v.DELGODA AND OTHERS
WANASUNDERA, J. COLIN-THOM&, J. AND ATUKORALE, J.
S.C. APPLICATION No. 95/85.
OCTOBER 18, 1985.
Fundamental Rights-Articles 12(1).13(1).13(2).13(4) of the
Constitution-Jurisdiction-Emergency Regulations 19. 20, 59, 64.
Jurisdiction based on the geographical location of the place where the offence wascommitted has given way under the Emergency Regulations to the place where thesuspect is being kept for the time being.
Article 13(4) clearly implies that detention does not constitute a punishment providedthe detention is for further investigation or a trial of the person detained is pending. Atthe end of the investigations if no trial of the person detained is contemplated then thatperson should be released from detention without waiting for the duration of the limit of90 days to be over.
When a trial of the detenu is contemplated at the end of the investigation his detentionin police custody must be converted to Fiscal custody in terms of Regulation 19 (3) readwith Regulations 20 and 64 and Article 13(4) of the Constitution. Under Regulation 20any person produced before a Magistrate under the provisions of Regulation 19 (3) shallremain in Fiscal custody for a continuous period of three months and shall not bereleased at any time prior to the expiry of such period, except in accordance with theprovisions of Regulation 64.
Once the indictment is filed the detenu will be remanded by the High Court until theconclusion of the trial under the provisions of Regulation 59(1) and 59(2).
Remand for an offence under the Emergency Regulations is made compulsory and bailcan only be granted with the prior consent of the Attorney-General. It is as if the lawitself made such an offence non-bailable, thereby preventing a Magistrate fromconsidering the question of bail.
On the lapse of the period of three months, the Magistrate is empowered, except in thecase of violation of Regulation 24(1 )(b). to release such a person on bail, unless theAttorney-General directs otherwise. Further, after the period of 3 months' detention,the ultimate power of release on bail is reposed in a judicial tribunal, the Court of Appeal'Which could do so in exceptional circumstances.
Case referred to:
Yasapalnha Nanayakkara v. Henry Perera-SC Appeal No 19/85-SC minutes of9 8.1985.
APPLICATION for infringement of Fundamental Rights
Nimal Senanayake. P.C. with K. P. Gunaratne, S Jayatillake, Mrs. A. 8. Dissanayakeand Miss A P Thelespha for petitioner.
Sunil de Silva. Addl.S.G. with Rohan Jayatilleke. S.S C. and Nihara E. Rodrigo. S.C. forrespondents.
Cur. adv. vult.
November 22, 1985.
This application filed on 2.9.85 by the petitioner is a sequel toSupreme Court Application No. 59/85 filed on 11.6.85 by thepetitioner.
The petitioner states that on 26.7.85 he was taken from the SlaveIsland Police Station before the Magistrate, Colombo Fort, andthereafter to the Magazine Gaol, where the petitioner has been incustody since 26.7.85. He has not been produced before any JudicialOfficer after 26.7.85.
The petitioner states that his fundamental rights under Articles12(1), 13(1), 13(2) and 13(4) have been infringed by his continueddetention on or after 1.8.85.
The petitioner avers that his continuing detention is under theauthority of Emergency Regulations which are ultra vires and illegaland in any event the application of Emergency Regulations 18,19 and20 are inapplicable in the circumstances of his case.
The petitioner states further that the petitioner’s continueddetention and production on or about 26.7.85 before the Magistrate,Colombo Fort, by the 5th respondent is illegal and makes and rendersthe provisions of Regulations 19 and 20 inapplicable to the petitioner.The detention of the petitioner is consequently illegal and thepetitioner’s fundamental rights aforesaid are being violated on eachand every day of the continuing detention by the 1st and 5th•respondents.
The petitioner prays-
for an order on the 1 st respondent and any other officer of Stateto whom the 1st respondent may deliver custody of thepetitioner to release the petitioner forthwith from custody;
for a declaration that the petitioner's fundamental rights havebeen violated ;
for compensation in a sum of Rs. 250,000;
for costs and other further relief as seem meet to this court.
It has been brought to our notice that on 30.7.85 an indictmentcharging the petitioner with committing offences under theEmergency Regulations was filed in the High Court of Batticaloa.Thereafter, the Attorney-General has designated the High Court ofColombo as the court where the trial of the petitioner will take placeand accordingly the indictment was filed in the High Court of Colomboon 24.9.85. On the same day the Judge of the High Court, Colombo,enlarged the petitioner on bail with the consent of theAttorney-General. The trial is to take place on 8.1.86.
The Inspector-General of Police, the 4th respondent, has stated inhis affidavit that on or about the 25th July 1985 he was advised thatthe investigations had been concluded and that the Attorney-Generalhas decided that there was sufficient material to indict the petitioneron charges of contravening provisions of the Emergency Regulations.
Accordingly the petitioner was produced on 26.7.85 in theMagistrate's Court, Colombo Fort, in terms of Regulation 19(2) of theEmergency Regulations. The Magistrate made order under Regulation1 9(3) remanding the petitioner till 20th September, 1985. A copy ofthe warrant of detention was produced marked 1 R1. According to theCommissioner of Prisons, the 1st respondent, since 26.7.85 on theorder of the Magistrate's Court, the petitioner has been detained inthe custody of the Fiscal in a prison established under the PrisonsOrdinance.
Learned President's Counsel for the petitioner submitted that thewarrant of detention marked 1 R1 was not issued by a Court of"competent jurisdiction" under Regulation 19(3). He stated that thecourt of competent jurisdiction was the High Court or Magistrate'sCourt having jurisdiction in Kalmunai where the alleged offences aresaid to have been committed. He further submitted that underRegulation 19(2) and 19(3) a competent court cannot be the courtcontemplated in Regulation 57(1).
It is now necessary to examine the relevant regulations
19(2) Any person detained in pursuance of the provisions ofregulation 18 in a place authorized by the Inspector-Generalof Police may be so detained for a period not exceedingninety days reckoned from the date of his arrest under thatregulation, and shall at the end of that period be released bythe officer in charge of that place unless such person hasbeen produced by such officer before the expiry of thatperiod before a court of competent jurisdiction.
Where a person who has been arrested and detained inpursuance of the provisions of regulation 18 is produced bythe officer referred to in paragraph (2) before a court ofcompetent jurisdiction, such court shall order that suchperson be detained in the custody of the Fiscal in a prisonestablished under the Prisons Ordinance.
20. The provisions of section 11 5 of the Code of CriminalProcedure Act, No. 15 of 1979, shall not apply in relation toany person who is produced before a Magistrate under theprovisions of regulation 19(3) or appears before a Magistratein any other manner and is detained or remanded in thecustody of the Fiscal in any prison in respect of beingsuspected or accused of any offence under any emergencyregulation. Such person shall remain in such custody for acontinuous period of three months and shall not be releasedat any time prior to the expiry of such period, except inaccordance with the provisions of regulation 64.
Regulation 57(1) reads as follows
57(1) Save as otherwise herein provided and notwithstanding anyother written law the proceedings in respect of an offencealleged to have been committed by a person under anyemergency regulation may be taken before the appropriatecourt in Sri Lanka having jurisdiction over the place wherethat person is for the time being.
Under section 9 of the Code of Criminal Procedure Act, No. 15 of1979, the criminal summary jurisdiction of Magistrates' Courtsextends to offences committed wholly or in part within its localjurisdiction. However, under Regulation 57(1) of the EmergencyRegulations the appropriate court is the court having jurisdiction overthe place where the suspect is for the time being.
The geographical location of the place where the offence has beencommitted under the ordinary law has given way under the EmergencyRegulations to the place where the suspect is being kept for the timebeing. The reason for this change of venue is in the interests ofnational security.
Under section 30 of the Judicature Act, No. 1 of 1978, aMagistrate's Court could be vested with the power and jurisdiction toremand a suspect. A reading of Regulations 19(2), 19(3), 20,57(1)and 64 of the Emergency Regulations makes it clear that the courtcontemplated is the Magistrate's Court.
The phrase "a court of competent jurisdiction” has to be read withArticle 13(2) of the Constitution which reads:
"Every person held in custody, detained or otherwise deprived ofpersonal liberty shall be brought before the judge of the nearestcompetent court according to procedure established by law, andshall not be further held in custody, detained or deprived of personalliberty except upon and in terms of the order of such judge made inaccordance with procedure established by law."
As the petitioner was being kept at all times relevant to theMagistrate's order at the Slave Island Police Station the nearest courthaving jurisdiction over such place was the Magistrate's Court,Colombo Fort. We hold therefore, that the order of the Magistrate,Colombo Fort, marked 1 R1, has been lawfully made by a Magistratehaving jurisdiction and that the petitioner was in lawful custody at thetime of filing of this application on 02.09.85.
Learned President's Counsel also submitted that there is no clearevidence when the investigations were completed. He conceded thatdetention pending trial is not punishment under Article 13(4) of theConstitution and hence a law or regulation authorising detentionpending trial is permissible. He submitted, that there was noregulation authorising detention pending trial. Learned counsel alsosubmitted that there was no material before the Magistrate that therewas a trial pending when he made his order of detention on the 26thJuly, 1985. He added that the authority for detaining a personpending trial contemplated in Article 13 (4) cannot be any other thanthe tribunal before which inquiry or trial is pending. All thesesubmissions were collectively made in order to urge that the warrantof detention issued on the 26th July 1 985 was illegal and that thecontinuing detention of the petitioner was violative of his fundamentalrights.
The Inspector-General of Police has stated in his affidavit that on orabout the 25th July 1985 he was advised that the investigations hadbeen concluded and that the Attorney-General had decided that therewas sufficient material to indict the petitioner on charges ofcontravening provisions of the Emergency Regulations. Though thereis prima facie material indicating when the investigations wereconcluded, investigations are however in law not concluded themoment the police are of the view that no further statements need tobe recorded. Investigations will continue until the Attorney-General issatisfied that no further investigations are necessary. This is so evenunder the ordinary law. Under section 397 of the Code of CriminalProcedure Act, No. 15 of 1979, the Attorney-General may giveinstructions to a Magistrate with regard to further investigations.
The relevant portion of Article 13(4) of the Constitution states;
"The arrest, holding in custody, detention or other deprivation ofpersonal liberty of a person, pending investigation or trial shall notconstitute punishment.”
Article 13(4) clearly implies that detention does not constitute apunishment provided the detention is for further investigation or a trialof the person detained is pending. At the end of investigations if notrial of a person is contemplated then that person should be releasedfrom detention without waiting for the duration of ninety days to beover. In Yasapalitha Nanayakkara v. Henry Perera et al a trial of thesuspect was never contemplated. That is why the judgment stated atpage 11:
"It is manifest, therefore, that the detention of a person arrestedwithout a warrant under Regulation 18 can be justified in law only ifthe detention is for further investigation. It would be unlawful todetain such a person for an unspecified and unknown purpose asthis would be an infringement of Article 13(4). It necessarily flowsfrom this that no sooner the further investigation is concluded thesuspect is entitled to his release from detention without waiting forthe duration of ninety days to be over."
When a trial of the detenu is contemplated at the end of theinvestigation his detention in police custody must be converted tofiscal custody in terms of Regulation 19(3) read with Regulations 20and 64. These regulations have also to be read with Article 13(4) ofthe Constitution. Under Regulation 20 any person produced before aMagistrate under the provisions of Regulation 19(3) shall remain in• Fiscal custody for a continuous period of three months and shall notbe released at any time prior to the expiry of such period, except inaccordance with the provisions of Regulation 64.
Once the indictment is filed the detenu will be remanded by the HighCourt until the conclusion of the trial under the provisions ofRegulation 59(1) and 59(2).
Regulation 64 deals with the question of bail. The relevant parts ofRegulation 64 states as follows:
64 (1) Notwithstanding anything in any other law, no Magistrateshall, except with the prior written consent of theAttorney-General, release on bail any person suspected oraccused of any offence under any emergency regulation.
In every case where a person is remanded by reason of theprovisions of paragraph (1) of this regulation, theMagistrate shall forthwith, inform the Attorney-General ofsuch remand and the circumstances relating to such case.
Where any person by reason of the provisions of paragraph(1) of this regulation, has been on remand for a continuousperiod of three months, the Magistrate shall release suchperson on bail, unless the Attorney-General directsotherwise:
Provided that where any person is suspected or accusedof having under the provisions of sub-paragraph (b) ofparagraph (1) of regulation 24 of these regulations,committed the offence of causing or attempting to causedeath, such person shall not, be released on bail until theconclusion of the trial except with the prior written consentof the Attorney-General.
(3A) The Court of Appeal may, in exceptional circumstancesrelease on bail, any person who has been on remand for aperiod exceeding three months notwithstanding theprovisions of paragraph (3) of this regulation.
Where a Magistrate has released any person on bail andthe Attorney-General intimates to the Magistrate that suchperson should not have been so released, the Magistrateshall, forthwith, take such steps as may be necessary totake such person into custody and to remand him.
We note that the above regulations provide that remand for anoffence under the Emergency Regulations is made compulsory andbail can only be granted with the prior consent of the Attorney-General.This is undoubtedly due to the emergency situation that would beprevailing. Such a provision in that context would be as if the law itselfmade such an offence non-bailable, thereby preventing a Magistratefrom considering the question of bail. In an emergency situation whichcould endanger the security of the State, the courts must concedesome latitude to the executive for a proper handling of the situation.The above provisions are however limited for a period of three months,and we do not consider this unreasonable.
On the lapse of a period of three months, it would appear thatdifferent considerations apply. Except in the case of violation ofRegulation 24(1) (b), a Magistrate is now empowered to release sucna person on bail, unless the Attorney-General directs otherwise.Further, after the period of 3 months' detention the ultimate power ofrelease on bail is found reposed in a judicial tribunal, namely the Courtof Appeal which could do so in exceptional circumstances.
On 30.09.85 the indictment was filed in the High Court of Colombodesignated by the Attorney-General to be the trial court. On the sameday the petitioner was released on bail with the consent of theAttorney-General.
We have examined photocopies of the record in M.C. Colombo FortCase No. B.R. 3053. We find from the entries in the record on the26th July 1985 that the Magistrate has examined the merits of theapplication for bail by counsel for the petitioner. He has made a fullnote of the submissions of counsel for the petitioner as well as thesubmission made by Mr.Seneviratne, A.S.P. who appeared for theprosecution. Mr. Seneviratne informed court that he had instructionsfrom the Attorney-General to move court to remand the suspect inFiscal's custody under regulation 19(5). He had also been instructedby the Attorney-General to file indictment against the suspect in theHigh Court. There was, therefore, material before the Magistrate of apending trial.
Learned President's Counsel submitted that Regulations 19 and 20are in conflict with Articles 3 and 4(d) of the Constitution Articles 3and 4(d) state:
In the Republic of Sri Lanka Sovereignty is in the People and isinalienable. Sovereignty includes the powers of government,fundamental rights and the franchise.
The Sovereignty of the People shall be exercised and enjoyed inthe following manner:
(d) the fundamental rights which are by the Constitutiondeclared and recognised shall be respected, secured andadvanced by all the organs of government, and shall not beabridged, restricted or denied, save in the manner and tothe extent hereinafter provided
These articles have to be read with Article 15(7) of the Constitution.
15(7) The exercise and operation of all the fundamental rightsdeclared and recognised by Articles 12, 13(1), 13(2) and14 shall be subject to such restrictions as may be prescribed
by law in the interests of national security, etcFor the
purposes of this paragraph 'law' includes regulations madeunder the law for the time being relating to public security.
In other words the laws relating to arrest and detention may bemodified under the Emergency Regulations in force at the time in theinterests of national security.
For the reasons stated in this judgment we hold that the petitionerhas failed to establish a contravention of any fundamental rightguaranteed under Chapter III of the Constitution. The application isdismissed but without costs.
WANASUNDERA, J.-l agree.
ATUKORALE, J.-l agree.
NALLANAYAGAM v. DELGODA AND OTHERS