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Learned Counsel for the Petitioners maintained that the ousting ofthe old Time-Keepers and the replacement by another group ofpersons was not fortuitous. The vacancies into which the new Time-Keepers had moved in had not occurred by chance. It was, he said,
a part of a "diabolical plan to forcibly take over the functions of Time-Keepers in the Central Province with the aid and assistance ofpowerful political elements in the present P. A. Government and withthe illegal aid and cover of Police protection to certain group.” This isthe position set out in paragraph 26 of the Petition and, strange as itmay seem, it is not an averment denied by the Second Respondentin his affidavit. Learned Counsel for the 2nd Respondent did not offerany explanation for this; nor did he explain paragraph 4 of DocumentA. Mr. Jayasinghe merely said: “We do not know who JayaratneBandara is”. This came as a disappointing response, forMr. Jayaratne Bandara’s role is mentioned in the affidavit P13 of 27March 1995, which, according to the Journal entries of this Court wasfiled on 29 March 1995. On 20 March 1995, when the application forleave to proceed was considered, learned Counsel for the Petitionersstated that “certain discussions took place on 13.3.95 in the Office ofthe Governor of the Central Province and that matters whichtranspired at that discussion further establish the complicity of the2nd and 6th Respondents in the matters complained of in thePetition.” Nothing had been done to ascertain what had taken placeat the meeting with the Governor. The minutes of the meeting with theGovernor were submitted by learned Counsel for the Petitioner duringthe argument at which Mr. Jayasinghe was present. Although therewas sufficient time to do so, no effort had been made to ascertainwho Mr. Jayaratne Bandara was. In the absence of an express denialor explanation to the contrary, the averment that Mr. JayaratneBandara was a Co-ordinating Secretary of the Minister standsuncontradicted. There is no denial that Mr. Jpyaratna Bandara didattend the Governor’s meeting, and both P13 and Document Asupport the view that Mr. Jayaratne Bandara was the spokespersonfor the new Time-Keepers. He was by no means an ordinary person.
In paragraph 5 of his affidavit, Mr. Keheliya Rambukwella, theMinister of Transport of the Central Provincial Council, said that hewas informed that the group of persons who had attacked the Time-Keepers “had the political patronage of the 2nd Respondent.” Hisinformants were the President and Secretary of the Co-operativeSociety.
Neither the Petitioners in their Petition nor the President andSecretary of the Co-operative Society in their affidavit dated 14 March1995 (P9) alleged that the Second Respondent either arranged orinstigated or actively participated in the illegal and unlawfuloperations complained of. Although in paragraph 11 of their affidavitdated 27 March 1995 (P13) the First and Third Respondents statedthat at the meeting convened by the Governor, the Governor hadbeen informed “On more than one occasion”, by Mr. JayaratneBandara that “what had taken place was done on the instructions [of]the 2nd Respondent Minister”, yet this is not borne out by the officialminutes of the meeting. (Document A). I have said that not everythingstated at the meeting was recorded in the minutes. However, even ifMr. Jayaratne Bandara had said that he acted on the instructions ofthe Second Respondent and that he could not agree to the proposedsolution without the concurrence of the Second Respondent, it wasby no means conclusive evidence of the fact that the incidents of 10and 14 February had the secret approbation of the SecondRespondent, much less that they were the outcome of hisinstructions. Mr. Jayaratne Bandara appears to have been acting forand on behalf of those who had performed the evil deeds of 10 and14 February and/or benefitted from them. He may have been a Co-ordinating Secretary to the Second Respondent, yet, there is nothingto show that he had been commanded or requested or permitted tospeak or act on behalf of the Second Respondent. In paragraph 16of his affidavit the Second Respondent states that “even if the saidperpetrators had used my name the same had been done without myknowledge, consent or concurrence and I specifically deny anyassociation with the said perpetrators of the alleged incident.” Therepeated use of the word ‘perpetrators’ in my view signifies theSecond Respondent’s condemnation of the unlawful acts in question.Had there been any misunderstanding on the part of the Third, Fourthand Fifth Respondents and other police officers, there should now beno doubt they were not expected by the Second Respondent tosupport or protect the First Respondent or the new Time-Keepers orthose who ousted the old Time-Keepers.
The Second respondent in his affidavit drew attention to the factthat Mr. Upali Weeratunge in his letter dated 12 February 1995, .addressed to the Second Respondent (P5), after stating that about
200 persons had attempted to oust them alleging that they were“Minister Anuruddha Ratwatte’s men” and that they were taking overthe functions of Time-Keepers, had gone on to say that uponinvestigation they were of the opinion that the Second Respondentdid not have any connection with and had not approved what hadtaken place. Mr. Weeratunge was writing on behalf of all the formerTime-Keepers. There may well have been a proposal to redress thegrievances of certain persons in which the Second Respondent hadan interest. He may have actively sought to bring relief to a group ofdisadvantaged persons, as Mr. Jayaratne Banda said at theGovernor’s meeting. However, there was nothing to show that theSecond Respondent was privy to the so-called “diabolical plan" orthat he participated in any way in the events of the 10th or 14th ofFebruary. The strategem may have been an outcome of the proposalto find employment for certain persons; but the devising of theexpedients and the execution of the design were matters for whichthe Second Respondent was not responsible. If the SecondRespondent intended assisting certain unemployed persons, what hewanted to accomplish was brought about unlawfully, and therefore,as far as he was concerned, ill done. I reject the suggestion that,merely because the Second Respondent may have planned toprovide employment for certain persons, the ousting of the Time-Keepers by unlawful means was an inevitable or necessaryeventuality of his design. Its execution was a completely differentmatter. In my view it has not been established, as alleged by thePetitioners, that “the involvement of the police, the 1st Respondentand the use of [official] vehicles … could not have taken placewithout the knowledge, involvement and acquiescence of the SecondRespondent Minister…” The use of official vehicles does add weightto the submission that there was State action, and the SecondRespondent may have been ultimately accountable as the Minister inCharge of the various Departments for the use of official vehicles, butit has not been established that he personally ordered or sanctionedtheir use. Nor can he be held vicariously liable for the unauthorizedacts of his officers, including those of his Co-ordinating Secretary,Mr. Tikiri Banda, although they may have pretended to have beenacting with his authority.
In paragraph 26 of the Petition it is alleged that the forcible takeover was a part of a “diabolical plan” to take over the functions of theTime-Keepers “with the aid and assistance of powerful politicalelements in the present PA Government.” The Central Private BusWorkers’ Co-operative Society wrote a letter (P6A) under the hands ofits President and Secretary, addressed to the President of theRepublic, stating that although those who were attempting to oustthem had claimed to be entitled to do so because they weresupporters of the Peoples' Alliance, yet they were perhaps unawareof the effort and support rendered by the members of the Society atthe past General and Presidential Elections to bring the Peoples’Alliance into power. In paragraph 7 of the minutes of the meeting withthe Governor, Mr. Upali Weeratunge, a member of, and aspokesperson for, the Co-operative Society, is reported to have saidthat he and many members of the Society supported the PA andtherefore regretted what had happened. In Mr. Upaliratne’s complaintto the Police (P14) he stated that “Tikiri”, having said to him andcertain others that they had “eaten enough during seventeen years”,addressed Sarath Weeratunge, Upali Weeratunge, Niyandigala andothers and said, “You have no problem. You are our men.You should work.” Niyandagala (No. 9), S. Weeratunge(No. 18) and Upali Weeratunge (No. 23) were ousted despite theirpolitical loyalties. (See P3. See also 3R3 – the Report of Mr. D. B.Ekanayake where Niyandagala (No. 7), Upali Weeratunge (No. 23)and S. Weeratunge (26) are listed as complainants.) Indeed, thepetitioners themselves did not state that the alleged discriminationwas against persons who were not members of the Peoples’ Alliance.What they said was that Mr. Keheliya Rambukwella was a member ofthe Board of Ministers of the Central Provincial Council which wascomprised “mainly of members of the United National Party which isthe principle party in opposition to the current Peoples’ Alliancegovernment”.
The new Time-Keepers may have been the beneficiaries of aspoils system of some sort favouring a certain group of persons.However, it has not been established that the ousting andreplacement of the Time-Keepers depended on political affiliationsand therefore the claim that Article 12(2) of the Constitution wasviolated on account of discrimination based upon political opinionmust fail.
THE ALLEGED INVOLVEMENT OF THE 7TH TO 19THRESPONDENTSI have already pointed out that the 8th, 9th and 18th Respondentswere mistakenly named as Respondents and I hold that they were notin any way involved in the events of the 10th and 14th of February1995.
The case of the Petitioners against the 7th, 10th, 11th, 12th, 13th,14th, 15th, 16th, 17th and 19th Respondents is that they and otherswhose names and addresses appear in P16, “usurped” theirfunctions as Time-Keepers. For the reasons given, I am of the viewthat each and everyone who took office as Time-Keepers at theKandy Bus Stand on and after the 14th of February 1995 were andcontinue to be in unlawful occupation of such offices and to thatextent are responsible for depriving the former Time-Keepers of theiremployment and for unlawfully obstructing the Central ProvincialCouncil, and its Ministry of Transport in particular, from dischargingits legitimate duties. In my view the alleged operations of the 10thand 14th of February were for the purpose of placing the new Time-Keepers in occupation of the positions held by members of the Co-operative Society. The new Time-Keepers were the beneficiaries ofthe unlawful operations. They are the obstacles in the way of thedischarge of the duties and functions of the duly appointed and onlylegitimate Time-Keepers.
The Petitioners have not alleged that the new Time-Keepers werepersonally involved in the acts of “thuggery”, although some of themmay well have been involved. Mr. Joseph Deva, the tenthRespondent, for instance, may have been one of them. In hisstatement to the Police on 18th February 1995 (P14) the FirstPetitioner stated that “Deva” was among those persons whoassaulted him. In the Report of Mr. D. B. Ekanayake, A.S.P. (3R3) it isstated that Mr. Sarath Bandara complained that he was forciblyexpelled by about 40 people among who was “Deva of
Deiyanawela”. (See also the notes of R.P.C. 10416 Dharmaratne of11 February 1995 in 3R2). However, Mr. Joseph Deva, when he wasproduced before the Officer-in-Charge of the Police Station on19 February 1995, denied that the complainants had been chasedaway or abused. He said: “We too work there. We work on goodterms.” (See 3R2). Mr. Joseph Deva was named by Mr. Upaliratne,the First Petitioner, in his complaint to the Police on 31 May 1995 (SeeDocument X) and is accused in M.C. Case No. 39193/95 ofassaulting Mr. Upaliratne. (See Document X2). The SeventhRespondent, Dhammika, and the Eleventh Respondent,Jayawickrama, are co-accused persons in that case, and in hisaffidavit dated 17 July 1995 Mr. Upaliratne states that they wereinvolved in ousting the former Time-Keepers. Mr. Joseph Deva hasnot filed an affidavit in response to the Petition. His statement to thePolice that the new Time-Keepers, including himself, came to occupytheir positions without force and that they were working together withthe old Time-Keepers is not supported by the evidence in this case.
Although some or even most of the new Time-Keepers may nothave assaulted and intimidated the old Time-Keepers, I am of theview that they had all concurred and combined privity with the moreactive and conspicuous participants, including officers of the State,to illegally and reprehensibly oust the old Time-Keepers and to taketheir places and continue to unlawfully functions as Time-Keepers. Ireject the suggestion that they happened to be available to fill thevacancies in fortuitous circumstances.
THE ALLEGED INVOLVEMENT OF THE POLICEThe complaint against the Police is that –
They had provided “illegal aid and cover” to the group of persons
who were responsible for the unlawful acts in question; and that
By reason of their lack of sufficient and/or timely action, they had
failed to prevent such acts.
In the circumstances, the Petitioners alleged, that the constitutionalguarantee of equal protection was denied to the former Time-Keepers.
On 10th February 1995 Mr. Sarath Weeratunge and otherscomplained to the Police that when they arrived at their customaryplaces of work, the locks had been broken and others had unlawfullyentered the premises. They reported that, on being questioned, thosein occupation of their premises had said that from that day they hadtaken over the function of Time-Keepers. In their complaint the oldTime-Keepers said that they had informed the Minister of Transport ofthe Provincial Council, Mr. Rambukwella, of this matter and that hehad in turn communicated the information to the President of theRepublic and to the Minister of Transport of Sri Lanka.Mr. Rambukwella had directed the old Time-Keepers to report thematter to the Police. And so they requested the Police to inquire intothe matter and provide them with the opportunity of discharging theirusual functions. (See P4).
In answering, inter alia, the Petitioners’ averment that the actscomplained of “occurred with the knowledge and/or under the coverof Police protection inasmuch as the Police failed to take any actionto prevent the criminal acts perpetrated against the Petitioners andtheir colleagues and/or to enable them to perform their legitimate andlawful functions even after they were apprised of the aforesaidincidents”, the Third Respondent, Mr. D. B. Ekanayake, AssistantSuperintendent of Police, in paragraph 19 of his affidavit, stated thatthe complaint of Mr. Sarath Weeratunga on 10.2.95 (P4) was“investigated” and that "R PC 10416 Dharmaratne was despatchedto the scene of the incident who dispersed unauthorised persons inoccupation of the Time-Keeper Shed and directed them to come tothe Police to have their statements recorded. Consequent to thisdirection only Joseph Deva came to the Police on 20.02.95 -statement marked 3R2, said Joseph Deva was produced before OIC,MO Branch.”
The statement of Mr. Ekanayake is not borne out by 3R2 which hefiled in support of his averments. That document contains copies ofseveral entries made on the 11th and t2th of February by ReservePolice Constable 10416 Dharmaratne. The incident of whichMr. Sarath Weeratunge had complained had taken place on the 10thof February. Mr. Weeratunga’s statement was recorded by the Policeon 10 February at 1440 hours. The statement of Mr. Ekanayake that“Dharmaratne was despatched to the scene of the incident" is untrueand known by him, if he had read the supporting evidence he hasproduced, to be untrue. According to his inquiry notes, Dharmaratne“while engaged on day patrol duty in the Central Bus Stand at 930hours on 11.2.95 inquired for the complainant of MCR 707 C 3291/186. [Mr. Sarath Weeratunge,] and met him and recorded hiscomplaint and his request to warn those who had come there “not tocome to this place hereafter and harass us.” On the following day, i.e.on the 12th of February, R. P. C. Dharmaratne records the fact that hevisited Mr. Weeratunga’s residence but that on not finding him there,left a message requesting him to come to the Police Station. There isnot a word about Dharmaratne having contacted any of the newTime-Keepers, let alone having “dispersed unauthorised persons inoccupation of the Time-Keepers Sheds,” either on the 10th or 12th. Iunreservedly reject the written submission of the 2nd, 3rd, 4th, 5thand 22nd respondents "that on receipt of information from one SarathWeeratunga – depicted in P4 on 10.2.95 at about 2.40 p.m. thePolice took prompt action dispersing (sic) the crowd and establishingpeace.” Mr. Jayasinghe, understandably, did not support or evenrefer to that submission in the course of the argument. Nor is thereany evidence produced by Mr. Ekanayake to show that any personother than Mr. Weeratunga was asked to report to the Police Station.Mr. Joseph Deva did turn up at the Police Station on 19th February1995 (and not on 20,February as stated by Mr. Ekanayake), but noevidence has been produced to show why he turned up eight daysafter the incident that took place on the 10th of February and aboutwhich a complaint had been lodged on the same day. The statementof Mr. Joseph Deva which was recorded on 19 February is prefacedwith the entry “Vide paragraph 186, the Respondent to the complaintDeva present in the station. I produce him to the O.I.C.”. Paragraph186 is the statement of Mr. Sarath Wijetunga (P4). There is noreference in that statement to Mr. Joseph Deva. On the other hand,Mr. Wijetunga had stated that he could not identify any person whohad gone into forcible occupation of their places of work. Thestatement of Mr. Ekanayake that Mr. Joseph Deva came to the PoliceStation on 20.2.95 "consequent to a direction” by R.P.C.Mr. Dharmaratne is false because Mr. Joseph Deva came to theStation on 19.02.95 and not on 20.2.95, and because he did notcome in response to any “direction” given by Mr. Dharmaratne. Hadhe come in response to such a direction, one would have expected areference to an entry in the books of the Police in which R.P.C.Dharmaratne had directed Mr. Joseph Deva to have come to thePolice Station. Instead, a misleading reference is made to an entry,namely to paragraph 186, that does not explain Mr. Deva’s presence.Why was this?
As far as the events of the 10th of February are concerned I am ofthe opinion that the police, while realizing the importance of takingappropriate action to remove those whom they frankly recognized as“unauthorized persons”, took no steps to remove the trespassers.Why were the events of the 10th of February entrusted to a mereReserve Constable without any supporting staff?
The attempt to oust the Time-Keepers on 10 February did notsucceed, despite the absence of the assistance of the Police.However, the second attempt was a complete success. According tothe Petitioner (see paragraph 15 of the Petition and paragraph 16 ofthe affidavit of Mr. Upaliratne dated 14 March 1995 ) on the 14th ofFebruary 1995 “a group of over 100 persons armed with iron rodsand poles arrived at the Kandy Bus Stand in the morning andassaulted and/or abused and/or intimidated the Petitioner and theircolleagues had prevented them from performing their legitimateduties at Bus Stands in the Kandy Town and have forcibly andunlawfully taken over and are now performing the functions of Time-Keepers from 14.2.1995 at the Kandy Bus Stand.” Mr. MohideenMeera Saibo, the Second Petitioner, was one of the victims and hemade a complaint to the police with regard to the assault committedon him. (P7A). Mr. N. P. S. S. Nissanka, the President of the CentralProvince Bus Workers’ Co-operative Society complained to the Policeof the forcible ouster, alleging that it had taken place in the presenceof and with the assistance of Police Officers, and he sought policeprotection to enable the members of the Society to resume their workon the following day. (P7B).
In his affidavit dated 14 March 1995, Mr. A. P. K. Liyanage, a textiletrader, stated as follows:
“3…at about 9 a.m. or 9.30 a.m. on 14/2/95 two motor cycles ofthe traffic branch ridden by Police Constables Nos. 16520 andR 11064 came and stopped in front of my boutique.
Around the same time on the said date a police jeep bearingnumber 32 – 4563 came and stopped in front of my shop on theopposite side of the road. There were about six (6) policemen inthat vehicle and stand around it.
I thereafter proceeded towards the Goodshed private bus haltwhich is close to my shop. At that time I also saw a yellowcoloured Pajero vehicle bearing on it the legend “IrrigationDepartment” stop near my shop. In the said vehicle I recognizeda Policeman commonly referred to as “Pol Abey” dressed incivvies. There were also about ten (10) others in the said vehiclewhom I could not recognize.
I state that when I reached the Goodshed bus halt I witnessed aperson called Sarath Bandara who is a member of the CentralProvince Bus Workers’ Co-operative Society…and who works asa “Time-Keeper” being assaulted. I could not recognize hisassailant.
I state that when I saw these incidents I returned to my shop. Ithen saw Mr. Tikiri Banda, the Co-ordinating Secretary to the Hon.Colonel Anuruddha Ratwatte, M.P., Minister of Irrigation andDeputy Minister of Defence with others alongside the said yellowcoloured Irrigation Pajero giving directions to various persons andthe operations that went on.
I state that the said Tikiri Banda was directing persons to theseveral sheds occupied by the several Time-Keepers as theiroffices. I saw the said persons who were being directed asaforesaid forcibly evict the Time-Keepers working there andforcibly occupy those sheds.
I noticed a crowd of about two hundred (200) persons involved inthis violent operation. These persons were armed with poles andiron rods concealed in newspaper. There were to my estimateabout fifteen (15) Policemen also involved in this operation.
I saw Sub-Inspector Vijitha Kumara of the Kandy Police forciblydragging Time-Keepers from their sheds.
14. I state that about a week thereafter two (2) persons said to befrom the C.I.D. made inquiries from me about what happened on14.2.95 and I told them what I have affirmed to above. The saidpersons took down some notes in their field note books whichwas not shown to me or signed by me. No formal statement wasrecorded from me. The said persons told me that an investigationteam would come from Colombo and directed me to keep myinterview with them confidential.”
Mr. M. R. Vijitha Kumara, Sub-Inspector of Police, who is the fifthRespondent, denies having been present at the place of the incidentand states that on the day in question he was “engaged in vice-detection duty between 9.30 hours and 17.00 hours.” In support ofhis alibi, he filed extracts from the Information Book (5R1). Two sets ofentries are set out in 5R1. The first entry is recorded at 9.30 hours atpage 73 of the Information Book wherein he states that he and otherofficers, dressed in “Civil” (as distinguished from official police)clothes, left the station on duty. The next entry is from page 75 and isrecorded at 17.00 hours. It gives a detailed list of activities at 11.15,11.45, 12.30, 13.30, 14.20, and 15.30 hours. There is no record ofwhat he was doing between 9.30 and 11.15 hours. Learned Counselwas unable to explain why page 74 was not produced and what theSub-Inspector and the other officers were doing. There was noquestion of being mistaken with regard to his identity, for Mr. VijithaKumara states that he “regularly came [into] contact with…Liyanage.” He suggests, however, that since he had “often warnedand reprimanded him” for obstructing the pavements, “thisdispleasure may have motivated the said Liyanage to tender P8’.Liyanage may have been happy to be able to identify Mr. VijithaKumara, but Mr. Vijitha Kumara has failed to show that Liyanage wasuttering a falsehood.
Mr. Vijitha Kumara states that although he was well known, noother person has identified him as being involved in the incident.There are various reasons why he may not have been seen by someof those who complained. For instance, the incidents took place atvarious places and Mr. Vijitha Kumara may not have been at some ofthem. Mr. Vijitha Kumara was one of a large crowd of persons andmay well have been missed in the melee. Moreover, even if he hadbeen identified, there could have been an understandable reluctanceto name him. As Mr. Upaliratne explained in paragraph 17 of hisaffidavit dated 18th May 1995: “I respectfully state that out of concernfor my safety I did not mention the presence and involvement of the5th Respondent in what transpired on 14.2.95 which I am personallyaware of and saw.” In his statement to the police (P14) Mr. Upaliratnetherefore confined himself to alleging that police officers in uniformarrived in a “Land Rover Jeep” preceded by a police bicycle and thatthey were moving about from place to place. He said he was in fearfor his life because when the assaulting took place the police didnothing to assist them.
In addition to Mr. Vijitha Kumara, Police Constables Nos. 16520and R11064 and Police Officer “Pol Abey" who arrived in an IrrigationDepartment vehicle were identified as being present at the scene ofthe incident. Police vehicle bearing Registration No. 32-4563 carryingabout half a dozen police officers dressed in civil clothes wasidentified. Persons moving from place to place directing the operationwere formally dressed and identified as police officers. In paragraph8(iii) of the affidavit of Mr. Vijitha Kumara, the Fifth Respondent, -which is reproduced word for word in paragraph 15(iii) of the affidavitof Mr. P. B. Ekanayake, the third Respondent – it is stated that“Liyanage who claims to have witnessed and known meticulousdetails including the names of the purported attackers and vehiclenumbers had not transmitted this information to any interested personor other authority prior to the preparation of P8.” P8 is Mr. Liyanage’saffidavit. If, as suggested by Mr. Vijitha Kumara in paragraph 8(i) ofhis affidavit and by Mr. Ekanayake in paragraph 15(i) of his affidavit,Mr. Liyanage was anxious to implicate Mr. Vijitha Kumara for purelypersonal reasons, one might have expected him to have volunteereda statement on an earlier occasion. He did not rush to giveinformation, for he had no personal interest in the matter. When hewas asked by two police officers from the C.I.D. about two weeksafter the incident, he related what had happened. These matters wererecorded and the two persons who had interrogated him had told himthat an investigation team would come from Colombo and he wasdirected to keep the “interview with them confidential" (see para. 14of Liyanage’s Affidavit P8). Both Mr. Vijitha Kumara and Mr. P. B.Ekanayake refer to P8 but neither of them denies the averments inparagraph 14 of Mr. Liyanage’s affidavit, according to which theinformation had been given to the police two weeks after the incident,that is on or about 28 February, whereas P8 is dated 14 March 1995.It is incorrect for the Third and Fifth Respondents to state thatMr. Liyanage’s first intimation took place when P8 was prepared.Mr. Vijitha Kumara’s alibi has not been established and there is noexplanation of the presence and role of Police Constables Nos.16520 and R11064 and Police Officer “Pol Abey" and police vehiclebearing Registration No. 32-4563. Nor is there any refutation of theallegation that police officers in official and casual garb wereidentified as moving about and/or passively lending support.
In his affidavit Mr. Ekanayake, the Third Respondent, states that“On 14.[2],95 when the alleged incident took place S.l. Amarasingheand P.C. 10649 Dissanayake were on mobile patrol and havingobserved a large crowd intervened and prevented a possible breachof the peace.” There are no affidavits from S.l. Amarasinghe or fromP.C. Dissanayake nor is there any other evidence supporting thisstatement. No. reference to the intervention of the police is made inMr. Ekanayake’s report 3R3. What he does say in that report is thatthe Time-Keepers who were legitimately performing their duties wereforcibly ousted by another group of persons. Mr. Ekanayake in hisreport attempts to explain away the fact that persons weretrespassing on the premises of the Time-Keepers, assaulting andintimidating people and indulging in unlawful behaviour by statingthat the bus stand was a public place. I think his explanation hadwhitewashing as its principal object. I have already referred toMr. Ekanayake’s attempt to cover up the unlawful activities inquestion. The problem, he suggests, appears to have been based onsome political consideration. In his opinion “the main dispute” was“prima facie civil in nature”, and he says that he “is in the process ofreferring this dispute to the relevant Mediation Board.” At the sametime he says he had recommended that the information BookExtracts should be forwarded to the Attorney-General for advice. Fivemonths after his report no progress has been made.
What action has the Police taken with regard to the complaints ofassault and trespass? Mr. Ekanayake says that he is “presentlycontinuing with the investigation” and attributes the tardiness of thepolice to the fact that sufficient evidence was not available. He saysthat only the President of the Co-operative Society and the SecondPetitioner "had made statements to the Police on their own volition.The Police had to go on a voyage of discovery to identify the othervictims including the 1st and 3rd Petitioners! He says that the victims“were reluctant to complain and failed to provide the police with thenecessary information.” In his report (3R3) Mr. Ekanayake gives thenames of 34 persons who had complained. What action was taken ontheir complaints? None. What action was taken on the complaint ofthe President of the Society who asked for police protection for all themembers (P7B)? None. What action was taken on Mohideen MeeraSaibo’s complaint (P7A)? None. What action was taken on thestatement of Mr. Upaliratne on 18 February (P14)? None. What actionwas taken on the several complaints made on the telephone to theDeputy Inspector General of Police by Mr. Keheliya Rambukwella andin his letter dated 16 February 1995 (P10A)? None. The SecondRespondent who is among other things, the Deputy Minister ofDefence states in his affidavit that he became aware of the allegedincident through a newspaper report and “directed the relevantpolice authorities to take immediate and necessary action to maintainlaw and order and investigate thereto.” What action has the Policetaken? None.
The Police function fulfils a most fundamental obligation ofGovernment to its constituency. Public safety, the maintenance ofpublic order and the preservation of peace and tranquility dependnot only on the existence of adequate laws but also on the way inwhich it is applied. In Railway Express Agency Inc. v. New York(2),Justice Jackson observed that “Nothing opens the door to arbitraryaction so effectively as to allow officials to pick and choose only a fewto whom they will apply legislation. Courts can take no bettermeasure to assure that laws will be just than to require that laws beequal in operation.” Matthews, J. observed in Yick Wo v. Hopkins<3).“Though the law itself be fair on its face and impartial in appearance,yet, if it is applied and administered by public authority with an evileye and unequal hand, so as practically to make unjust and illegaldiscriminations between persons in similar circumstances, material totheir rights, the denial of equal justice is still within the prohibition ofthe Constitution.”
By necessity the State has cloaked policemen with substantialdiscretionary power. The police may classify persons and draw linesin the application of laws, but discrimination must not be based uponimpermissible criteria or arbitrarily used to favour or burden a groupof individuals. In the matter before this Court, the lax enforcement ofthe law against those who were alleged to have violated the law, andthe failure to afford protection to those who were in need of protectionare unsupported by any neutral justification and were either totallyirrational or entirely motivated by a desire to achieve someimpermissible purpose. If I might borrow the words of Matthews, J. inYick Wo, the police have used their powers “with a mind so unequaland oppressive as to amount to a practical denial by the State of thatequal protection of the laws which is secured to the petitioners, as toall other persons, by the broad and benign provisions of “Article12(1) of the Constitution. In the circumstances, I am of the view thatArticle 12(1) of the Constitution was violated and continues to beviolated by the Police.
Faced with the inability to explain the role and presence of Sub-Inspector of Police Mr. Vijitha Kumara, the presence of PoliceConstables Nos. 16520 and R 11064, Police Officer “Pol Abey” andother police officers, whether dressed in the distinctive clothing wornby police officers or otherwise, learned Counsel for the Third, Fourthand Fifth Respondents, Mr. Jayasinghe, attempted to discredit theevidence adduced by the Petitioners in general. He submitted thatthe various complaints made were not consistent in that they referredto various number of persons who were present. The ousting of theTime-Keepers took place at several locations and therefore thenumber of persons present must necessarily have varied from thepoint of view of the person reporting aspects of the incident takingplace at the location he was. Whatever the numbers were precisely,the Third Respondent refers to the presence of “a large crowd" whowere involved in the incident.
Mr. Jayasinghe then suggested that the averments of thePetitioners and the affidavits filed in support of their contentionslacked credibility because there was a progressive exaggeration ofthe events that were supposed to have taken place as time went on.In that connection Mr. Jayasinghe said that no reference had beenmade in affidavit P9 to the use of clubs and iron rods. Mr. Jayasinghe,however, failed to explain the significance of the statement in P9 that“over a hundred armed persons had been involved.”
Mr. Jayasinghe then argued, mixing his metaphors, that whattook place was, “a minor incident,” “a storm in a tea cup”, although“now an attempt is being made to make a mountain out of a molehillby implicating the Minister and the Police”. One is hardly justified indescribing the forcible ousting and replacement of a group ofpersons who were legitimately employed in the business of assistinga Provincial Council to discharge its vital public service of ensuringan orderly transport service as trivial. The assessment of the situationby Mr. Rambukwella, in his affidavit and in his letter to the DeputyInspector-General of Police, which I have referred to earlier, seems tome to be more realistic. Nor am I able to accept learned Counsel’ssubmission that the Police had been implicated merely for thepurpose of obtaining relief from this Court. The Police wereimplicated because of the role they had played in ousting the oldTime-Keepers and in unlawfully installing and keeping in office a newgroup of people.
STATE RESPONSIBILITYDr. de Costa and Mr. Gamini Perera submitted that the acts of theFirst Respondent and the new Time-Keepers were private acts andcould not be a matter for complaint under Article 126 of theConstitution, for the Court had jurisdiction only to hear and determinea question relating to the infringement or imminent infringement of afundamental right by executive or administrative action. In support oftheir submission, learned Counsel cited the decision of this Court inPerera v. University Grants Commission(4> in which it was stated that:
“Constitutional guarantees of Fundamental Rights are directedagainst the State and its organs. Only infringement or imminentinfringement by Executive or Administrative action of anyFundamental right or Language right can form the subjectmatter of a complaint under Article 126 of the Constitution. Thewrongful act of an individual, unsupported by State authority issimply a private wrong. Only if it is sanctioned by the State or
done under the State authority does it constitute a matter forcomplaint under Article 126. Fundamental rights operate onlybetween individuals and the State.”
In Perera v. University Grants Commission, Sharvananda, J. (as hethen was) explained that:
“The expression 'Executive or Administrative action’ embracesexecutive action of the State or its agents or instrumentalitiesexercising governmental functions. It refers to exertion of Statepower in all its forms. The right to equality pervades all spheresof State action including administrative action of all kinds by allGovernment bodies. The constitutional provision thereforemeans that no agency of the State or the officers or agents bywhom its powers are exerted shall deny to any person the equalprotection of the law. Whoever by virtue of public position undera State Government denies or takes away the equal protectionof the laws violates the constitutional inhibitions, and as he actsin the name and for the State and is clothed with the State’sauthority, his act is that of the State. (Neal v. Delaware)(S).
Although the concept of the public-private divide has beenquestioned, and strong arguments have been adduced for theapplication of human rights law to acts between non-State actors,(e g. see Andrew Clapyham, Human Rights in the Private Sphere,1993 Clarendon Press, Oxford), it is not necessary for the purposesof the matter before me to go into that complex question. Had thisbeen merely a matter of determining whether the old Time-Keeperswere unlawfully ousted by the new Time-Keepers, it might have beenappropriate to consider whether Article 126 of the Constitution stoodin the way of applying the provisions of Chapter III of the Constitution.
The complaint before us is that the ousting of the old Time-Keepers, the substitution of the new Time-Keepers, and thecontinued holding of office by the new Time-Keepers, were broughtabout by the deprivation of the Constitutional right of the old Time-Keepers to the equal protection of the law, and that denial wasaccomplished with the connivance, encouragement and significant
assistance of officers of the State. In the circumstances, those whoconspired with the Government officials to deprive the old Time-Keepers of their fundamental right did so under “colour of law” andtheir conduct may be fairly attributed to the State as executive action.(See Dennis v. Sparks(6>, Tower v. Glover(7)). As Mr. Justice Brennan,writing for the Court, said in Lugar v. Edmonson Oil Co. Inc. (8) aperson charged with a deprivation of a constitutional guarantee may“fairly be said to be a State actor either because he is a State officialor because he has acted together with or has obtained significant aidfrom State officials, or because his conduct is otherwise chargeableto the State.”
In Mohammed Faize v. Attorney-General and Others<9> Fernando, J.said that ”… the act of a private individual would render him liable ifin the circumstances that act is 'Executive or Administrative’. The actof a private individual would be Executive if such act is done with theauthority of the Executive; and such authority transforms an otherwisepurely private act into an Executive or Administrative action; suchauthority may be expressed or implied from prior or concurrent actsmanifesting approval, instigation, connivance, acquiescence,participation, and the like, including inaction in circumstances wherethere is a duty to act; and from subsequent acts which manifestratification or adoption."
Dr. de Costa submitted that the First Respondent was not a Stateofficer and that his acts could not be regarded as Executive orAdministrative action. It would also follow that if he was not a StateOfficer, then the assistance he gave the new Time-Keepers would notmake them State actions. He admitted, however, that as the Co-ordinating Secretary to a Minister, the First Respondent was paid bythe Government, that he used Government vehicles, Governmenttelephones, and other facilities and performed public functions. Hewas, as he claimed, known to several people, and indeed he wasidentified as the Co-ordinating Secretary to the Minister and heappeared to the public to be exercising the authority of his office.Dr. de Costa’s contention, however, was that a Co-ordinatingSecretary’s tenure of office depended on the continuation in power ofthe political party to which he belonged; and since a change ofGovernment after an election would result in the termination of hisservices, he was not a State Officer capable of exercising Executiveor Administrative functions. I have no hesitation in rejecting thatsubmission, for the question of determining whether someoneperforms Executive or Administrative functions depends on thenature of his office including its powers, duties and functions.
I am of the view that the acts of the First Respondent are fairlyattributable to the State and therefore engaged State responsibilityfor the purposes of Articles 17 and 126 of the Constitution. He mayhave exceeded the scope of his authority. However, when a publicofficer takes acts relating to his office, those actions should beconsidered to be executive action even if they exceed the scope ofhis authority, for he acts under colour of his office. (Screws v. UnitedStates(10)).
The State is also accountable because it has not merely beenpassive and tolerated the unlawful ousting of the old Time-Keepersby private persons, yielding readily to the influence of others and byits disinclination to act, but also because it has associated itself withit through the positive action, encouragement and assistance of thepolice force and its officers. I am in agreement with learned Counselfor the Petitioner that the replacement of the Time-Keepers wasbrought about by the significant aid rendered by State officials,including the first Respondent, the want of adequate action of thepolice in relation to the events of 10th February 1995, and the activerole played by the Police on 14th February 1995 and by theirsubsequent lack of action. Admittedly some of the officers who tookpart in the operations were not in uniform. However, they wereidentified as police officers. In Griffin v. Maryland<1,) it was held thatwhen a private business hired an off duty police officer to act as asecurity guard, there was State action connected to his actions takenon behalf of the private business to the extent he appeared to thepublic to be exercising the authority of a police officer.
ORDERFor the reasons set out in my judgment, I declare that the Statehas violated Article 12(1) of the Constitution.
The First Respondent shall pay the Petitioners a sum of Rs. 15,000as costs.
The State shall pay each of the Petitioners a sum of Rs. 15,000 ascompensation.
The 7th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th and 19thRespondents are hereby ordered forthwith to –
vacate the Time-Keepers premises at the locations set out indocument P3; and
desist from performing the duties and functions of Time-Keepers at those locations or elsewhere in Kandy.
The Inspector-General of Police is directed to ensure that the 7th,10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th and 19th Respondentscomply with the orders referred to in the preceding paragraph.
The Inspector-General of Police is further directed forthwith to –
assist the persons named in document P3 to regainpossession of the premises vacated by them on 14th February1995; and
provide such persons with the protection required to enablethem to discharge their duties and functions as Time-Keepers.
The Inspector-General of Police is directed to report to this Courton or before the 20th of September 1995 on the steps he has taken tocomply with the directions issued to him in this Order.
Mr. Jayasinghe submitted that persons other than the petitionersare not entitled to any relief and he cited the decision in Somawathiev. Weerasinghe<12) in support of his view. The case of Somawathiedeals with the threshold question of the jurisdiction of the Court interms of Article 126(2) of the Constitution to entertain a petition filedby a person whose rights have not been infringed, and not thequestion of relief the Court may eventually grant in the exercise of itspowers under Article 126(4).
FERNANDO, J.-1 agree.
DHEERARATNE, J. – I agree.
Relief granted.