v.GUNATILAKE AND OTHERS
WANASUNDERA. J.. C0LIN-TH0M6. J. AND ATUKORALE. J.
S.C. APPLICATION No. 59/85.
JULY 24 AND 25, 1985.
Fundamental Rights-Articles 13(1), 13(2) and 13(4) of the Constitution-Spreadingfalse rumours and statements-Regulations 19(1) and 19(2) of the EmergencyRegulations-Warrant of detention.
The complaint was that the petitioner was taken into Police custody on 22.5.85 andwas produced before the Magistrate. Colombo Fort on 25.6.1985-three days laterthan the 30 days after his arrest allowed by the proviso to Regulation 19(1). On23.5.1985 the I.G.P. acting under Regulation 19(2) authorised the officer-in-charge,Police Station, Slave Island to detain the petitioner who had committed offences incontravention of Regulation 26.
The fundamental right referred to in Article 13 (2) of the Constitution has to be read withthe proviso to regulation 19(1) of the Emergency Regulations. As the petitioner wasproduced three days after the specified period, the belated production of the petitionerwas a violation of Article 13(2) of the Constitution.
Per Colin-Thome, J.:
"Article 13(2) embodies a salutary principle safeguarding the life and liberty of thesubject and must be exactly complied with by the executive.'
Cases referred to:
Edirisuriyav. Navaratnam- 1 Sri LR 100, 118.
Yasapalitha Nanayakkara v. Henry Perera and Others-S.C. ApplicationNo. 19/85-S.C. minutes of 9.8.85.
APPLICATION for infringement of Fundamental Rights.
Nimal Senanayake, P.C. with Kithsiri Gunaratne, Desmond Fernando, A. B.Dissanayake, Sanath Jayatilleke and A. D. Telespha for petitioner.
Sunil de Silva, Addl. S.G. with Rohan Jayatilleke. S.S C.. K. Dharmawardene. S.C. andNihara Rodrigo, S.C. for respondents.
Cur. adv. vult.
November 22, 1985.
The petitioner filed this application on the 11th June 1985, underArticle 126 of the Constitution, praying for-
leave to proceed in the first instance;
an order on the Officer-in-charge of the Slave Island PoliceStation into whose custody the petitioner was delivered foradequate opportunity to prepare legal documents andaffidavits ;
an order of immediate release or custody in premises affordingthe petitioner proper bedding and surroundings conducive tohealth and comfort;
a declaration that the petitioner's fundamental rights had beenviolated;
compensation in a sum of Rs. 250,000 for costs and otherrelief.
At the outset the application under paragraphs (a) and (b) wasgranted, and an order made that the detenu be kept in custody inmore congenial surroundings at the Slave Island Police Station. Anindictment has now been served on the petitioner charging him withcommitting offences under the Emergency Regulations and he hasbeen enlarged on bail by the High Court Judge of Colombo with theconsent of the Attorney-General pending his trial.
The petitioner does not state in his petition with sufficientparticularity which of the petitioner's fundamental rights have beenviolated. Learned President's Counsel appearing for the petitioner hassubmitted that the petitioner's fundamental rights under Articles13(1), 13(2) and 13 (4) of the Constitution have been violated.
The material before this Court consists only of affidavits, counter1affidavits and certified documents.
The petitioner avers in his petition and affidavit that on the 22ndMay 1985 he was arrested at his home in Kalmunai by de Crusz,Assistant Superintendent of Police, Kalmunai, the 3rd respondent.The petitioner states that de Crusz did not inform him of the reasonwhy he was being taken into custody. He was only told by de Cruszthat H. L. Piysena, Co-ordinating Officer, the 2nd respondent, wantedthe petitioner brought to the Batticaloa Police Station. He was kept atthe Batticaloa Police Station that night and taken to Colombo the nextday. On the 24th May his statement was recorded at the Criminal
Investigation Department Office in Colombo and he was informed thatan investigation was being made into an allegation that he wasspreading false information and bringing the Government intodisrepute. Thereafter the petitioner was kept in custody at the SlaveIsland Police Station.
The petitioner's wife has stated in her affidavit that she was presentwhen de Crusz took her husband away on the 22nd May. De Crusztold her husband that Piyasena wanted her husband brought to theBatticaloa Police Station. De Crusz did not state any reason why herhusband was being taken into custody.
De Crusz in his counter affidavit states that on the 22nd May he. took the petitioner into custody. He informed the petitioner in thevehicle in which he was taking him that he was being arrested forcommunicating or spreading rumours or false statements.
Kumarasamy Krishnadasan, Headquarters Inspector of theBatticaloa Police Station, the 4th respondent, has stated in hisaffidavit that on the 22nd May de Crusz brought the petitioner incustody and handed him over to Krishnadasan to have him detained.The petitioner did not complain about the manner of his arrest.
The petitioner in his second affidavit, dated the 2nd July 1985, hasaverred that he has been on cordial terms with the police officers of. the Kalmunai and Batticaloa Police Stations and with the co-ordinating. officer Mr. Piyasena after he assumed duties in April 1985.
Under Article 13(1) of the Constitution "Any person arrested shallbe informed of the reason for his arrest". On the material placedbefore this Court by way of affidavit and counter affidavit it is notpossible to come to a positive finding that the petitioner was notinformed of the reason for his arrest.
Learned President's Counsel complained that the petitioner hadbeen produced by the police before the Magistrate, Colombo Fort, onthe 25th June, 1985 three days later than thirty days after his arrestcontravening the proviso to Regulation 19(1).
Regulation 19(1) and 1 9(2) of the Emergency Regulations in forcestates:
"19. (1) The provisions of section 36, 37 and 38 of the Code of
Criminal Procedure Act, No. 15 of 1979, shall not apply in relation
to persons arrested under Regulation 18.
Provided that where any person has been arrested and detainedunder the provisions of regulation 18 of these regulations, suchperson shall be produced before any Magistrate within a reasonabletime, having regard to the circumstances of each case, and in anyevent, not later than thirty days after such arrest.
The production of any person in conformity with the provisions ofthese regulations shall not affect the detention of such person underparagraph (2).
(2) Any person detained in pursuance of the provisions ofregulation 18 in a place authorized by the Inspector-General ofPolice may be so detained for a period not exceeding ninety daysreckoned from the date of his arrest under that regulation, and shallat the end of that period be released by the Officer-in-charge of thatplace unless such person has been produced by such officer beforethe expiry of that period before a court of competent jurisdiction."
While the effect of Regulation 18 in combination with Regulation 1 9does not require a judicial order in regard to the duration of thedetention and the place of detention, yet the requirement forproduction of an arrested person before a Magistrate remains underthe proviso to Regulation 19(1) "to ensure the safety and protectionof an arrested person," per Wanasundera, J. in Edirisuriya v.Navaratnam (1). However the arrested person "shall be producedbefore any Magistrate within a reasonable time having regard to thecircumstances of each case, and in any event, not later than thirtydays after such arrest".
Article 13(2) of the Constitution states that-
"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."
Procedure "established by law," for the present purpose iscontained in the proviso to Regulation 19(1) of the EmergencyRegulations. In our view Article 13 subsection (2) of the Constitution •incorporates by reference the substance of what is contained in this
proviso. Accordingly the fundamental right referred to in Article 13(2)has to be read with Regulation 19(1) proviso, of the EmergencyRegulations. In the instant case the petitioner was produced beforethe Magistrate, Colombo Fort, three days after the specified period.The belated production of the petitioner would therefore amount toviolation of Article 13(2) of the Constitution.
Another submission of learned President's Counsel for the petitioneris that the continued detention of the petitioner from the date of hisarrest to the time of filing his petition on the 11th June 1985 wasillegal as none of the affidavits of the respondents aver that thepetitioner was being detained pending further investigation into anyoffences under the Emergency Regulations alleged to have beencommitted by him.'
The relevant portion of Article 13(4) of the Constitution states that-"The arrest, holding in custody, detention or other deprivation ofpersonal liberty of a person, pending investigation or trial shall notconstitute punishment."
Under Article 15(7) of the Constitution "The exercise and operationof all the fundamental rights declared and recognised by Articles 12,13(1), 13(2) and 14 shall be subject to such restrictions as may beprescribed by law in the interests of national security." For thepurposes of this paragraph "law" includes regulations made under thelaw for the time being relating to public security. Article 13(4) is notsubject to any restrictions prescribed by law in the interests of nationalsecurity.
Learned President's Counsel has drawn attention to a passage in myjudgment in Yasapalitha Nanayakkara v. Henry Perera and Others (2)decided on the 9th August 1985, at page 11 which states:
"It is manifest, therefore, that the detention of a person arrestedwithout 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."
On the 23rd May 1985 the Inspector-General of Police by virtue ofthe powers vested in him under Regulation 19(2) authorised theOfficer-in-charge, Police Station, Slave Island, to detain the petitioner"who had committed offences in contravention of Regulation 26" ofGazette Extraordinary No. 349/21 of 18.5.1985. The reason for thedetention was stated in this order.
The petitioner has not complied with Regulation 65(1) (a) of theSupreme Court Rules as he has failed to particularize in his petition thefundamental rights which he alleges have been violated. This may haveresulted in the omission in the affidavits of the respondents to statethat the petitioner was detained for further investigation.
However, when the petitioner was produced before the Magistrate,Colombo Fort, on the 25th June, 1985, the Magistrate was informedby Assistant Superintendent of Police, Seneviratne, who produced thepetitioner in Court, that the Criminal Investigation Department wasmaking inquiries regarding the suspect and that relevant extracts wereforwarded to the Attorney-General. This statement was recorded bythe Magistrate (vide certified extract of record in M.C. Case No. B.R.3053, marked 1R2). A report dated 25th June 1985 by InspectorG.R.D. Livera, C.I.D. was also filed in Court the same day stating thatthe C.I.D. were conducting investigations regarding the suspect and,that the relevant extracts have been submitted to the Hon.Attorney-General for instructions. The submission of LearnedPresident's Counsel that the detention of the petitioner was not forfurther investigation therefore fails.
We have already held that the non-production of the petitioner, eventhough the delay is only a period of three days, would still constitute aviolation of his fundamental right contained in Article 13(2) of theConstitution. Article 13(2) embodies a salutary principle safeguardingthe life and the liberty of the subject and must be exactly compliedwith by the executive. In our view this provision cannot be overlookedor dismissed as of little consequence or as a minor matter. Tovindicate this principle which is of such significance, we would directthat the petitioner be paid a sum of Rs. 5,000 for the violation of hisconstitutional right. We direct that this sum be paid by the State. Thepetitioner would also be entitled to the costs of this application.
WANASUNDERA, J.-l agree.
ATUKORALE, J.-l agree.
State ordered to pay compensation.
NALLANAYAGAM v. GUNATILAKE AND OTHERS