THAVANEETHAN v. DAYANANDA DISSANAYAKE COMMISSIONER OF ELECTIONS AND OT

011-SLLR-SLLR-2003-1-THAVANEETHAN-v.-DAYANANDA-DISSANAYAKE-COMMISSIONER-OF-ELECTIONS-AND-OT.pdf


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THAVANEETHAN
v.DAYANANDA DISSANAYAKECOMMISSIONER OF ELECTIONS AND OTHERS
SUPREME COURTFERNANDO, J.
ISMAIL, J., ANDWIGNESWARAN, J.
S.C. No. 20/2002 (FR) WITH SC Nos. 25 AND 26/2002 (FR)7TH OCTOBER, 2002
Fundamental Rights-General Election- Parliamentary Elections Act-Suddenprevention of 55,000 voters including petitioners voting on alleged ground ofnational security-Mala fide exclusion of voters-Unlawful arrangements forVVIP voters to vote at their residence-Articles 12(1), 14(1) and 14(1)(h) of theConstitution.
Arrangements were made to hold a General Election on 5.12.2001 throughoutthe Island including in the Batticaloa District in which the petitioners were vot-ers, but living within the area under the control of the LTTE. Similar situationsprevailed in the Vanni and Trincomalee Districts. The Commissioner ofElections (the 1st respondent) made arrangements to establish “cluster”polling stations for voters resident in the uncleared areas to vote within clearedareas, under Government control.
On the morning of 5.12.2001 the petitioners including a total of 40,000 votersin the Batticaloa District and 15,000 voters in the Vanni District were prevent-ed from entering the cleared area by the army presumably on oral and secretinstructions given by the Army Commander (the 3rd respondent) purportedlyin the interest of national security and to ensure “free.and fair elections” by pre-venting alleged infiltration of LTTE from uncleared areas to cleared areas tolaunch an attack. These grounds were not-supported by evidence. On theother hand, the voters in the Batticaloa and Vanni Districts at the previousParliamentary General Election had been against the ruling party; and the vot-ers in the Trincomalee District had been pro-Government. In this context, thevoters in the Trincomalee District entering from the cleared areas from theuncleared areas were not stopped.
The 3rd respondent did not inform the 1st respondent about the stoppage of vot-ers. No steps were taken by the 1st respondent to annul the poll in the affectedDistricts or to postpone the same. At the same time,special arrangements were
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made by a directive purporting to be under section 129 of the ParliamentaryElections Act to enable the President, the Speaker, the Prime Minister and threeother Cabinet Ministers to cast their votes at their residences.
Held:
The order to bar the petitioners (or a total of about 55,000 voters) fromvoting was mala fide for extraneous reasons probably to prevent vot-ers from voting for the candidates of their choice. Thereby the peti-tioners’ right to freedom of movement guaranteed by Article 14(1 )(h)of the Constitution was infringed. That right and rights under Article12(1) and 14(1 )(a) could only have been restricted by law includingEmergency Regulations made under the Public Security Ordinance(Articles 15(6) and 15(7) of the Constitution). A Regulation made bythe President under the Prevention of Terrorism Act by the Presidentcalling upon the Army to assist the police did not permit the imposedrestriction.
The impugned restriction which precluded the petitioners from votingat the Election violated their freedom of expression under Article14(1)(a) of the Constitution which freedom is a collective right enjoyedby them with all other voters. The petitioners are entitled to a free andfair election. Hence their right is not a personal right limited to them asindividuals. Therefore, the petitioner’s application is not a “public inter-est litigation".
The 3rd respondent permitting the voters of the Trincomalee Districtto vote without any restriction and the 1st respondent permitting siximportant persons to vote at their residences infringed the petitioner’sright, to equality under Article 12(1) of the Constitution.
The purported direction under section 129 of the ParliamentaryElections Act authorizing special voting facilities was unlawful in thatthe said section had no application to the instant case. The favoursgranted to six VVIP and VIPP were also made mala fide and notbased on rational grounds. On that ground also the 1st respondentinfringed the petitioner’s rights under Article 12(1)
APPLICATION for relief for infringement of fundamental rights.
Cases referred to:
1 Mallows v Commissioner of Income Tax (1962) 66 NLR 32
Vadivelu v OIC Sithambarapura Refugee Camp Police Post SC 44/2002SCM 5.9.2002
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Dias v Secretary, Ministry of Defence SC 604/2001 SCM 5.9.2002
Karunathilaka v Dissanayake (1999) 1 SRI LR 157 173-174
' Egodawela v Dissanayake (Reported as Mediwake v Dissanayake (2001)
SRI LR 177)
J.C. Weliamuna with Lavangi Weerapana and Shantha Jayawardena for peti-tioner in SC 20/2002
K.Kanag-lswaran P.C. with M.A. Sumanthiran for petitioners in SC 25/2002
ft
Dr. Jayantha de Almeida Gunaratne with Kishali P. Jayawadena for petitionersin SC 26/2002
S. Marsoof, P.C. Additional Solicitor General with S. Barrie, State Counsel for1st to 5th and 28th respondents in SC 20/2002 and for the 1st to 6th respon-dents in SC 25/2002 and SC 26/2002
Cur.adv.vult
March 25, 2003FERNANDO, J.
These three applications involve virtually identical issuesconnected with the Parliamentary General Election held on
5.12.2001.
The five Petitioners in these three applications are citizens ofSri Lanka registered to vote in the Batticaloa electoral district. Theycomplain that on 5.12.2001, on their way to the polling stationsallotted to them, army personnel prevented them from entering theareas in which those polling stations were situated (thus infringingtheir freedom of movement guaranteed by Article 14(1)(h); that inconsequence they were prevented from voting (a denial of theirfreedom of expression, guaranteed by Article 14(1 )(a) read withArticle 4(e); that although large numbers of voters in the Batticaloaand Vanni electoral districts were similarly prevented from voting -resulting in the absence of a free and fair poll – a repoll was notordered in the affected areas (a further violation of their freedom of
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expression); and that they were not treated equally with other vot-ers and/or other sections of voters in Sri Lanka (in violation of theirright to equality and equal protection guaranteed by Article 12(1).The Petitioner in SC (FR) Application No. 20/2002 (“the firstApplication”) complains of a further infringement of Article 12(1) inthat the Commissioner of Elections, the 1 st Respondent, hastenedto make special arrangements, not sanctioned by law, to enable ahandful of voters to vote from the safety of their homes, althoughno action was taken to protect the exercise of his own right to vote.
When these applications were taken up for hearing on
all Counsel informed us that the facts were not serious-ly in dispute and requested that all three matter's be disposed of onwritten submissions, which were later filed.
THE FACTS
It is sufficient to refer briefly to the facts disclosed in the peti-tion in the first Application. The Batticaloa electoral district consistsof three polling divisions, namely Kalkudah, Batticaloa andPaddirippu. Each of those divisions is sub-divided into a number ofpolling districts, for each of which there were one or more pollingstations. In 2001 Kalkudah had 79 polling districts. For polling dis-tricts Nos. 70 to 79, there was only one polling station, namely, theMankerny Roman Catholic Tamil Mixed School (halls Nos. 1 to 10).Hall No. 5 was the polling station for polling district No. 74, theGramasevaka division of Vakarai central, where the Petitioner andhis wife resided. In normal circumstances, they should have beenallotted a polling station in or near Vakarai as they were residentsof Vakarai. However, Vakarai was an “uncleared” area (i.e. an areanot within the control of the Government and the armed forces ofSri Lanka), and in order to enable persons in “uncleared” areas tovote, polling stations were allotted to them in “cleared” areas. Suchpolling stations intended for voters in several different “uncleared”areas were, for convenience and security, situated in one location,in a “cluster”. In order to vote at the Mankerny school, hall No. 5,the Petitioner and his wife had to cross from the “uncleared” to the“cleared” area, and that they had to do at the check-point (or entrypoint) at the Kadjuwatte Army Camp. The Petitioner’s complaint is
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that on arrival at that check-point at 10.15 a.m. on 5.12.2001, he(and about another 500 voters) were informed by the army officerspresent that they had received orders from their superior officersnot to permit any one to enter the cleared areas that day.Nevertheless, hoping for a change of heart, they waited till 2.30pm., but that decision was not changed, and they returned homedisappointed.
The Petitioner stated that voters in the “uncleared” areas inthe Batticaloa and Vanni districts were similarly prevented from vot-ing, but not those in the Trincomalee district which the rulingPeople’s Alliance had won at the previous Parliamentary GeneralElection in 2000, securing 53,860 votes out of 133,130 valid votespolled. He further pleaded that:
”the following persons are reported to have been given the vot-
ing right at their respective residences though they live in areasunaffected by war:
President Chandrika Bandaranaike Kumaratunga
Speaker Anura Bandaranaike
Prime Minister Ratnasiri Wickremanayake
Anuruddha Ratwatte
….no legal provision is prescribed to facilitate such persons to voteat their residences in this manner.”
The Petitioners in the other two applications were similarlyprevented, at various check-points, from entering “cleared” areasand voting at the polling stations allotted to them. They alleged thatthe decision taken by the 3rd Respondent to close the check-pointswas not in consultation with the 1 st Respondent, and was motivat-ed by political factors and not by a genuine security need. Theypleaded that they were treated differently to registered voters in therest of the country.
It is not disputed that at least 40,000 voters (out of a total ofabout 280,000) in the Batticaloa electoral district, and 15,000 vot-ers (out of a total of about 210,000) in the Vanni electoral district,were similarly prevented from voting. The 1st Respondent never-theless decided not to order a repoll in the affected polling sta-tions.
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All the Petitioners prayed for declarations that their funda-mental rights under Articles 12(1), 14(1)(a) and 14(1 )(h) had beeninfringed, and for compensation and costs, while the Petitioner inthe first Application also sought a declaration that the voters in the“uncleared” areas of the Batticaloa and Vanni districts are entitledto vote without any hindrance from the Defence authorities as wellas a repoll in those areas. The prayer for a repoll was not pressedin the written submissions.
Documents called for by the Court
The first Application was filed on 4.1.2002, and leave to pro-ceed was granted on 24.1.2002. The Respondents were grantedtime till 11.3.2002 for objections. Since the matter was both impor-tant and urgent, as it concerned the franchise, an early date ofhearing was fixed, namely 2.4.2002, but it could not be taken up till
The 1st and 2nd Respondents (the Commissioner ofElections and the Returning Officer for the Batticaloa district) weredirected to forward copies of (a) all correspondence with theDefence authorities pertaining to the closure of entry pointsfronTuncleared” areas on 5.12.2002, (b) the material pertaining tothe decision of the 1st Respondent not to annul the results of thepoll for the Batticaloa district and not to hold a repoll, and (c) thematerial setting out the circumstances in which the aforesaid fourvoters were permitted to vote at their residences, and the relevantregulations or orders. The 3rd and 4th Respondents in the firstApplication (the Commander of the Army, and the Commander ofthe 23rd Division responsible for the Batticaloa district) were direct-ed to forward copies of (a) the orders, messages and directivespertaining to the decision to close the entry points, and (b) the cor-respondence and communications between the 3rd Respondentand the officers of the Defence Ministry on that decision.
There was no response from the 4th Respondent. By letterdated 20.2.2002 written on behalf of the 3rd Respondent, theRegistrar of this Court was informed that:
“all orders and instructions given to the subordinate officers bythe 3rd Respondent with regard to the decision to close the entrypoints…. and the communication between the 3rd Respondent
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and the officers of the Ministry of Defence were not written, butverbal/’ [emphasis added]
The Court order was to produce the orders, messages anddirectives pertaining to the decision to close the entry points. It wasnot confined to the orders, etc., given by the 3rd Respondent to hissubordinates, but included the orders,etc. given to the 3rdRespondent, as well as orders, etc. given, by the 4th Respondent(and others in the Army) in order to implement that decision.However, not a single document pertaining to the decision to closethe entry points, and the communication and implementation of thatdecision, was furnished. The Petitioners in the second and thirdApplications produced a copy of a facsimile message sent at 11.34a.m. on 5.12.2001 from the Headquarters of the 23 Division to theHeadquarters of the 233 Brigade:
“From GOC for Bde Comd. Convey the fol text to DistrictSecretary Bco from GOC for Government Agent, DistrictSecretary Bco and…. Returning Officer Bco.All entry points fromuncleared area to cleared area have been closed based on intel-ligence reports, to prevent LTTE plans to disrupt the conduct offree and fair election and also to prevent the LTTE from infiltrat-ing to the cleared area in the guise of voters.”
The 2nd Respondent by letter dated 13.2.2002 forwarded tothe Attorney-General copies of six documents, requesting thatthese be submitted to this Court. That was not done despitereminders from the Registrar. One of those documents wasdescribed as a “message received from Headquarters of 23Division, dated 5.12.2001, of the Army delivered to me by theCommanding Officer of 233 Brigade, Batticaloa.”
It is clear that there were “orders, messages and directives”pertaining to that decision and that they have been deliberatelywithheld from this Court.
The 1st Respondent failed to comply with the order made bythis Court to submit the material in regard to the aforesaid four vot-ers being permitted to vote at their residences. He filed an affidavitdated 8.3.2003 which in effect denied those allegations. It was onlyafter this Court repeated that direction on 2.4.2002 that the 1st
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Respondent submitted three documents. One was a GazetteExtraordinary No.1213/11 of 4.12.2001 containing an “Order undersection 129 of the Parliamentary Elections Act”:
“…. having regard to the threat to the lives of the personswhose names are specified in Column II of the schedule tothese regulations by the LTTE, [I] do hereby direct theReturning Officer of the Administrative Districts specified inColumn I… to be present at the respective premisesdescribed in the corresponding entry in Column III…. onDecember 05, 2001 during the hours of poll and permit theaforesaid persons to cast their votes in respect of theParliamentary General Election in his presence at the afore-said premises….
Column IColumn IIColumn III
Administrative Names of PersonsDescription of Premises
District
Gampaha1 .Chandrika Bandaranaike Kumaratunga President's House, Fort,
Colombo I
Kalutara2. Ratnasiri WickremanayakeTemple Trees,
Colombo 03
Colombo3. Lakshman KadirgamarWijerama Mawatha,
Colombo 07
Matara4.Mangala SamaraweeraFrancis Samaraweera
Mawatha,GabadaWeediya, Matara
Gampaha5.Anura BandaranaikeHoragolla Walauwa,
Nittambuwa
Kandy6. Anuruddha RatwatteMahaiyawa, Kandy.”
[emphasis added]
That Order did not purport to empower the Commissioner ofElections, or any one else, to issue further directions or instruc-tions.
He also forwarded a photocopy of a letter dated 3.12..2001written to him by the Secretary to the President (“the Secretary”,with a copy to the Attorney-General, with its annexure dated
from the Additional Director-General of the Directorate of
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Internal Intelligence (“ADG/DII”) to the 5th Respondent, theInspector-General of Police.
The Secretary’s letter stated:
“This has reference to my telephone conversation with youthis afternoon regarding the information received from veryreliable sources within Sri Lanka and abroad that [thePresident, Prime Minister, former Speaker AnuraBandaranaike, Minister Ratwatte, Minister Kadirgamar andMinister Samaraweera are being targeted by the LTTE to beassassinated on the day of the Poll… They have beenadvised by the security forces to avoid attending polling sta-tions to cast their vote as it would be impossible to ensuretheir safety… If they are to proceed to the polling stations tocast their vote, strict security arrangements would have to bemade which would include checking the polling station,checking all those coming for voting etc. This would causedisorganization of the election process, and I thereforerequest you to look into the possibility of making alternatearrangements for them to cast their votes with any otherauthority you consider suitable.
The Government Agent or the Asst Government Agent or anyother similar level officer may be arranged to facilitate theirvoting. These arrangements would be known only to you andthe officer who is responsible for this function for security rea-sons. I have annexed hereto a copy of a report received fromthe Directorate of Intelligence…which is self-explanatory.Please make the necessary arrangements and keep meinformed the names of those officers.”[emphasis added]
The ADG/DII's memorandum, titled “Threat to VVIP and VIPP”(copied to “DIG/PSD”), referred to information from “reliable andsensitive” sources –
“….about a LTTE plan to assassinate the under-mentionedVVIP and VIPP during the Polling Day…[the President, thePrime Minister, Minister Ratwatte, former Speaker AnuraBandaranaike, and Minister Samaraweera], Information of aspecific threat on H.E.. the President and General Ratwattewas received earlier, too, from another sensitive source from
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overseas last week…. Hence it is strongly suggested that allprecautionary methods be taken when the above-mentionedVVIP (and VIPP) have to visit a Polling Booth to cast theirvote, please.” [emphasis added]
Both these documents bear the 1st Respondent’s date stamp“04 DEC 2001” with “1,00 pm” written by hand. It is clear thereforethat the report referred to in the Secretary’s letter of 3rd Decemberis the ADG/DH’s memorandum of 4th December. That report couldnot have been available when the Secretary telephoned the 1stRespondent on the 3rd afternoon, and there has been no clarifica-tion as to the nature of the “information” which the Secretary con-veyed to the 1st Respondent on that occasion.
Documents produced by the Commissioner
It is necessary to refer to some of the other documents pro-duced by the 1st Respondent with his affidavit.
By letter dated 4.12..2001, the Deputy Leader of the TamilEelam Liberation Organization (“TELO”) complained to the 1stRespondent that the Army had ordered the closure of the Vannientry point, and asked him to request the 3rd Respondent to lift therestrictions, and, “if[that] is impossible, to send a ballot box with thegovernment officials to the uncleared area and help them to regis-ter their votes”.
In two letters dated 5.12 .2001, the Returning Officer, Vannidistrict, complained of the closure of the sole entry point which gaveaccess to voters from the “uncleared” areas of Vavuniya andMannar; he stated, without contradiction, that a decision had beentaken at the Security Co-ordinating conference held as early as
at the Security Forces Headquarters, Vanni, to keep thatentry point open to allow voters of the “uncleared” areas to vote;and he stressed that that arrangement had been communicated toall contestant political parties, independent groups and electionobservers, and that the failure to open the entry point could betreated as misleading those parties, groups, and observers, as wellas the voters.
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On 5.12 .2001 the Returning Officer, Batticaloa, complainedabout the closure of all the entry points in Batticaloa; he also stat-ed that he had received written complaints from party candidatesthat large-scale impersonation had taken place at the “cluster”polling stations. A Batticaloa Member of Parliament , JosephPararaiasingham, also complained, adding that he had spoken tothe 3rc* Respondent who had claimed that they had taken a deci-sion on the grounds of security and hence would not allow any per-son to come from the “uncleared” areas; he added:
“This I feel is a decision taken by the Government to preventthe voters from exercising their rights which is a blow todemocracy…. please use your powers and instruct the [3rdRespondent] to lift the blockade or declare the elections inthe Batticaloa district null and void”.
The 1st Respondent forwarded those complaints to theSecretary, Ministry of Defence, requesting him “to assess the situ-ation and regulate any voters coming from these areas to cast theirvotes where the polling stations are clustered”. The response, ifany, was not produced.
The Centre for Monitoring Election Violence also joined inthis chorus of protests, requesting that instructions be given toallow entry or that a repoll be ordered. It was emphasized that “thecontesting candidates had earlier been given permission to cam-paign in “uncleared” areas [and] it is ironic that the people who werecanvassed for their votes are now being denied their basic rights tocast their vote”.
The 1 st Respondent also produced the minutes of two meet-ings: one with the 3rd and 5th Respondents on 6.12 .2001, and theother with the representatives of political parties and independentgroups on 7.12.2001. These documents established that the secu-rity forces did not consult him prior to closing the entry points; thatthe 3rd and 5th Respondents explained that this was due to secu^rity reasons, as otherwise LTTE cadres would have mingled withthe voters and infiltrated into the “cleared” areas; that the 3rdRespondent maintained that there was only one entry point forVanni, at which only 300 persons could be checked per nine hourday, while Batticaloa had a few entry points at which 2,500 to 3,000
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could be checked; and that 15,000 voters in the Vanni district and
in Batticaloa were prevented from voting. As for a possiblerepoll, the 3rd Respondent stated that the situation would notchange in the near future, and suggested that the poll be staggeredover a three or four day period. The 1st Respondent did not con-sider that to be feasible, and decided not to order a repoll. He madeno reference to the complaints of large-scale impersonation men-tioned by the Returning Officer, Batticaloa.
Newspaper reports
In view of the uncertainty as to who was responsible for theimpugned decision, and why and when it was taken, it is necessaryto refer to certain newspaper reports and other documents pro-duced by some of the Petitioners – not as evidence of the truth oftheir contents, but to appreciate the 3rc* Respondent’s respones tothem, and to test the credibility of his affidavit.
The Island of Thursday 6.12 .2001 reported that:
“On a directive issued by the government on Tuesday, fivemilitary controlled civilian entry and exit points [in Vavuniyaand Batticaloa] were closed yesterday barring over 50,000registered voters…government officials said…” [emphasisadded]
The Sunday Times of 9.12. .2001 quoted MPPararajasingham:
“….thousands of voters in the uncleared areas…had beenprevented from voting by the security forces who closed theentry points into the cleared area reportedly on a specialdirective from President Chandrika Kumaratunga…” [empha-sis added]
The Daily News of 13.12 .2001 reported:
“The Army in a press release [issued on 5.12 .2001] justifiedthe action as a move to ensure free and fair elections. Toensure free and fair elections in the cleared area of Vanniand Batticaloa entry points were not opened today. Therewere credible intelligence reports that the LTTE were plan-
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ning to enter cleared areas in the guise of voters to createviolence in order to disrupt free and fair elections’. But Vannidistrict TULF MP…[states] The hidden objective of the clo-sure of entry points is to prevent the TULF supporters…fromvoting’…” [emphasis added]
In its preliminary report issued on 7.12 .2001, the EuropeanUnion Observation Mission commented:
“The decision of the army to close check points at Vavuniya andBatticaloa prevented many thousands of people from exercisingtheir right to vote. It would seem that there is no justification for thisaction and serious questions have to be raised about the politicalmotivation behind it.” [emphasis added]
Criticism and speculation about the decision and its motiva-tion led the 3rd Respondent to respond. The island of 4.1.2002reported thus:
“Balagalle replies to criticism of army’s conduct duringpolls
The Army Commander at a meeting with the election moni-toring group PAFFREL… sought to respond to severe criti-cism made against the army….7f is bad for the army’s moraleto feel that it is politicized the Army Commander told thegroup… the Army Commander himself had called the meet-ing…. to explain the events of Dec.5 According to PAF-
FREIGeneral Balagalle explaining the closure of the entry
points…. had said that it had not been done on the initiativeof the army…. at a meeting on December 3 of the top brassof security forces the Inspector-General of Police had filedtwo reports that the LTTE planned to infiltrate and destabilizethe East. This , he said, supplemented military intelligencereports over previous weeks…. He had explained that defer-ence had been given to the police reports as it was the Policeforce that was in charge of elections… The decision to shutdown according to him was one taken by the civilian author-ities. He had suggested alternatively that the elections beheld on a staggered basis, that is over two days, to make itpossible for the security forces to have enough numbers tokeep the check points open. He had added that when there
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was a call for a repoll in the East, he had informed theCommissioner of Elections that it would be possible for thesecurity forces to keep the check points open and provideadequate security….The Army Commander [also referred toan army] platoon….specifically told to provide just protectionto the Deputy Minister of Defence…” [emphasis added]
Respondents’ affidavits
The 3rd Respondent did not refer to that report in his affidavitdated 11.3.2002 filed in these proceedings, but stated that:
on 24.11.2001 the Inspector-General of Police (the 5thRespondent) requested that an additional 8,000 army per-sonnel be made available so that police officers could bereleased for election duty;
a conference was accordingly held at the Joint OperationalHeadquarters [it was not stated when] and it was pointedout that such a large number could not be provided as itwould affect security arrangements;
after further discussions [it was not stated when] betweenDirector Operations of the Army and the senior police officerin charge of election security 99 platoons (of 30 men) wereprovided from non-operational areas in order to releasepolice officers for election duty and another 72 platoonswere placed on reserve in different districts to assist thepolice;
in the context of inadequate reserve troops to handle thelarge number of persons who would be crossing over to thecleared areas in order to cast their vote in the Batticaloa andVanni districts, and the possibility that LTTE cadres may usethe opportunity to infiltrate into the cleared areas from theuncleared areas with the objective of disrupting the election,certain discussions were held [it was not stated when] byhim with Field Commanders;
“as the said discussions disclosed the dangers involved inpermitting such a large number of persons crossing over tothe cleared areas giving rise to security risks, whereby a
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large number of voters in the cleared areas may be pre-vented from voting, a recommendation was made to theChief of Defence Staff to close down all entry points fromthe uncleared areas to the cleared areas in Vanni andBatticaloa districts in order to prevent LTTE infiltration,which recommendation was approved by the Chief ofDefence Staff….”]
action to prevent persons crossing from the “uncleared”areas was taken bona fide in the interest of national securi-ty, for the preservation of public order, and enable a peace-ful election;
on 6.12 .2001 he had agreed to provide security at a repollprovided the poll was staggered over a period of three orfour day. [emphasis added throughout]
I find the 3rd Respondent’s affidavit not worthy of credit for sev-eral reasons. First, scrutiny of the affidavit reveals several unsatis-factory features. The rights of over 50,000 voters were involved ina very important, highly controversial, and extremely sensitive mat-ter, but the 3rd Respondent failed to give any explanation for notinforming the 1st Respondent, for treating Trincomalee differently,and for the absence of any written record of the impugned decisionand its communication. The affidavit did not even disclose whetherthat decision had been communicated to the President, asCommander-in-Chief and Minister of Defence, let alone other highofficials of that Ministry and the other branches of the securityforces. The necessary implication of his affidavit is that such animportant decision (both the recommendation and the approval)was based – not on factual reports – but on a “possibility”, and/or“dangers” disclosed at “discussions”. It made no mention of a sin-gle report from any source whatsoever. Second, the position thatthere was no written record is inconsistent with the facsimile mes-sage of 5.12. 2001. Finally, apart from a general denial, the 3rdRespondent did not refer to the claim that he had called the pressconference reported in the Island of 4.1.2002, or the accuracy ofthat report, which contains a wholly different account of the deci-sion-making process.
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Some of the glaring contradictions between the 3rd Respondent’sexplanation at the press conference and his affidavit are as follows.The former attributes the impugned decision to a meeting on3.12. 2001 of the “top brass of the security forces”, including the 5thRespondent, while the latter refers to a meeting on an unspecifieddate between the 3rd Respondent and the Field Commanders with-out the 5th Respondent; the former refers to police reports whichconfirmed previous military intelligence reports, while the latter refersonly to possibilities and dangers; the former alleges that theimpugned decision was noton the initiative of the army but was takenby the “civilian authorities”, while the latter unequivocally admits arecommendation by (or with the concurrence of) the 3rd Respondentto the Chief of Defence Staff to close the entry points; the formerimplies that the 3rd Respondent was against a closure, and had sug-gested that the poll be held, though staggered over two days, whilethe latter admits that he was in favour of the closure; and the formerclaims that the 3rd Respondent had informed the 1st Respondentthat if a repoll was held that the entry points could be kept open andsecurity provided, while the latter made this offer conditional upon thepoll being staggered over three to four days.
The affidavits of the 1st and 3rd Respondents were not at allhelpful. They denied all the averments in the Petitioners’ affidavits“except those hereinafter specifically admitted”., then admitted twoor three purely formal averments, and pleaded unawareness ofthree or four other averments; and finally answered the remainingtwenty-odd averments by denying them (i.e. for the second time) “inso far as they were inconsistent with” some facts which they specif-ically pleaded. The result was that they did not “specifically admit”the greater part of the Petitioners’ averments, which had thereforeto be taken as denied. The matters denied in this way included thefact that the 6th to 17th Respondents were the General Secretariesof the Political Parties which contested the Batticaloa district, theelectoral divisions of that district, the army checkpoints therein, theGazette notification of the dissolution of Parliament, and fact that1st Respondent had made arrangements for several persons tovote at their residences. Affidavits filed by State officials must facil-itate, rather than hinder, the ascertainment of the truth.
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The written submissions filed on behalf of the 1st to 5thRespondents on 20.11.2002 obscured the factual position even fur-ther:
“On the eve of the election, army intelligence sourcesunveiled a plan by the LTTE to infiltrate into cleared areasin the East on the 5th of December, and to lay under siegea large area and to attack several military bases on or about[election] day.
The seriousness of the security situation in the country wasfurther confirmed as the Inspector General of Police was inpossession of 2 intelligence reports clearly indicating thatthe LTTE was planning to enter in large number the clearedareas…These reports were produced at a conference heldat Joint Operational Headquarters on the 3rd of December2001 a mere 2 days prior to [election day].”
The Respondents’ affidavits did not refer to any “siege” orattacks on military bases, or to a conference on 3.12 .2001 at whichthe 5th Respondent was present and produced intelligence reportsin his possession. The conference of 3.12 .2001 was referred toonly in the Island report of 4.1.2002, and the above submissionsseem to accept the accuracy of that report, and give rise to furtherquestions as to the “civilian authorities” to whom the 3rdRespondent attributed responsibility for the impugned decision.
The 2nd,4th and 5th Respondents did not file affidavits. The5th Respondent passed away while these Applications were pend-ing.
THE ISSUES
Several questions arise for decision:
Who took the decision to close the entry points, when, andfor what reason?
Was the closure of the entry points an infringement of thePetitioners’ freedom of movement?
(a) Was that closure an infringement of the Petitioners’ free-dom of expression?
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Was the failure to order and hold a repoll an infringe-ment of the Petitioners’ freedom of expression?
Was that closure an infringement of the Petitioners’ right toequality and the equal protection of the law?
Was the 1st Respondent’s “Order under section 129” aninfringement of the Petitioners’ right to equality and theequal protection of the law?
(6 If so, how grave were those infringements?
DECISION TO CLOSE ENTRY POINTS
There is no doubt whatsoever that on orders given by the 3rdRespondent, or with his concurrence or approval, army personneldid suddenly close the entry points in the Batticaloa and Vanni dis-tricts, and that neither the 3rd Respondent nor other high officers ofthe army informed the 1st Respondent,, leaving him to learn of theclosure only at the eleventh hour through others. The fact that acomplaint was made by TELO on 4.12.2001 shows that the deci-sion had become known that day, and hence must have been madeon 4.12.2001 or earlier.
The failure to record, and to communicate, that decision inwriting gives rise to grave suspicions as to its bona tides. That deci-sion directly affected a significant number of citizens, and not just ahandful; it related to the conduct of a general election of seriousconcern to all citizens (let alone election observers, local and for-eign), particularly at a time when public confidence in the integrityof the electoral process was sinking fast. Furthermore, the decisionwas one that could only have been taken in the, due exercise anddischarge of public powers and functions, and must have beencommunicated to the civilian authorities. There was no need forsecrecy..Indeed, the need was for publicity. It was therefore impor-tant that the decision should have been, and should also have beenperceived as being, both lawful and fair. It should, unquestionably,have been promptly reduced.to writing (so as to serve as evidenceto guide those functionaries who had to act on that decision, cfMallows v Commissioner of Income Tax and communicated inwriting. Respect for the Rule of Law required that the decision-mak-ing process, particularly in a matter relating to the franchise, should
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not have been shrouded in secrecy, and that there should havebeen no obscurity as to what the decision was and who wasresponsible for making it (cf Jayawardena v Wijayatilake, [2001]1 Sri LR 132,143). If the 3rd Respondent was truthful when he stat-ed that the decision was not recorded or communicated in writing,such secrecy – in the absence of some good reason for secrecy -points to a desire to conceal some illegality and/or impropriety. If,contrary to what the 3rd Respondent stated, the decision (and itscommunication) was in fact duly documented, the failure to pro-duce the relevant documents establishes that they were withheldbecause their production would have disclosed some illegalityand/or impropriety.
The real reason for the closure of the entry points remainsshrouded in mystery. According to the 3rd Respondent, what wasfeared were LTTE infiltration, disruption and destabilization. Amerely subjective or speculative fear was not enough to justify clo-sure: there had to be an objective and reasonable basis for suchfear. However, his affidavit discloses that his own recommendationas well as the approval of the Chief of Defence Staff was not basedon any factual reports, but only on a “possibility”, and on “dangers”disclosed in the course of discussions, of LTTE infiltration, disrup-tion and destabilization – without any elaboration or supportingmaterial. Had any one of ordinary intelligence been told during theelection period that it was proposed to allow voters from“uncleared” areas to enter “cleared” areas in order to vote, hisimmediate response – without the benefit of any intelligence reports- would have been that there was indeed a danger of such infiltra-tion, etc.
That LTTE cadres, some having voting rights, might minglewith voters and infiltrate into the “cleared” areas was by no meansan unforeseen possibility that arose unexpectedly. For the reasonsstated in the next paragraph, it is impossible to believe that thispossibility occurred to responsible officials in high places only a dayor two before polling day.
It was a known and obvious danger from the outset – just asthere were other dangers in other districts and provinces. Thosecharged with assisting in the conduct of a democratic election donot cave in to such dangers, but prepare to meet them. That is why
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the 1st Respondent and the security forces had been going aheadwith arrangements to allow voters to enter the “cleared” areas (asthe Returning Officer, Vanni, pointed out, four weeks previously theSecurity Co-ordinating conference at Vanni had decided to keepthe Vanni entry point open);“cluster” polling stations were estab-lished for voters coming from “uncleared” areas; and candidateswere allowed to campaign in the “uncleared” areas. Obviously allconcerned were of the view that adequate safeguards could betaken in respect of the risks involved. The 3rd Respondent’s affi-davit did not disclose whether, and how, that situation had changed.Besides, if the 3rd Respondent truly believed that there had beena significant change in the situation, he was under an obligationimmediately to inform the 1st Respondent who was responsible forthe overall conduct of the election. The newspaper' report of hispress interview claimed that the 5th Respondent had filed tworeports on 3.12. .2001, and the Respondents’ written submissionsmake the same claim. Even if I were to treat the newspaper reportas evidence, there are good reasons why the reports said to havebeen filed by the 5th Respondent cannot be accepted as being thereal reason for the impugned decision: the 3rd Respondent claimedat that interview that there had been military intelligence reportsreceived “over previous weeks”. If that was true, it meant that wellbefore 3.12 .2001 (and probably even before the meeting of24,11.2001) military intelligence reports had confirmed to him whatcommonsense had already indicated – but the 3rd Respondentchose not to act on those reports, and did not even consider itworthwhile to inform the 1st Respondent. Further, none of thosereports have been produced, no excuse has been offered for thatfailure, the 5th Respondent has not filed an affidavit, and the Courthas not been told of their contents even in a general way. Eitherway, therefore, the 3rd Respondent has failed to establish thatthere were reasonable grounds, based on national security, for theclosure of the entry points.
Of course, the security forces were entitled – and indeedobliged – to take those risks seriously. Careful search of personscrossing from the "uncleared” areas was essential. The real prob-lem was the difficulty of searching large numbers of such voterswithin a short space of time. But that was not a difficulty which sud-
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denly arose on 4.12.2001. It existed from the beginning, and wasaggravated by the 5th Respondent’s request on 24.11.2001 for
army personnel. If the real reason was that the army wasunable to assign enough personnel to search voters, that shouldhave been communicated to the 1st Respondent at once. Besides,if that was the reason, the army should not have closed the entrypoints completely, but should at least have searched the few whocould be searched and allowed them to cross over. I must note alsothat there would have been no lack of personnel if the poll in theaffected areas was taken on a later day, because then personnelfrom elsewhere could have been brought in.
That makes it necessary to consider why the 3rd Respondentkept the 1st Respondent in the dark. Had the 1st Respondent beeninformed promptly, there were other options which he could haveconsidered. Section 24 of the Parliamentary Elections Act, No. 1 of1981 (“the Act”), empowers the Commissioner of Elections – whereit is necessary due to an emergency – to alter the location of apolling station and/or to postpone the poll in any electoral district.Section 33 empowers him to stipulate different hours of polling. If thereal difficulty which the forces faced was the lack of personnel on
the 1st Respondent may well have considered postpon-ing the poll in Batticaloa to, say, the 10th and the poll in Vanni to the15th; and he may have considered suitably relocating the “cluster"polling stations, perhaps to the entry points themselves. The ques-tion also arise whether section 24(3) – on the principle that thegreater includes the lesser, or read with section 129 of the Act, towhich reference is made later in this judgement – permitted the post-ponement of the poll in respect of apart of the electoral division; andalso whether, on a similar basis, he could extend the hours of poll inrespect of the “cluster” polling stations only. It is necessary to spec-ulate as to what he might have done: the fact is that the failure toinform him prevented him from exploring the feasibility of alternativearrangements, consistent with national security, to enable a signifi-cant section of the voters to cast their votes. Having regard to theprompt and decisive action which he took within hours to ensure thata handful of “VVIP and VIPP” were able to vote in safety, one can-not exclude the likelihood of the 1st Respondent devising with equalurgency and ingenuity a course of action to protect the exercise ofthe franchise by 55,000 voters, albeit ordinary voters.
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In the circumstances, the 3rd Respondent’s unexplained fail-ure to inform the 1st Respondent makes it likely that his real inten-tion was to prevent them voting either then or later, knowing that,that would further the interests of parties or groups not hopeful oftheir support.
To sum up, the 3rd Respondent was wholly or mainly respon-sible for the decision to close the entry points; the danger of LTTEinfiltration was a known danger, which could and should have beenfaced; there is no evidence that on the 3rd or the 4th of Decemberthat danger suddenly became so grave as to warrant the closure ofthe entry points; even assuming that it did, at least the few voterswho could have been checked should have been allowed to enterthe “cleared” area, and what is more the decision to close shouldnot have been concealed from the 1 st Respondent; and the secre-cy, haste and other circumstances show that the decision was notbona fide, but motivated by extraneous considerations.
Freedom of Movement
Article 15(6) permits the freedom of movement guaranteedby Article 14(1 )(h) to be subjected to restrictions imposed by “law”in the interests of national economy. Article 15(7) permits furtherrestrictions in the interests of national security, public order, the pro-tection of public health or morality, and for the purpose of securingdue recognition and respect for the rights and freedoms of othersor of meeting the just requirements of the general welfare of ademocratic society; and “law” includes regulations made under thelaw relating to public security.
In the written submissions tendered on behalf of the 1st to5th Respondents, they “emphatically state” that measures to closethe entry points were taken “under the specific powers vested uponthem both by the Prevention of Terrorism (Armed Forces)Regulations No. 10 of 2001 and the Prevention of Terrorism(Temporary Provisions) Act No. 48 of 1979, made operative bygazette notification No. 1212/15 of 28th November 2001”; that “theRespondents were left with no choice but to ensure security to thepublic at large even if it involved the restriction of movement of acategory of persons seeking clearance to the cleared areas”; and
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that “the said restriction of movement was imposed purely on thebasis that any or all of such persons who were thus restricted were
‘suspected terrorists’ in the interest of preserving not only the
fundamental rights but also the lives of thousands of other citizenswho would otherwise have been affected.”
I must note that the above submissions were made on behalfof the 1st and 2nd Respondents as well, and thus imply that they,too, now seek to justify the closure.
It was further submitted that Article 15(7) makes the funda-mental rights recognised by Articles 12 and 14 subject to “suchrestrictions as may be prescribed by law in the interests of nation-al security, public order…”; that ‘law’ includes regulations madeunder the law for the time being relating to public security”; that“the term “law” in the given context should essentially constitute anAct of Parliament or its recognized equivalent promulgated in theinterest of national security and public order, but is not restricted toregulations made under the Public Security Ordinance”; and thatalthough specific reference has been made to that Ordinance,Article 15(7) “extends to all Acts enacted for the maintenance ofnational security, public order, etc.” The PTA, as its preambleshows, was enacted for the purpose, inter alia, of maintainingnational security and public order; the regulations and Order madeunder the PTA constitute “law”; and the restrictions contained there-in constitute “restrictions prescribed by law” for the purpose ofArticle 15(7).
The Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979 (“the PTA”) empowers the Minister (in Part III) to makedetention orders and restriction orders in respect of particular per-sons suspected of unlawful activity. Our attention was not drawn toany provision authorizing restriction of movement in general, or inrespect of unspecified persons.
Section 27 of the PTA empowers the Minister to make regu-lations for the purpose of carrying out or giving effect to the princi-ples and provisions of that Act. The President, as the Minister,made and gazetted on 3.8.2001 the PTA (Armed Forces)Regulations No.10 of 2001, Regulation 2 of which provided:
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“The President may, where she is of the opinion that, for thepurpose of giving effect to the principles and provisions of[the PTA] and for combating terrorism or other civil distur-bances and for the purpose of maintenance of supplies andservices essential to the life of the community, it is neces-sary to do so, by Order, call out the armed forces on activeservice for the aforesaid purposes in such areas as may bespecified in such Oder, for assisting the Police Force in car-rying out their duties in terms of the aforesaid Act. ” [empha-sis added]
The President thereafter made an Order under Regulation 2,gazetted on 28.11.2001, calling out the “armed forces on active ser-vice [in specified areas including Batticaloa and Vanni] for the pur-pose of giving effect to the principles and provisions of the PTA andfor combating terrorism or other civil disturbances, [etc].”
The essence of the Respondents’ contention is that the PTAis a law relating to national security and/or public order; that “law”includes regulations under the law relating to public security, andthat (1) the word “includes” indicates that other regulations (besidesthose under the Public Security Ordinance) are within that definitionof “law”, and (2) the PTA is in any event part of “the law relating topublic security; and therefore that the PTA Regulations No. 10 of2001 and the Order of 28.11.2001 are regulations that validlyimpose restrictions on Article 14(1 )(h).
I agree that the PTA is a law relating to national securityand/or public order, however the PTA itself does not impose anyrestrictions on freedom of movement, except in respect of specifiedpersons, suspected of unlawful activity, in terms of orders made bythe Minister. The PTA did not authorize any of the Respondents toimpose any restrictions on the Petitioners’ rights under Article14(1 )(h).
The word “includes” in Article 15(7) does not bring in regula-tions under other laws. “Law” is restrictively defined in Article 170 tomean Acts of Parliament and laws enacted by any previous legis-lature, and to include Orders-in-Council. That definition would haveexcluded all regulations and subordinate legislation. The effect of
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the word “includes” was therefore only to expand the definition inArticle 170 by bringing in regulations under the law relating to pub-lic security.
While at first sight “public security” may seem to cover muchthe same ground as “national security and public order”, it is clearthat “the law relating to public security” has been used in a narrowsense, as meaning the Public Security Ordinance and any enact-ment which takes its place, which contain the safeguards ofParliamentary control set out in Chapter XVIII of the Constitution.Article 15 does not permit restrictions on fundamental rights otherthan by plenary legislation – which is subject to pre-enactmentreview for constitutionality. It does not permit restrictions by execu-tive action (i.e. by regulations), the sole exception permitted byArticle 15(1) and 15(7) being emergency regulations under thePublic Security Ordinance because those are subject to constitu-tional controls and limitations, in particular because T^e power tomake such regulations arise only upon a Proclamation of emer-gency, because such Proclamations are subject to almos^immedi-ate Parliamentary review, and because Article 42 provides that thePresident shall be responsible to Parliament for the due exfer^ise ofpowers under the law relating to public security. It is noteworthy thatArticle 76(2) expressly recognizes that Parliament may delegate tothe President the power to make emergency regulations under thelaw relating to public security. Other regulations and orders whichare not subject to those control made under the PTA and otherstatutes, are therefore not within the extended definition of “law”.
In any event, neither the PTA Regulations nor the Orderthereunder purport to impose restrictions on the freedom of move-ment. The PTA Regulations only authorize the making of an Orderto call out the armed forces, for the limited purpose of assisting thePolice Force, in carrying out their duties under the PTA.
I hold that there was thus no “law” validly imposing restric-tions on the Petitioners’ freedom of movement.
However, the freedom of movement is subject, independent-ly of Article 15, to certain inherent limitations, just as the freedom ofspeech does not entitle a person to falsely cry, “Fire!” in a crowdedtheatre (cf Vadivelu v O.l.C. Sithambarapuram Refugee Camp
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Police Postal. Thus during a riot or a fire the police may justifiablyrestrict entry to an area to which the public would otherwise have aright of access if that was necessary in order to quell the riot or tofight the fire. If the army personnel at the various check-points hadprevented the Petitioners from entering the “cleared” areas, bonafide, in order to protect national security or to prevent the disruptionof the election, I doubt whether the Petitioners could have com-plained that their freedom of movement had been infringed. In thisinstance, however, the army personnel were carrying out ordersgiven malafide, for extraneous purposes. As I have alreadyobserved, the failure to inform the 1st Respondent of the closure,and the fact that even the 300 voters who could have beensearched at each entry point were denied entry, confirm that thedenial of access was anything but bona fide.
Furthermore, it is clear that the restrictions thus placed on thefreedom of movement of the Petitioners cannot be regarded asminor irritants (cf Dias v Secretary, Ministry of Defence (3) inciden-tal to verifying identity and checking baggage reasonably neces-sary for regulating entry into “cleared” areas. It was well known thatthe Petitioners (and many others) wished to travel on 5.12.2001 inorder to vote, and that even a few hours’ delay would make suchtravel futile.
I therefore hold that the Petitioners’ fundamental rights underArticle 14(1 )(h) have been infringed by the 3rd Respondent.
Freedom of Expression
It is not disputed that the closure of the entry points had theforeseen result of denying the Petitioners and numerous other vot-ers the opportunity to exercise their right to vote. As I held inKarunathiiaka v Dissanayake (4), the silent and secret expressionof a citizen’s preference, as between one candidate and another,by the exercise of his right to vote is an exercise of the freedom ofspeech and expression. That freedom was totally denied, and notmerely delayed.
The Petitioners have also complained that other voters – thewife of the Petitioner in the first Application, other voters in the
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same electoral district, and even voters in another district – havebeen prevented from exercising their right to vote. In Egodawela vDissanayakd$) (reported as Mediwake v Dissanayake), it washeld, for the reasons stated at pages 210-213, that the right to votehad both an individual and a collective aspect. Being aParliamentary General Election the result at the Petitioners’ pollingstation affected the result in the Batticaloa electoral division, andthat in turn affected the result nationally. The Petitioners thus had'an interest in the results of all electoral divisions. Impairment of therights of voters elsewhere diluted the value of their own votes. I donot regard the Petitioners’ applications as being “public interest liti-gation” to enforce the rights of others, because it is not the right ofothers, or of the public, which they seek to vindicate, but an integralaspect of their own fundamental rights.
I therefore hold that the Petitioners’ freedom of speech andexpression under Article 14(1)(a) read with Article 4(e) has beeninfringed by the 3rd Respondent.
However, that infringement was not final. The law provided aremedy. The minutes of the meeting of 7.12.2001 show that the 1stRespondent himself recognized that the circumstances in which
voters were suddenly prevented from voting cried out for arepoll – it was quite plain that there had been no genuine poll in theaffected “cluster” polling stations, and the decision in Egodawela (cfpages 201-202) was applicable. The 1st Respondent did not ordera repoll only because the 3rd Respondent stated that security couldnot be provided unless the poll was staggered for three or fourdays. It is not easy to apportion blame, and I would only reiteratewhat I observed in Egodawela: the 1 st Respondent made an hon-est effort – although inadequate – to ensure a genuine election, buthis authority was insidiously undermined by withholding the neces-sary support and resources. It is the obligation of the State toensure “the full realization of the fundamental rights and freedomsof all persons” and to “strengthen and broaden the democraticstructure of government and the democratic rights of the People….by affording all possible opportunities to the People to participate atevery level in national life and in government” (cf Articles 27(2)(a)and 27(4)). Here, in one way or another, the State machinery hasbeen manipulated to ensure the converse – a flagrant denial of the
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fundamental rights of 55,000 voters, which made the election forthe Batticaloa and Vanni districts neither free nor fair. The failure toorder a repoll would only encourage future infringements.
I hold that the Petitioners’ freedom of speech and expressionwas infringed by the 1st Respondent.
Right to Equality
The decision to close the entry points was neither bona fidenor merely mistaken; it was arbitrary, and intended to prevent thePetitioners exercising their franchise probably for political reasons.
There were aggravating factors. Other voters, similarly cir-cumstanced, living in “uncleared” areas in the Trincomalee districtwere not subjected to similar restrictions, and there was not a wordof explanation as to how the dangers of LTTE infiltration, disruptionand destabilization were averted in Trincomalee. Remedial actionin the form of a repoll was denied.
I therefore hold that the Petitioners’ right to equality and theequal protection of the law under Article 12(1) was infringed by the3rd Respondent.
Order under Section 129
Section 129 of the Parliamentary Elections Act provides thus for the“removal of difficulties”
“If any difficulty arises in first giving effect to any of the pro-visions of this Act, the Commissioner may, by Order pub-lished in the Gazette, issue all such directions as he maydeem necessary with a view to providing for any special orunforeseen circumstances; or
to determining or adjusting any question or matter for thedetermination or adjustment of which no provision or effec-tive provision is made by this Act." [emphasis added]
I have already referred to the letter dated 3rd December sentby the Secretary to the President to the 1st Respondent, to whichwas annexed a copy of the memorandum dated 4th Decemberaddressed by the ADG/DII to the 5th Respondent.
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These documents gave rise to severs) queries. How did theSecretary’s letter of the 3rd refer to and annex a copy of a memo-randum which was written only the next day? How did theSecretary conclude, and the 1st Respondent decide, first, thatMinister Kadirgamar was under LTTE threat when the memoran-dum did not mention him? And second, that the security forces hadadvised the six specified VVIP and VIPP to avoid attending pollingbooths, when the memorandum only advised that precautions betaken when they visited polling booths? Had the six VVIP and VIPPrequested special voting arrangements? If, as claimed in the mem-orandum, information had previously been received of a specificthreat to the President and General Ratwatte, why did the ADG/DIIdelay until 4th December to inform the 5th Respondent?
The 1st Respondent’s affidavit did not contain a word aboutthe circumstances in which he came to make his “Order under sec-tion 129”. To clarify matters the Registrar was directed to requestthe Attorney-General to obtain from the 1st Respondent and sub-mit:
“1. the material on the basis of which the 1st Respondentformed the opinion that there was a threat to the lives of thesix persons specified in the Order dated 4.12.2001, includ-ing any police reports received by him;
the material containing any advice by the security forces tothose six persons to avoid attending polling stations on5.12.2001;
the material containing any request by or on behalf of thesaid six persons to vote elsewhere than at their allottedpolling stations;
the directions or instructions given to the Returning Officersof each of the Districts mentioned in the Order dated
pursuant to that Order.”
The same three documents were sent again, without anyother material relevant to items (1) to (3). In regard to item (4),copies were furnished of the instructions issued to the ReturningOfficers in regard to the voting procedure for five of the named per-sons – but not of the instructions relating to Minister Kadirgamar.Those instructions disclosed that special arrangements had been
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made, quite contrary to the principles and procedures laid down inthe Act. Each Returning Officer was directed to order an AssistantReturning Officer to collect the ballot paper of the named individualfrom the Senior Presiding Officer of the polling station, havingplaced the official mark thereon and enclosed it in a sealed enve-lope, to take it in a vehicle with a police escort to that individual’sresidence, to allow him to vote secretly in a closed room, to takethat ballot paper in a sealed envelope to the polling station by vehi-cle with a police escort, and then to put the envelope into the bal-lot box. Safeguards – such as the application of indelible ink – con-sidered essential in the case of ordinary voters were ignored.
The material available to the 1 st Respondent did not discloseany threat whatsoever to Minister Kadirgamar, nor did it disclosethat the security forces had advised the six VVIP and VIPP to avoidvisiting polling booths. In the written submissions filed on behalf ofthe Respondents it was alleged that two intelligence reports, frominternal intelligence sources, produced by the 5th Respondent on
contained information about this possible assassinatjonattempt, and that the 1st Respondent was apprised of the serious-ness of that threat. Those reports were not produced, and the 5thRespondent did not disclose their contents in an affidavit, norexplain how the 1st Respondent had been informed. But that apart,if two such reports, from internal intelligence sources, were alreadyin the 5th Respondent’s possession on 3.12.2001, why was it nec-essary for the ADG/DII in charge of internal intelligence, to informthe 5th Respondent of that threat on the 4th of December? Therewas also no evidence that any of the six VVIP and VIPP hadrequested any special voting arrangements, and the 1stRespondent should have realized that any one with basic democ-ratic instincts would have squirmed in embarrassment at the verythought of even asking for such preferential treatment at an elec-tion. The privileges which the holders of high office enjoy on otheroccasions or at other times come to an end when it comes to theexercise of the right to vote on election day, for elections must befree, equal and secret – so that voters are equal, and must betreated equally.
It is clear beyond reasonable doubt that – whatever materialthe security forces may have had – the 1st Respondent himself did
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not have any material on which he could reasonably have conclud-ed that there was a serious threat to the lives of the six VVIP andVIPP and that the security forces had advised them to avoid attend-ing polling stations. He acted blindly upon the unsubstantiated rep-resentations of the Secretary and extended quite extraordinaryprivileges to six persons without even receiving a request fromthem. I must also note the otherwise commendable promptitudewhich the 1st Respondent displayed on that occasion. Havingreceived the Secretary’s letter at 1.00 p.m. on 4.12.2001, his Orderwas made and gazetted the very same day, after having ascer-tained on his own the electoral districts and residences of the sixVVIP and VIPP, but without the precaution of seeking the views ofthe Attorney-General (to whom that letter had been copied). ThePetitioner in the first Application was therefore justified in com-plaining that 55,000 voters (including himself) from Batticaloa andVanni were treated very differently: that a few who had the privilegeof extensive security provided by the State were given the addi-tional facility of voting at home, while from those who had no secu-rity at all even the right to vote had been stealthily taken away.
The 1st Respondent’s Order was therefore arbitrary, unrea-sonable and discriminatory, and in violation of Article 12(1).
That Order was unlawful for several other reasons as well.Section 129 does not give the Commissioner of Elections anypower to issue directions which are contrary to the fundamentalprinciples of the Act. The Act requires, as a general rule, that vot-ers must vote in person, and not by proxy; it is exceptionally, only,that voting by post is permitted for specified categories of persons- basically, because they may have official duties connected withthe election itself. Further, voters are required to travel by publictransport or on foot – unless with the prior written authority of theReturning Officer given on account of physical disability. “Voting athome” is alien to the fundamental principles of the Act. If theCommissioner had power under section 129 to introduce such pro-cedures unasked, there is no reason why he did not establish pro-cedures to enable, for instance, voting at embassies abroad by themany migrant workers who contributed so substantially to ournational economy. Besides, the “difficulty ” which section 129 con-temDlates aDDears to be a difficulty which the Commissioner (or his
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staff) encounters in giving effect to the provisions of the Act – notany of the difficulties which individual voters may face in exercisingtheir rights under the Act, for instance, because of death threats.
I hold that section 129 empowers the Commissioner ofElections to give directions only when there is a difficulty in givingeffect to a provision of the Act: i.e. a difficulty experienced in imple-menting any provision of the Act, and not in dealing with a casusomissus. Although section 129 refers to “determining …. any ques-tion :… for the determination …. of which no provision …. is made”,that power to determine a question not covered by the Act can onlybe exercised if initially the Commissioner had been faced with a dif-ficulty in implementing some provision of the Act. Thus if theCommissioner took steps, for instance, to implement the provisionsof the Act in regard to the postponement of the poll, or the orderingof a repoll, and if in so doing a question arose for which the Act hadmade no provision, then he could issue directions with a view todetermining such question. A condition precedent to the exercise ofthe power conferred by section 129 is the existence of a difficulty inimplementing any provision of the Act. In this case, the 1stRespondent was not faced with any such difficulty, but only with thealleged personal problems of six voters who apprehended seriousdifficulty in attending their allotted polling booths.
Further, the power under section 129 can only be exercisedon the first occasion on which a particular difficulty arises. Thealleged “difficulty” in this case was the inability to attend the allottedpolling booth. Whether that difficulty arose because of death threatsor other threats – from the LTTE, or a political party or an individ-ual – or because threats of injury had been carried out and the vic-tims were immobilized in hospital, made no difference. TheCommissioner of Elections, in particular, would have been wellaware that, that was by no means the first occasion on which thatparticular difficulty had arisen after section 129 was enacted.
Finally, the power to issue directions conferred by section129 was a power to issue published general directions applicableto all similar situations, and not a power to make ad hoc decisionsin respect of particular voters, on request or otherwise. To interpret“directions” otherwise would mean that if there were several similarcomplaints the Commissioner could issue directions only in respect
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of the first, with the result that the other complaints would remainunremedied: resulting in unequal treatment. Faced with two possi-ble interpretations of section 129, that which is consistent withequal treatment should be preferred to that which results in unequaltreatment. If section 129 did empower the Commissioner to issuedirections when there were threats deterring voters from attendingtheir allotted polling booths, those directions should have coveredall such instances, and should have applied to future elections aswell – thereby effectively “removing” the difficulty. The failure to doso amounted to an infringement of Article 12(1). Besides, neithersection 129 nor the impugned Order authorized the 1stRespondent to issue “instructions”, especially unpublished secretinstructions, governing the procedure for voting at home. Thoseinstructions were also inconsistent with the gazetted Order: whilethe latter directed Returning Officers to be present at the residenceof the VVIP and VIPP concerned, by the unpublished instructionsthe 1st Respondent directed the Returning Officers to delegatetheir functions to Assistant Returning Officers.
Gravity of the Infringements
The proved infringements were in themselves serious. The .number of voters affected was so large that the elections in theBatticaloa and Vanni districts were neither free nor fair. The deci-sion-making processes which resulted in those infringements wereshrouded in secrecy, haste and bad faith. The infringements tookplace at a time when there was a serious erosion of public confi-dence in the integrity of the electoral process, and when it wasextremely important to ensure that elections were free and fair, par-ticularly in the “uncleared” areas – because citizens living in thoseareas needed reassurance, if peace and national reconciliationwere to become realities, that elections would be truly democratic,that fundamental rights would be respected and protected, and thatjudicial remedies would be available for wrongdoing. In that con-text, the infringements were a national disaster.
Order
I grant the Petitioners in all three Applications declarationsthat their fundamental rights under Articles 12(1) and 14(1)(a) havebeen infringed by the 1st and 3rd Respondents, and that their fun-
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damental rights under Article 14 (1 )(h) have been infringed by the3rd Respondent. I award the Petitioner(s) in each Application (a) asum of Rs. 100,000 as compensation payable by the State(totalling Rs. 300,000), and (b) a sum of Rs, 30,000 as costspayable personally by the 3rd Respondent (totalling Rs. 90,000). Ifurther award the Petitioner in the first Application a sum of Rs.
as nominal compensation in respect of the 1st Respondent’sOrder under section 129, payable personally by the 1stRespondent. All these payments shall be made on or before
31.5.2003.
ISMAIL, J:- I agree
WIGNESWARAN, J:- I agree
Relief granted