Bulletin article by the Revolutionary Communist League, Sri Lankan section of the ICFI.
The submissions made by the Deputy Solicitor General of the government of Sri Lanka at the judicial proceedings of the case filed by the Revolutionary Communist League in the Supreme Court emphatically revealed the preparations and the thinking of the ruling class and among its top bureaucrats towards the establishment of a police state.
This case was filed in the name of the three members of the RCL arrested by the police in June 1986, while they were organizing and attending a public meeting of the party.
The three persons, Brutan Perera, Wije Dias and Ruman Perera, were detained in the police station for 19 days and then kept in the remand prison for another 23 days before they were released on bail.
The police and the attorney general, who were the respondents in this case, first claimed that the three persons were detained “for the purpose of further investigation” into the alleged offenses committed under Regulations 26 and 33 of the Emergency Law. Under these regulations, it is an offense to incite hatred against the government and the president and to have subversive literature in possession.
The solicitors for the RCL demonstrated to the court that the only material taken to custody at the time of the arrest and produced before the court by the police—one copy of a pamphlet published by the RCL entitled, Defend the Right to Free Education; Build the Mass Movement to Defeat the White Paper on Education, and another copy of a pamphlet published by the Ceylon Teachers Union—did not violate any of the said regulations.
Instead, they emphasized the RCL was legally entitled under the Fundamental Rights enshrined in the Constitution to publish and to have in possession the cited literature.
It was also pointed out that it was a clear indication of the police’s high-handedness to arrest three persons on the charge of having in possession two copies of two pamphlets, when one of them, Wije Dias, had clearly admitted that it was he who carried that literature with him, to be used as source material in his speech at the meeting.
Mr. D.L. Abeykoon, the senior lawyer for the RCL, said that there could not have arisen a need to detain the three persons “for the purpose of further investigation” under a special detention order from the superintendent of police of the region, as the cited publications were legally put out long a time before these arrests.
In the case of the RCL pamphlet, the date of publication was February 5, 1982 and in the case of the Teachers Union pamphlet, the date was January 1986. He also said that no investigation was actually made during the period of detention or after that and no record of such investigation was produced before the court by the police.
“That clearly proves,” he said, “that there existed no reasonable grounds accepted by law to arrest and detain these persons and therefore the arrest is illegal and is a violation of the Fundamental Rights.”
About the shift of the “ground for arrest” made by the attorney general at the late stages of the judicial proceedings, bringing in the claim of a violation of Regulation 28 of the Emergency Law, Mr. Abeykoon pointed out that it was never mentioned in the Detention Order issued by the S.P. He brought to the attention of the court that it is the established practice and a legal requirement to give the correct reason in an order of detention, and if not, the detention becomes a violation of Fundamental Rights.
“In any event,” he said, “Regulation 28 of the Emergency Law is not compatible with the Fundamental Rights of free speech and expression established in the Constitution. This emergency regulation states that no person without the permission of the inspector general of police can affix or distribute any posters or handbills or leaflets. It is no simple restriction on the Fundamental Right but amounts to a prohibition.”
He also drew the attention of the court to Article 155(2) of the Constitution which states, “The regulations passed under the Public Security Act can have the legal effect of overriding, amending or suspending the operation of any law, except the provisions of the Constitution… Thus,” he said, “Regulation 28 is ultra-vires of Article 1H(1) of the Constitution.”
Mr. C.V. Vivekanandan, who also appeared for the RCL, went further to state that the detention of any person on any charge for more than 24 hours is illegal under the rights established by the Constitution.
He argued that Articles 13(1) and (2) of the Constitution speaks of a procedure established by law in dealing with arrests and detentions. This procedure is none other than the Criminal Procedure Code. Sections 36 and 37 of this code set out how an arrested person should be dealt with and states that the person arrested should not be detained in custody, without producing him before a magistrate, for more than 24 hours. In that case, what a magistrate can do is either to release the arrested person or to remand him under custody. According to that procedure, the detention by the police for more than 24 hours is illegal.
Mr. Vivekanandan said, “These sections of the Criminal Procedure Code are incorporated in the Constitution and they have acquired the character of a constitutional right enjoyed by everyone. Emergency Regulation 19(1) suspends the operation of Sections 36 and 37 of the Criminal Procedure Code and this cannot be done because these sections have acquired a constitutional character. Hence Regulation 19(1) of the Public Security Act is ultra-vires of the Constitution.”
He also cited a judgment given earlier in the Supreme Court where the judge stated that Article 13(1) of the Constitution is in a truncated form due to the said Emergency Regulation. Mr. Vivekanandan argued that it cannot be so with the Constitution, and called upon the court to decide that Regulation 19(1) of the Emergency Law be declared ultra-vires.
He also said that the petitioner Ruman Perera was in the Chilaw hospital and was never produced before the magistrate when the remand order on him was secured by the police, and this also is a violation of the law.
Justice Alwis intervened and asked whether it was not for the benefit of the petitioner, who was sick, that he was not removed from the hospital to be produced before the magistrate.
Mr. Vivekanandan clarified that Ruman Perera was removed to the Negambo Remand Prison, situated about 25 kilometers away from the Chilaw hospital, as soon as the remand order was issued, without giving any consideration to his health conditions. He also said that if the person to be remanded cannot be taken to the magistrate for health reasons, although it was clear that it was not the situation in this case, then the magistrate should attend the hospital and see the person before making his order. “This is important,” he said, “as it is revealed in a commission of inquiry that in Jaffna a dead body has been remanded by a magistrate as that body was brought by the police in a closed jeep and not produced before the magistrate.”
These submissions by the RCL solicitors were in sharp contrast to the LSSP and the CP leaders who never raised these issues in any form. The RCL brought to the attention of the Supreme Court, for the first time, the arbitrary nature of the Emergency Regulations imposed over the masses continuously for nearly four years since July 1983.
The criminal nature of the silence over this matter is twice exposed when one considers the fact that most of the leaders of these two class collaborationist parties are professional lawyers who never fail to attend courts for their financial gains. It is only with the tacit approval and support of these leaders that the UNP government could rule, hunting their own members in the hundreds and detaining thousands of Tamil youth in torture camps without trial for many years under emergency.
Following the submissions of the petitioners’ counsels, Deputy Solicitor General started his deliberations to justify the actions of the police: “The arrest of the three petitioners was made under Regulation 18(1) of the Public Security Act where the police is empowered to arrest persons without a warrant,” he said. “One petitioner was in possession of some literature cited in this case and the other has admitted that he was the organizer of the meeting and the distributor of a leaflet.”
Chief Justice from the bench: “But the third person was only attending a public meeting. What was the grounds for his arrest?”
Deputy Solicitor General: “By his presence there, the police could form a reasonable suspicion. Therefore for the purpose of investigation he was arrested and detained.”
CJ: “Then why did not they arrest the other 30 people at the meeting? Is it just because Ruman Perera happened to be the brother of Brutan Perera, that the police suspected him?”
DSG: “My lord, this sort of arrest can and has taken place in this country.
“Section 5 of the Public Security Act gives the Executive President the power to make the Emergency Regulations, and in Section 7, it states that they cannot be challenged in judicial court.”
CJ: “But Article 155 of the Constitution says the constitutionality of any law can be reviewed by the court. What do you say about that?”
DSG: “Section 5 of the Constitution says the president can make the regulations which in his opinion is deemed necessary for the preservation of public order. It is subjected to the subjective test of the president.”
CJ: ‘‘But, if the regulation is not related only for the purpose of security and law and order, it can stultify any opposition. The opposition will be completely shut up.”
DSG: “Under certain conditions even prohibition of Fundamental Rights can be imposed by the president.”
CJ: “But Article 155 of the Constitution says ‘except the constitutional provisions’.”
DSG: “In the term ‘restriction’ a certain prohibition can be included. Regulation 28 of the Emergency Law is not total prohibition, but only some control.”
Justice Alwis: “But the control is by the police officer. The power of discretion is with him. Is it not?”
CJ: “If someone wants to publish some innocent leaflet, why should he go to the Inspector General of Police (IGP) for that? It is unnecessary hardship on the people.”
DSG: “We cannot regulate law, taking into consideration the hardships to the people. Sometimes in the past, even obituary notices are being used in this country to give signal to disorder and rebellion. That happened in 1971. This is why the widest power is given to the police by Regulation 28.”
CJ: “You cannot allow the Fundamental Rights to be taken away, just because of such a single instance in the past. Again, for instance, in the case of a completely innocent handbill, the IGP can see something behind it and say that it is illegal. On what basis is the IGP going to decide or use his discretion? The basis for an objective test is not being given in Regulation 28. Yesterday you said that some leaflets will not come under that regulation. If so, I can understand it. But now you extend your argument to absurd ends.”
DSG: “Regulation 28 says that all leaflets and handbills should go through the filter: the police. Without that it is absolutely prohibited.”
CJ: “Fundamental Rights of freedom of speech and expression become illusory in such a situation.”
Justice Wanasundara: “How can a police officer be given the power of discretion to interpret the Fundamental Rights?”
CJ: “Do the newspapers also come under this regulation?”
DSG: “No, my lord, they do not. There are other provisions for that.”
CJ: “So, the big companies can publish what they want in the form of newspapers, without going to the IGP. Is it only the poor man who does not have that much money and uses a handbill for that purpose only being dealt with here? Is it not discriminative, which violates the article in the Constitution referring to the equality before law?”
Justice Alwis: “Why not the purpose—the objective test—be incorporated in this Regulation 28, and say such and such leaflets should have the permission of the IGP?”
DSG: “Then, my lord, the publisher or the distributor has to decide it by himself. This cannot be allowed.”
Justice Seneviratna: “But Regulation 28 as it is does not limit the power of the IGP in any way on this matter. There has to be some guidelines for him to act.”
CJ: “What happens when an ultrasensitive police officer sees some vile motive behind an innocent leaflet? The Fundamental Rights are sacred rights. As long as they exist in the Constitution, they should not be violated.”
DSG: “The police officer must be given the power to decide. Otherwise, the whole machinery will have to be changed.”
CJ: “But if the regulations allow a police officer to act according to his own whims and fancies, a citizen’s liberty is at stake. For instance, when a police officer sees someone carrying a handbill printed in Tamil, he would imagine that there exists some vile idea behind it. Can that person be allowed to get arrested in that case? Can that be taken as an act of the police officer ‘in good faith’? Regulation 28 as it stands now can lead to an infringement of the Fundamental Rights.
“In contrast to the situation in India, the Sri Lankan Constitution says that the Fundamental Rights cannot be suspended. Even the preventive measures on the part of the police officers should not become prohibitive.”
At this point, the DSG wound up his submissions.
The court reserved the judgment to be delivered on a future date.
The proceedings of this case, which took four days in the Supreme Court before a bench of five judges, was reprinted only in one of the capitalist papers and that also being an English daily. The Stalinist paper, Aththa, was forced to publish some extracts. But they were careful to pick and choose only those portions which gave the impression of an all-powerfulness of the bourgeois state. They also very thoughtfully made sure that the name of the Revolutionary Communist League never appeared in these reprintings.
The LSSP leadership, along with their Stalinist counterparts, who stayed tight-lipped during the whole period of the international and national campaigns for the release of the RCL members, staged a new provocation against the RCL while these court proceedings were taking place. They physically attacked and called the police on Young Socialist members who were distributing a leaflet to the delegates who attended the conference of the LSSP youth organization, demanding they force their leaders to break relations with the UNP government. By that gesture, they once again guaranteed their support to the UNP government and the state in their attempt to take away the Fundamental Rights of the working class and the youth.
Now the RCL and the YS have launched a petition campaign throughout the working class and the youth condemning the act of the LSSP leaders and demanding that they remove from their ranks the provocateurs who participated in that anti-working class incident.