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 3 Sri L.R.
v.OFFICER-IN-CHARGE, SITHAMBARAPURAMREGIONAL CAMP POLICE POST, VAVUNIYA AND OTHERS
SUPREME COURTFERNANDO, J.
J. A. N. DE SILVA, J. ANDWEERASURIYA, J.
SC NO. 44/2002 (FR)
JULY 01, 2002
Fundamental Rights – Restrictions against travel and residence imposed on arefugee – Permissible limits of such restrictions – Article 14 (1) (h) of theConstitution.
The petitioner was a Tamil refugee living in a refugee camp in Vavuniya. He wassubjected to severe restrictions against travel to and residence in Colombo oncein June, 2001, for taking his sick child to Colombo for treatment, and again onvisiting a sick relative in Colombo in December – January, 2002, accompaniedby his two children. An application was filed in court on 16. 01. 2002 in respectof the January, 2002, restrictions. The petitioner had this application filed first beforereturning to Vavuniya from Colombo complying with the conditions of travel pass.
The petitioner had to purchase a form, supply the photographs of himself andhis two children who accompanied him to Colombo and find a sponsor in Colombopaying Rs. 1,000 (to that sponsor). The sponsor had to be approved by the Police,to stand surety for producing the petitioner and his two children. The petitionerhad to then attend an inquiry. Further, the petitioner and the two children werevideographed and given a pass for two weeks to travel to Colombo and to resideat Modera at a given address.
The petitioner’s failure to complain on account of the June, 2001, travelrestrictions within one month did not estop him from complaining againstthe subsequent restrictions. The application was therefore, not time-barred.
The impugned restrictions were burdensome, time consuming and costlyand effectively restricted the right of travel and residence. They were not
SCVadivelu v. Officer-in-Charge, Sithambarapuram
Regional Camp Police Post, Vavuniya and Others (Fernando, J.)147
permitted by law or emergency regulations in terms of Articles 15 (6) and15 (7) of the Constitution.
3. The petitioner's fundamental rights under Article 14 (1) (h) has beeninfringed by executive action by application to him of the travel pass system.
APPLICATION for relief for infringement of fundamental rights.
M. A. Sumanthiran with P. S. Bandaranayake, K. Prabakaran and RenukaSenanayake for petitioner.
/. Demuni de Silva, Senior State Counsel for respondents.
Cur. adv. vult.
September 05, 2002FERNANDO, J.
This application was argued together with Dias v. Secretary, Ministryof Defence, SC application No. 604/2001 (FR).
The petitioner was compelled to apply for and obtain a “travel pass”in order to travel from Vavuniya to Colombo, which he claimed wasan infringement of his fundamental rights under Articles 11, 12 (1),12 (2) and 14 (1) (/}). Leave to proceed was not granted in respectof Article 11.
The petitioner is a Tamil citizen of Sri Lanka who had been livingin Killinochchi and carrying oh business as a merchant. In 1990 hehad to leave Sri Lanka, with his family, on account of the thenprevailing armed conflict. In 1995 they were brought back to Sri Lankaby the United Nations High Commissioner for Refugees, and wereplaced in the Sithambarapuram Refugee Camp (or ‘Weifare Centre")in Vavuniya.
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From the inception, they were not pemitted to leave the Camppremises without obtaining a pass. At first, a pass was valid only forthe date of issue, but later it was vaid for three months at a time.The pass entitled the holder to travel only in the areas “cleared” bythe Security Forces, and that too only within the Vavuniya District.The petitioner claimed that because of the restrictions on travelimposed by the pass system, he and other members of his familywere unable to obtain any form of gainful employment.
The petitioner alleged that in June, 2001, his three-year old grand-daughter suffered attacks of epilepsy, and was admitted to theVavuniya General Hospital; that from there she was transferred to theAnuradhapura General Hospital; and that the District Medical OfficerAnuradhapura, advised that she be taken to Colombo. For that purposethe petitioner had to apply for travel passes for himself and hisdaughter. He had to submit a “Referral of Patients for SpecialManagement” form issued by the DMO, Vavuniya and to arrange fora sponsor to guarantee their return. That “Referral” was dated26. 09. 2001, and contained an endorsement by the DMO : “Thisletter is given to get pass at Sanasa Camp”, and it had been signedby the Consultant Paediatrician of the Lady Ridgeway Hospitalon 06. 10. 2001. The petitioner averred that they were granted travelpasses limited to seven days, and therefore had to return within sevendays although the child’s treatment had not been completed.The respondents stated that the relevant books and records did notshow that the petitioner had made an application for travel passesin June 2001, and accordingly denied the petitioner’s version. Thatdenial has been made without due care, and is unacceptable, as itis quite clear from -the documents produced by the petitioner that thechild had been examined in Colombo in October 2001. An applicationunder. Article 126 was not filed within one month, and accordingly thatincident is not the real issue in this case, although it does help tounderstand the petitioner’s state of mind in regard to the pass system.
. Thereafter, on 19. 12. 2001, the petitioner received a telegramthat his wife’s uncle was seriously ill in Colombo, and wished to see
SCVadivelu v. Offtcer-in-Charge, Sithambarapuram
Regional Camp Police Post, Vavuniya and Others (Fernando, J.)149
his family. His complaint is in relation to the several delays anddifficulties which he and his two children experienced in regard to theirjourney to Colombo to see their sick relative. He alleged that he hadto purchase an application form; to supply photographs; to furnish theaddress of the place in Colombo at which they intended to stay; andto produce a sponsor who would guarantee their return. He madehis application on 22. 12. 2001, giving an address at Modera, andwas told to go back to the Camp and wait until a response wasreceived from the Modera police. The petitioner averred that thesponsor had to be “a person who was deemed as a qualified suretyby the Police for this purpose”, and that he had to pay that sponsora sum of Rs. 1,000. They had also to present themselves for an inquiryat the Sanasa police post of the Vavuniya police and satisfy the policethat their travel was for a bona fide purpose. The sponsor had tosurrender her own “pass”, and was given time till 25. 01. 2002 toproduce the petitioner and his two children in order to reclaim her“pass”. On 02. 01. 2002, the petitioner and his two children werevideographed at the police post, and given two-week tavel passes.The instructions on the reverse of the travel pass required the holder,on reaching his destination, to hand over the pass to the OIC of therelevant police station "and obtain a Residence Registration Passwithin 24 hours on arrival”, and, on his return, to surrender theResidence Registration Pass to the police, to recover the travel passfrom the police, and to hand it back to the authority which issuedit. They complied with all those conditions. They did not risk overstayingin Colombo, fearing that the police might take them into custody andthat the sponsor might forfeit her own pass, and decided to returnto Vavuniya on time. Before leaving Colombo, however, the petitonergave instructions to make this application, which was filed on16. 01. 2002.
The petitioner contended that the several conditions imposed onhim were restrictions on his freedom of movement, that those conditionsand restrictions had not been imposed on other persons similarlycircumstanced, and that they had been imposed on him on account
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of his race; and also that they were not authorized or imposed byany law or emergency regulation. He submitted that thereby hisfundamental rights under Article 14 (1) (h), 12 (1) and 12 12 (2) hadbeen in infringed.
The respondents contended that although the “Residential andTravel Pass System” was not introduced by any law or emergencyregulation, that system was implemented in the Vavuniya District inthe interests of national security as "it is the duty of the State tosafeguard the independence, sovereignty, unity and territorial integrity *>of Sri Lanka and ensure the safety of every citizen and property”.That system had been introduced in 1992 as a security measure “and. was operated with the assistance of the Police, Armed Forces andother civilian authorities in order to prevent LTTE cadres from infiltratinginto the Vavuniya District and areas south of Vavuniya to engage inacts of sabotage, killings and other terrorist activities”. A similar systemwas in force for those who wished to enter Vavuniya. Further, the.petitioner was a displaced person residing in a Welfare Centre, and '
“it was to his advantage to have the security of computer embossed“travel pass” as it helped the establishment of his identity wherever «»he travelled [as there was a computer system which] enabled theauthorities to verify the identity of such persons within a short periodand avoid undue delays and inconvenience to visitors such as thepetitioner”. They also produced several internal circulars and memorandaregarding the implementation of the pass system, relying on whichthey urged that if the petitioner had so desired his pass could havebeen extended “up to a period of 3 months", and that if the petitionerhad failed to return “steps would be taken to investigate the matterand if it is established that [he had] left the Island or settled downin any other part of the country the [sponsor’s] pass would be duly 110■ released to the sponsor”. The respondents also submitted that thepetitioner’s application was out of time.
In regard to the steps which the petitioner had to take in orderto obtain travel passes, learned Senior Counsel did not concede that
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Regional Camp Police Post, Vavuniya and Others (Fernando, J.)151
he had to purchase an application form and to make a paymentto the sponsor. However, the respondents have offered no explanationas to how applicants obtain application forms, and it is also likely thata sponsor acceptable to the authorities would have expected somecompensation in return for his guarantee. I find the petitioner’s versionto be more probable.
The procedures with which the petitioner had to comply did notprevent him travelling to Colombo, and hence there was no totaldenial of his right to freedom of movement. However, the questionarises whether those procedures were nevertheless so burdensomeas to amount to an infirngement or impairment of that right. Therespondent’s contentions raise two issues. Were those procedures andrestrictions no more than mere formalities which no sensible personwould complain of, and to which the maxim de minimis non curatlex would apply? Was the freedom of movement, intrinsically andinherently, subject to implied restrictions of that sort?
If the procedures which the petitioner had to follow were broadlycomparable to the requirements of obtaining a boarding pass, havingluggage security checked, and completing an embarkation card onleaving a country by air, I would readily have agreed that there wasno infringement. However, those procedures were for beyond maintaininga record of the identity of persons travelling to and from Vavuniya,and their places of residence. They were quite burdensome, time-consuming and costly, and effectivley restricted the right of travel andresidence. A delay of ten days in the issue of travel pass wouldsometimes make a journey futile. Thus, where the intended travel wasfor the purpose of urgent medical treatment, or visiting a dying relative,the patient might have died before a pass was issued.. Again, if travelwas in order to attend a function, or to vote at an election, or toinstitute legal proceedings (such as this very application), delay mighthave defeated the purpose of travel. Finding an acceptable sponsor,and making the necessary payment, would be more than mereformalities, particularly for a resident of a refugee camp. Therequirements in regard to notifying a place of residence and obtaining
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a residence registration pass had the the effect of discouraging achange of residence in Colombo, and to that extent affected movementand residence within Colombo. Although the respondents claim thatthe petitioner could have applied for a travel pass for a longer period,or that the stipulated period could have been extended, they appearto concede that the maximum was three months. Further, althoughthey assert that if the petitioner left Sri Lanka or chose a place ofresidence outside Vavuniya his sponsor would not have forfeited herpass, yet an inquiry was necessary before the sponsor could bereleased from her guarantee and her pass returned. In any event,the fact that the relevant circulars and memoranda governing all thesematters were unpublished and inaccessible to the petitioner was itselfan unacceptabe restriction. Laws and regulations affecting fundamentalrights must necessarily be published and accessible to citizens.
In my view, the restrictions on the freedom to travel were comparableto the procedures often applicable to obtaining a visa for travel toa foreign country, with no assurance that permission would be granted.Cumulatively, they were significant restrictions on the petitioner’s freedomof movement and residence guaranteed by Article 14 (1) (h).
I must add that Article 27.(12) requires that “the State" – and thatincludes the Judiciary – “shall recongize and protect the family asthe basic unit of society”. It is true that the directive principles ofState policy do not confer or impose legal rights and obligations, andare not enforceable in any Court, but that does not mean that theJudiciary is bound to ignore them. In considering the nature of therestrictions placed on the petitioner’s right to travel to Colombo, it isrelevant that they tended to weaken rather than to protect the familyand family ties. Besides, they did not facilitate the full realization ofhis fundamental rights and freedoms (as contemplated by Article 27(2) (a)..
A further question is whether, having regard to the then prevailingarmed conflict, the freedom of movement was impliedly subject to suchrestrictions. It has been observed that the freedom of speech does
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Regional Camp Police Post, Vavuniya and Others (Fernando, J.)153
not extend to falsely crying, “Fire!” in a crowded theatre. An expressrestriction imposed by law or delegated legislation is not necessaryin order to ensure that the freedom of speech is not abused by suchconduct. Likewise, the freedom of movement does not give personsengaged in armed conflict with the State the liberty to move aroundas they please. There are many inherent limitations of that sort. Itrequires no express provision to conclude that the freedom of movementdoes not grant a citizen the right to enter, without consent, thepremises in which State institutions are situated or private premises. 190Such access can legitimately be controlled or regulated in variousways. However, the right of citizens to travel on public highways andto have access to public places may only be curtailed by restrictionsimposed in terms of Articles 15 (6) and 15 (7).
There is force in the respondent’s contention that the restrictionscomplained of were imposed in the interests of national security, andwere reasonably necessary for that purpose. However, Article 15 (7)required that such restrictions be imposed by a law, or by regulationsmade under the law relating to public security. Accordingly, the travelpass system constitutes a restriction not authorized by Article 15 (7). 200
I hold that the petitioner’s fundamental right under Article 14 (1)
(h) had been infringed by executive action by the application to himof the travel pass system.
In his petition the petitioner had pleaded a violation of Article 11.
The restrictions imposed were undoubtedly burdensome and incovenient,but they were not cruel, inhuman or degrading. Leave to proceed underArticle 11 was therefore refused.
The petitioner also claimed that Articles 12 (1) and 12 (2) had beeninfringed. There is evidence that the travel pass system applied notonly to those living in refugee camps in Vavuniya, but to all those 21°travelling to and from Vavuniya; and that they applied to persons ofall communites (Dias v. Secretary, Ministry of Defence is an example).Article 12 has not been infringed.
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I must now turn to the respondents’ contention that the applicationwas time-barred. It was argued that the petitioner became aware ofthe travel pass system in June, 2001, and that he should havechallenged the system within one month; and that he had acquiescedin the system, and therefore could not later challenge it. It is truethat the petitioner could have challenged the system on the firstoccasion when it was applied to him. But, each violation gives rise 220to a separate cause of action. This situation cannot be compared toa circular or scheme which purports to change an employee’s termsand conditions of service. The failure to make a prompt challengewould often preclude a subsequent challenge – on the. ground thatthe change in terms and conditions has become final. There isdistinction between that and other violations of fundamental rights. Thefailure to challenge an unlawful arrest (or detention, or torture, or denialof freedom of speech) on one occasion does not mean that the victimcan there after be subjected to subsequent violations with impunity.
I hold that the petitioner’s complaint in respect of the December travelpass was within time and was not barred by acquiescence.
As for relief, there is evidence that even before this applicationwas filed, steps were being taken to relax the travel pass system,and that it was ultimately abolished on 05. 03. 2002; perhaps by filingthis application the petitioner accelerated that process. He hassucceeded in vindicating the principle involved, and having regard toall the circumstances I consider costs and nominal compensation tobe adequate. I
I grant the petitioner a declaration that his fundamental right underArticle 14 (1) (h) has been infringed and award him compensation 240and costs in a sum of Rs. 30,000 payable by the State on or before31. 10. 2002.
J. A. N. DE SILVA, J. – I agree.
WEERASURIYA, J. – I agree.
VADIVELU v. OFFICER-IN-CHARGE, SITHAMBARAPURAM REGIONAL CAMP POLICE POST,