KUMARA AND OTHERS

Vs.

OFFICER-IN-CHARGE, POLICE STATION, KATUNAYAKE AND OTHERS

SUPREME COURT
ALUWIHARE, J.
JAYAWARDENA, J.
PERERA, J.
SC/FR/265-274/2011 WITH SC/FR/346-348/2011
NOVEMBER 1, 2017

Fundamental rights-Articles 11, 12(1), 13(1) and 14(1)(b) of the Constitution-Protest by Free Trade Zone workers against Employees' Pension Benefits Fund Bill-Reasonable apprehension of disruption of public order-Use of excessive force to quell protest by police-Proportionality

Around 4,000 to 5,000 workers employed in the Katunayake Free Trade Zone (FTZ) participated in a protest within the FTZ premises against the Employees' Pension Benefits Fund Bill that had been tabled in Parliament. Although the protest started peacefully, towards noon the situation had become tense, with the number of protestors increasing and stones being pelted between the police and the protesters. Subsequently the police fired tear gas and live ammunition on the protestors and then charged at them with batons and iron rods. The petitioner in SC FR 265/2011 was one of the protestors and had obtained a gunshot wound while trying to escape the charge of the police, which left him with permanent disabilities of a serious nature. After the charge, the police launched an attack on the factories within the FTZ- Phase 11 where some of the protesters had sought refuge, entering their premises by force, damaging property and indiscriminately attacking those within the respective premises. All the other petitioners had been assaulted by the police with iron rods, batons, iron chains and other blunt weapons during this attack. Some of these petitioners had been then taken to the Katunayake Police Station where they were held in crowded cells with other protesters, some of whom were bleeding from injuries sustained from gunshot wounds and tear gas. After several hours, the injured were taken to nearby hospitals and the others were released. The petitioners sought relief for the violation of their fundamental rights guaranteed under Articles 11, 12(1), 13(1) and 14(1)(b) of the Constitution.

Held:

1. The freedom of peaceful assembly guaranteed by Article 14(1)(b) of the Constitution extends to a peaceful protest. An assembly of persons can start off as peaceful but later take on an unlawful hue if the general behaviour of the participants leads to a reasonable apprehension that it is likely to cause a disturbance to the public peace. When that happens, it is permissible to impose such restrictions "as may be prescribed by law" inter alia "in the interests of ... public order," in terms of Article 15(7) of the Constitution.

2. It is probable that the police harboured a strong apprehension that the protestors would cause a disturbance of, and disruption to, the day to day life of the general public if they exited the FTZ. While these facts and the apprehension renders the protest unlawful, it did not give the police the right to use unbridled force to restore order. Force should only be used as a last resort and be proportionate so as to strike a balance between the right to peaceful assembly and the maintaining of public order.

3. The gunshot injuries of the victims indicated that the police opened fire on persons retreating or fleeing and that the shooting was not below the knee only, in clear violation of Police Departmental Order A 19. The use of live ammunition in such circumstances and attacking the protestors with weapons such as iron rods and nail studded poles were extreme in nature and by no means proportionate. This was an unwarranted move on the part of the police and not a permissible restriction in terms of Article 14(1)(b).

4. The subsequent attack by the police on the factories to which the protesters had fled seeking refuge was intended to punish and intimidate the protesters in order to quell any further protest. The excessive use of force in charging at t