoxicated there is no allegation of anoffence committed by the petitioner. Up to date no charges have beenframed against him or any criminal action instituted. Thus it appearsthat there was no legal basis for the arrest of the petitioner. Althoughthe 4th respondent, the HQI of the Gampaha Police Station was notpresent at the scene at the time of arrest, he has in his affidavit justifiedthe arrest by stating that :"… the petitioner had been taken into
custody by R/SI Munasinghe to avoid a breach of the peace at 23.05hrs. on 1.1.97. He was released on bail at 4.20 am on my instructionson 2.1.97 …“. In paragraph 10 of his affidavit he takes up the erroneousposition that : "… the petitioners had been involved in the breach ofthe peace". Whereas it is the petitioner who was assaulted. It isaverred in the petition that when the petitioner was taken to the officeof the officer-in-charge of the Gampaha Police Station, the petitionerhad seen the 1st respondent seated in the chair of the officer-in-charge. Another uniformed Police-officer had stood by the side of the1st respondent. The 2nd respondent has threatened the Police officerand said that if they were unable to handle the petitioner, he will use,his boys. The 2nd, 3rd and 5th respondents along with others haslifted the petitioner and put him in the jeep. The above evidence clearlyestablishes that the petitioner was the victim of the assault.
However, the counsel for the 5th and 6th respondents argued thatthere was no illegal detention of the petitioner since the petitioner wasarrested to prevent a breach of the peace. As pointed out earlier,
I am of the view that there was no basis for the arrest of the petitionerand therefore the fundamental right of the petitioner guaranteed underArticle 13 (1) has been violated by the 5th respondent, upon theinstigation and/or with the participation of the 1st, 2nd and 3rdrespondents.
SCSumith Jayantha Dias v. Reggie Ranatunge,
Deputy Minister of Transport and Others (A. de Z. Gunawardana, J.) 21
The petition also prays for relief for the infringement of Article 14(1) (a). It is clear that there has been no direct violation of thepetitioner's freedom of speech and expression. Upon the petitionerrefusing to accede to the 1st respondent's demand for the surrenderof the tape of the petitioner’s camera, he attempted to seize the tapeand the camera by force, through the instrumentality of the 2nd, 3rdand 5th respondents; and when that failed, it was he who instigatedthe assault on the petitioner. That was an interference with thepetitioner's legitimate activity, of gathering information for the purposeof the "Vimasuma" programme; the telecast of that programme wouldhave been an exercise of the petitioner's freedom of speech andexpression; and therefore the 1st respondent's conduct indirectly, butnecessarily, impaired (although it did not totally deny) the petitioner'sfundamental right.
At the time of the incident, the 1st respondent appears to havebelieved that the petitioner had filmed his unregistered Pajero jeepand its number plate, and would make use of that film to smear hischaracter. The petitioner denied that allegation even then. In theabsence of an affidavit from the 1st respondent, the petitioner's version- which is neither unlikely nor improbable – that he did not film thejeep or its number plate, has to be accepted. But even if the petitionerhad in fact filmed the unregistered jeep and its number plate, whileit was in a public place, that was not unlawful. No reason whateverhas been suggested why the 1st respondent should have assumed. that the state-owned Independent Television Network would deliber-ately misuse that film in order to concoct a news item to the detrimentof a Deputy Minister. The fact that the 1 st respondent had mistakenlythought that the petitioner was from another privately owned, televisionnetwork makes no difference as far as the petitioner is concerned,he was filming an event which it was not unreasonable for him tohave considered newsworthy, and there was nothing unusual orobjectionable in his also filming the persons who were watching thatevent – whether they were private citizens or persons in public life.
It is unnecessary to consider whether the position might have beendifferent if in fact the 1st respondent had reasonable grounds to believethat the petitioner was intending to defame him, or if the incident hadnot occurred in a public place.
22
Sri Lanka Law Reports
[1999] 2 Sri LR.
Although the Constitution does not entrench a right to information,it has been held in Fernando v. Sri Lanka Broadcasting Corporatiorf0,that a right to information is implicit in some of the fundamental rights:“the right to information, simpliciter, is a corollary of the freedom ofthought guaranteed by Article 10“ (at page 179); and that the freedomof speech may include other rights, such as the right to obtain andrecord information, by means of interviews, photographs, and the like,needed to make the actual exercise of that freedom effective (at pages173, 179). I therefore hold that the petitioner’s fundamental right underArticle 14 (1) (a) has been infringed.
Although the 1st respondent was not acting in his official capacityas a Deputy Minister, and although the actions of the 2nd and 3rdrespondents did not per se amount to “executive action", the 5threspondent participated in the attempt to seize the petitioner's cameraand tape, in the assault on him, and in his arrest. Other Police officerswere present, and did nothing to check the assailants, to arrest them,or even to record their statements; instead they assisted in the arrest;and they even permitted the 1st respondent to question the petitionerwhile sitting in the chair of the officer-in-charge. What would otherwisehave been the purely private action of the 1st to 3rd respondentswas transformed into executive action by reason of the approval,connivance, acquiescence, participation and inaction of the 5threspondent and other Police officers (see Faiz v. Attorney-General(3)).
The petitioner has established three serious infringements of hisfundamental rights. Having regard to all the circumstances, I awardthe petitioner a sum of Rs. 150,000 as compensation and costs. Idirect the State to pay the petitioner a sum of Rs. 75,000, and the1st, 2nd and 3rd respondents personally to pay him Rs. 50,000,Rs. 12,500, and Rs. 12,500, respectively. These payments shall bemade, and proof of payment submitted to the Registrar, on or before1st February, 1999, in default of which the Registrar shall list thismatter for an order in regard to enforcement.
FERNANDO, J. – I agree.
DHEERARATNE, J. – I agree.
Relief granted.