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In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

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In the Supreme Court of the Democratic Socialist Republic of Sri Lanka IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application under Article 126 of the Constitution S.C. APPLICATION NO. 470/96 (FR) Palihenage Don Saranapala, Batapotha, Thalangama South. Petitioner Vs. 1. S.A.D.B.R. Solanga Arachchi, Senior Superintendent of Police, Police Headquarters, Colombo 1. 2. L.V.P. Samarakoon, Senior Superintendt of Police, Police Headquarters, Colombo 1. 3. Lucky Pieris, Superintendent of Police, Police Headquarters, Colombo 1. 4. D.M.I.B. Dissanayake, Deputy Inspector General of Police, Police Headquarters, Colombo 1. 5. W.B. Rajaguru, Inspector General of Police, Police Headquarters, Colombo 1 6. Anurudha Ratwatte, Deputy Minister of Defence, Ministry of Defence, Colombo 1. 7.Hon Attorney General, Attorney General’s Department, Hulftsdorp, Colombo 12. Respondents. BEFORE: AMERASINGHE, J., WIJETUNGA, J. AND GUNAWARDANA, J COUNSEL: D. W. Abeykoon, PC with Nimal Ranawaka and Chandrika Morawaka for the petitioner. Nihal Jayasinghe, Deputy Solicitor-General with N. Pulle, SC for the respondents ARGUED ON: 18.06.1997 DECIDED ON: 17.02.1997. JUNE 18, 1997 Fundamental Rights - Freedom of speech, expression and peaceful assembly - Right to equality - May Day processions and meetings - Articles 12 (1), 12 (2), 14 (1) (a) and 14 (1) (b) of the Constitution - Permitted restriction of rights - National security and public order - Article 15 (7) of the Constitution - Section 77 (3) of the Police Ordinance. On 25. 4. 1996 Deputy Inspector-General of Police (Colombo Range) the 4th respondent approved the application of the Navalanka Sama Samaja Party (NSSP) for a May Day procession and a meeting. However, on 29.4.1996, the 4th respondent informed the Secretary of the NSSP in writing that due to security reasons processions within the city of Colombo had been prohibited and that therefore the permission granted earlier stood revoked. An attempt by some supporters of the NSSP on the May Day to proceed in procession to their meeting place was stopped by the Police. Consequently, the NSSP could only hold a meeting. The matter before the Court was whether the restrictions on the NSSP were permitted by s. 77 (3) of the Police Ordinance in the interest of public order or by emergency regulations made by the President prohibiting all processions for a period of 24 hours from 30th April, 1996, in the interest of national security. Held : 1. Article 15 (7) of the Constitution permits restrictions on the rights declared and recognized by Article 14. Such restrictions must be (i) prescribed by Law (including regulations made under the law relating to public security) and (i) in the interest of national security, public order, etc. Thus, section 77 (3) of the Police Ordinance empowers the Police to prohibit a procession in the interest of public order. This power is subject to the Constitution; and measures taken to further the maintenance of public order must be unrelated to the suppression of free expression and the incidental restriction on the exercise of free expression must be no greater than is essential to the furtherance of public order. 2. The evidence before the Court did not show a security threat at May Day processions as claimed by the respondents. On the other hand other political parties including the Lanka Sama Samaja Party (LSSP) had been permitted, not only to hold meetings in public places but also to march on the streets on that day. Hence, the concern of the Police in prohibiting the NSSP procession was not the furtherance of the interest of national security or public order but the suppression of free expression by the petitioner and other members of the NSSP. In the circumstances the prohibition of the holding of a procession by the NSSP was a transgression of the petitioner's rights under Articles 14 (1) (a) and 14 (1) (b) of the Constitution. 3. In permitting other political parties to conduct processions, the respondents failed to act even-handedly in applying the provisions of section 77 (3) of the Police Ordinance and the emergency regulations and thereby violated the petitioner's fundamental rights declared by Articles 12 (1) and 12 (2) of the Constitution. Cases referred to : 1. Hague v. CIO 307 US 496, 515-516, 59 S. Ct. 954, 964, 83L Ed 1423 (1939). 2. United States v. O Brien 391 US 367, 88 S. Ct. 1673, 20 L Ed 2d 672 (1968). 3. Cox v. State of New Hampshire 312 US 569,'61 Ct. 762, 85L Ed 1049. 4. Kovacs v. Cooper, 336, US 77, 69 S. Ct. 448, 93L ED 513. 5. Poulos v. State of New Hampshire 345, US 395, 73 S. Ct. 760, 97L Ed 1105. 6. Adderly v. State of Florida 385 US 39, 97 S. Ct. 242, 171 Ed 2d 149. 7. Cox v. Louisiana 379 U. S. 536, 555, 85 S. Ct. 453, 464 13L, Ed 2d 471. 8. Walker v. City of Birmingham 388, US 307, 87 S. Ct. 1824, 18L, Ed 2d 1210 (1967). 9. Shuttlesworth v. City of Birmingham 394 US 147, 89 S. Ct. 935 221 Ed. 2d 162 (1969). 10. Goonewardena v. Perera (1983) 1 Sri LR 305, 317-318. 11. Joseph Perera v. The Attorney-General (1992) 1 Sri LR 199, 214, 218. APPLICATION for relief for infringement of fundamental rights.. July 17, 1997. AMERASINGHE, J. On 21.06.1996, the Court granted the petitioner leave to proceed on the basis of the alleged infringements of Article, 12 (1), 12 (2), 14 (1) (a) and 14 (1) (b) of the Constitution. The petitioner is the General Secretary of the Government United Federation of Labour and a Politburo member of the Nava Sama Samaja Party. On 15 February, 1996, the Secretary of the Nava Sama Samaja Party (NSSP) applied to the Police with regard to the holding of the 1996 May Day celebrations. On the 25th of April, 1996, the fourth respondent, who was the Deputy Inspector-General of Police (Colombo Range), respondent to the application of the Secretary of the NSSP giving the approved assembly point, the route for the procession and the meeting place : "Assembly Point - In front of Hope House, Slave Island. Route - Union Place - Dawson Street - Park Road - Baybrooke Street - Dharmapala Mawatha - Turn right at colour lights to Sir James Peiris Mawatha. Meeting Place - De Mel Park." However, in his letter dated 29th April, 1996, the fourth respondent wrote to the Secretary of the NSSP stating that, due to security reasons, processions within the city of Colombo had been prohibited and that therefore the permission granted earlier stood revoked. Notwithstanding the revocation, on May Day, 1996, some supporters of NSSP set off at about 1.15 pm from an assembly point in front of Hope House, Slave Island, and proceeded along Union Place to Dawson Street where they were stopped by the Police. The first respondent, Senior Superintendent, Solanga Arachchi, after consulting the fourth respondent - Deputy Inspector-General of Police Dissanayake - on his radio transmitter, permitted the leader of the NSSP, Dr. Wickramabahu Karunaratne, and three other persons (not including the petitioner) to proceed along the route approved earlier, accompanied by the first respondent. Dr. Karunaratne and the other accompanying persons eventually reached De Mel Park at about 2 p.m. and proceeded to hold a public meeting of the NSSP. In his written submissions, learned counsel for the respondents supported the assertion in the affidavit of the first respondent that "there is no fundamental right to use a public highway for a demonstration". Accordingly, the Police seem to have assumed that section 77 (3) of the Police Ordinance gives the Police unlimited power to prohibit the taking out of processions or to impose conditions upon the holding of processions. Section 77 (3) states : "Notwithstanding anything in any other law, an officer of police of a rank not below the grade of Assistant Superintendent, if he considers it expedient so to do in the interests of the preservation of public order, may give directions (whether orally or in writing) prohibiting the taking out of any procession, or imposing upon the person or persons organizing or taking part in the procession such conditions as appear to him to be necessary, including conditions prohibiting or restricting the display of flags, banners or emblems". There appears to be a misunderstanding : The Constitution is the supreme law and the powers conferred by section 77 (3) of the Police Ordinance are subject to the provisions of the Constitution. Article 14 (1) (a) of the Constitution declares that every citizen is entitled to the freedom of speech and expression including publication. Article 14 (1) (b) declares that every citizen is entitled to the freedom of peaceful assembly. The petitioner complains that his fundamental rights guaranteed by Articles 14 (1) (a) and (b) had been violated by the refusal of the police to allow him and the members of his political party to march on the streets on May Day. While I do not accept the view that an apparently limitless variety of conduct can be labelled "speech" whenever the person engaging in the conduct intends thereby to express an idea, I do, however, accept the fact that marching, parading and picketing on the streets and holding meetings in parks and other public places may constitute methods of expression entitled to the protection of the freedoms declared and recognized in Articles 14 (1) (a) and (b) of the Constitution. Streets and parks and public places are held in trust for the use of the public and have been customarily used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets, parks and public places is a part of the privileges, immunities, rights and liberties of citizens : See Hague v.
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