CHANDRA KALYANIE PERERA AND ANOTHER v. CAPTAIN SIRIWARDENA AND OTHERS

028-SLLR-SLLR-1992-V-1-CHANDRA-KALYANIE-PERERA-AND-ANOTHER-v.-CAPTAIN-SIRIWARDENA-AND-OTHERS.pdf


CHANDRA KALYANIE PERERA AND ANOTHERv.
CAPTAIN SIRIWARDENA AND OTHERS
SUPREME COURTAMERASINGHE, J.
KULATUNGA, J. ANDWADUGODAPITIYA, J.
S.C. APPLICATION NQ. 27/9030 AND 31 JANUARY, 1991
Fundamental Rights – Illegal arrest – Illegal detention – Emergency Regulations19(2), 18, 17, 24, 26, 27 and 28 – Excessive detention under Regulation 17 -Constitution, Articles 11, 13(1) and (2).
The 1st petitioner is a married woman with three male children. She was engagedin a transport business in Badulla District and owned several vehicles. Herhusband is a processing engineer at Abu Dhabi.
The 1st petitioner was detained on 29.1.90 under Regulation 19(2} of :aEmergency Regulations for alleged offences under Regulations 24, 27 and 28 atBeragala Army Camp (where 1st respondent Capt. Siriwardena wasCommander) until 12.03.90. Thereafter she was detained at the Baduiia rv.'~:-Station until 11.04.1990 on which date she was transferred to the Badulla y:,.All such detentions were imposed under Orders signed by the 6th responds-it(Asst. Superintendent of Police). Later on, the police forwarded to the 8threspondent (Superintendent of Prisons, Badulla) a detention order underRegulation 17(1) of the Emergency Regulations signed by the Secretary to theState Minister for Defence bearing the date 01.04.1992. The 2nd petitioner who isthe eldest son of the 1st petitioner had been arrested along with her but wasreleased on 30.01.1990.
The events which culminated in the arrest of the petitioners are linked to themurder of one Retnasiri, a former driver of the 1st petitioner on or about 07.02.90by a gang led by one Jinadasa said to be a well-known member of the JanathaVimukthi Peramuna (J.V.P.) and close associate of 1st petitioner, who it is allegedsupported the subversive activities of the J.V.P. by providing funds. Ten days afterthe deceased driver Ratnasiri left the services of the 1st petitioner, her house wasburgled and cash and jewellery worth Rs. 450,000/- stolen.
The first petitioner complains of being manacled, beaten with a hose, hung by hermanacles and beaten until she confessed. In addition 1st respondent wanted tohave sex with her.
The 1st respondent had left the army on 04.08.1990 ah’d gone abroad.
The impugned arrest had been made under Regulation 18(1) of the EmergencyRegulations.
Held:
In terms of Article 13(1) of the Constitution, any arrest has to be “according tothe procedure established by law" and the person arrested has to be informed ofthe reason for his arrest.
The principles to be applied in determining the validity of an arrest are asfollows:
It is not the duty of the Court to determine whether on the available materialthe arrest should have been made or not. The question for the Court iswhether there was material for a reasonable officer to cause the arrest.
Proof of the commission of an offence is not required. A reasonablesuspicion or a reasonable complaint of the commission of an offencesuffices. The test is an objective one. A suspicion is proved to be reasonableif the facts disclose that it was founded or matters within the police officer'sown knowledge or on the statements made by other persons in a way whichjustify him giving them credit.
During a period of emergency, a wider discretion is vested in the police inthe matter of arrest as it would otherwise inhibit them from the dueprformance of their duties which ensure the safety of the State and theprotection of the general public against armed attack or subversion.
The above principles would equally apply to an arrest by the army.
The 2nd petitioner was arrested because he had accompanied his mother the1st petitioner when she showed her deceased driver to Jinadasa. He washowever released on the next day, 30.01.1990. No order against the respondentsin respect of his arrest is therefore necessary.
In justification of the arrest of the 1st petitioner, the State relies on the barestatements in the affidavit of the 6th respondent (Asst. Superintendent of Police,Badulla) that she was arrested for instigating the murder of her driver by the J.V.P.and for assisting subversive activities. They also rely on the statements of threepersons, two of whom are self-confessed accomplices to the murder of the driver.These statements have been recorded after the filing of the present applicationand would not constitute objective criteria for justifying 1st petitioner’s arrest.
The only material relevant to the arrest has been produced by the 9th respondent(one Mendis of Esco Tyre Traders, Bandarawela):
the statement of the deceased driver’s mother Julia Nona dated 20.2.89to the effect that the 1st petitioner had shown the deceased driver to anunidentified man later identified as his killer;
the statement of one Kirthi dated 18.2.89, a former driver of the 1stpetitioner to the effect that she offered him money to murder a BuddhistMonk (a professional charmer) with whom she had fallen out;
the statement of one Janaka dated 18.2.89, a former cleaner in theservice of the 1st petitioner to the effect that she offered him money to killthe 9th respondent with whom she was angry;
the 1st petitioner’s own statement which shows that she had more intimateknowledge of the man who killed her driver than she has disclosed in her
petition.
There was thus creditworthy material to arrest the 1st petitioner on suspicion ofbeing involved in.an offence under the Emergency Regulations even though suchmaterial may be insufficient to warrant a charge against her. Causing death to anyperson with any weapon is an offence under Regulation 24(1)(b); and even if thearmy failed to inform the 1st petitioner of such reason at the moment of her arrest,they made it known to her immediately upon her arrival at the army camp.
Therefore her arrest was lawful.
(a) Detention in terms of Regulation 19(2) can be justified only if it is for thepurpose of search or further investigation. Even assuming the right to detain the1st petitioner for instigating the offence under Regulation 24, there is nojustification for detaining her for offences under Regulations 26, 27 and 28 whichrefer to sedition and incitement, display of slogans and distribution of leafletsrespectively: Although she was detained under Regulation 19(2) for over twomonths the State has not furnished any evidence of investigations carried outduring that period.
Even for the detention until 11.4.90, in the Badulla Police Station, the State has notproduced proof of any investigations, during such detention. But the 1stpetitioner's own statement shows that she had been closely examined on allmatters relevant to the murder. This constitutes investigation and the detentionunder Regulation 19(2) can be justified.
Even though the detention can be justified, it is vitiated by the failure to producethe 1st petitioner before a Magistrate not later than 30 days from the arrest as
required by Regulation 19(1). Therefore the detention'under Regulation 19(2) wasunlawful and violative of Article 13(2) of the Constitution.
Detention under Regulation 17(1) is to prevent the 1st petitioner from acting inany manner prejudicial to the national security or the mantenance of public order.No charges were framed against her presumably because there was no evidenceto establish the commission of any offence by her and hence she was placedunder preventive detention. Such detention can be validly imposed even if nooffence is proved, nor any charge formulated. The essential concept of preventivedetention is that the detention is not to punish the person for something he hasdone but to prevent him from doing it. The basis for detention is the satisfaction ofthe executive of a reasonable probability of the likelihood of the detenu acting in amanner similar to his past acts and preventing him by detention from doing so. Apreventive detention order under Regulation 17(1) is* made on the subjectivesatisfaction of the Secretary. However the power to make such an order is notunfettered. Where the order is challenged, the Court is competent to considerwhether the Secretary did in fact form the requisite opinion by applying the test ofreasonableness in the broad sense. To enable the Court to do so, the grounds forthe order must be disclosed, even though the Court will not inquire into thesufficiency of such grounds.
Although the Secretary has filed no affidavit disclosing the grounds for his order,the affidavit of the 6th respondent and the other material indicate that the saidorder was made in view of the 1st petitioner’s association with an alleged J.V.P.member who was responsible for her driver's murder. Hence the Secretary wascompetent to make the order.
In terms of Regulation 17(5) it is the duty of the Secretary to afford the earliestpossible opportunity to the detenue to make representations to the Presidentagainst the order and to ensure that he is informed of his right to makerepresentations to the Advisory Committee. Whilst there is no provision inRegulation 17 for serving on a detenu, a copy of the detention order at the time ofhis arrest, he should at least be informed of the fact of his arrest on such orderexcept where the exigencies of the case preclude it and a copy of the ordershould be given to the detenu. In the instant case it is more probable this was notdone. A person’s liberty cannot be deprived of in this manner. The detention insuch circumstances is unlawful.
Assuming the petitioner was lawfully detained from 1.4.90, her detention nowexceeds one year and is excessive and unlawful. An order under Regulation 17 isliable to be reviewed for excessiveness.
The petitioner can no longer be regarded as a threat to national security or themaintenance of public order. Her continued detention is unlawful and violative ofArticle 13(2) of the Constitution.
There is no doubt that the 1st petitioner was subjected to severe interrogationand confrontation in the course of which she would have been treated roughlyand even insulted. But the acceptable evidence does not go beyond andestablish that degree of grave inhuman treatment which constitutes aninfringement of Article 11 of the Constitution.
Cases referred to:
Wijewardena v. Zain S.C. Application No. 202/87 – S.C. Minutes of 24.7.89.
Withanachchi v. Cyril Herat, Leelaratne v. Cyril Herat S.C. Nos 144-145/86S.C. Minutes of 01.7.1988.
Joseph Perera v. Attorney-General (1992) 1 Sri LR 199.
Gunasekera v. de Fonseka 75 NLR 246.
Muttusamy v. Kannangara 52 NLR 324,327.
Yapa v. Bandaranayake (1988) 1 Sri LR 63, 73, 75.
Henry Perera v. Nanayakkara (1985) 2 Sri LR 374.
Edirisuriya v. Navaratnam (1985) 1 Sri LR 100,118.
Rex v. Halliday (1917) AC 260,269.
Vijaya Kumaranatunga v. Samarasinghe FRD Vo1.2 p. 347
Wickremabandu v. Cyril Herat S.C. 27/88 S.C. Minutes of 6.4.90
W. M. K. de Silva v. Chairman, Ceylon Fertilizer Corporation (1989) 2 Sri LR393, 400, 404,405.
Nallanayagam v. Gunatilleke (1987) 1 Sri LR 293,298.
APPLICATION for infringement of fundamental rights.
Ran Banda Seneviratne with Miss Pushpa Waidyasekera and B. S. Amarasiri forpetitioners.
R. Arasacularatne, S.S.C. with J. Jayasuriya, S.C. for 4th, 5th, 6th, 7th, 8th and *“10th respondents.
Peter Jayasekera with Sarath Liyanage and Miss Shanthi Karunasekera for 9threspondent.
Curadv vu
11th March, 1991.
KULATUNGA, J.
The 1st petitioner is a married woman with three male children ofwhom the 2nd petitioner is the eldest son. At the time of her arrest bythe army on 29.01.90 she was engaged in business in the Badulladistrict. She was a private bus owner. She also owned a lorry, a pick-up double cab, a van and a car. Her husband is employed in Abu-dhabi as a processing engineer in an oil installation. According to theaffidavit of Captain Susantha Dhammika Attanayake (6R10) she wasinitially detained pending investigations into “alleged subversiveconnections”.
The 1st petitioner was detained under Regulation 19(2) of theEmergency Regulations for alleged offences under Regulations 24,26, 27 and 28. According to the respondents she was so detained atthe Beragala army camp until 12.03.90. Thereafter, she was detainedat the Badulla Police Station until 11.04.90 on which date she wastransferred to the Badulla Prison.'All such detentions were imposedunder orders signed by the 6th respondent (Asst. Superintendent ofPolice). Later on, the police forwarded to the 8th respondent(Superintendent of Prisons, Badulla) a detention order underRegulation 17(1) of the Emergency Regulations signed by theSecretary to the State Minister for Defence bearing the date 01.04.90.She continued to remain in detention on this last order and at the timeof the hearing of this application she had completed one year ofdetention. The 2nd petitioner who had been arrested along with the1st petitioner was released on 30.01.90. The petitioners have sincefiled this application for alleged infringements of their fundamentalrights under the Constitution.
It would appear that the events which culminated in the arrest ofthe petitioners are linked to the murder of one Ratnasiri who hadbeen employed by the 1st petitioner as a driver, on or about 07.02.89by a gang led by one Jinadasa said to be a well-known member ofthe Janatha Vimukthi Peramuna. It is alleged that the 1st petitionerwas a close associate of Jinadasa and assisted the J.V.P. insubversive activities by providing funds. A few days prior to themurder, she had pointed out the house of the deceased to themurder suspect Jinadasa. According to the deceased’s mother Julia
Nona (9R3), at about 12.30 a.m. on 07.02.89 an armed gang camehome and removed the deceased. In the morning the deceased wasfound shot dead. The case for the respondents has been presentedin this background. However, the case for the petitioners as set outby them is as follows.
In 1988, the petitioners were resident in Bandarawela. One day thedeceased driver left his employment with the 1st petitioner but heused to visit her. Ten days after he left, her house was burgled by anarmed gang. They removed cash and jewellery worth Rs. 450,000/-.This was generally understood to be the work of the J.V.P. This was inOctober, 1988. Later another person whom she identifies as a brotherof a Buddhist priest in a nearby temple approached her and said heknew the burglars and that the deceased driver was an accomplice;he also said that he would try and retrieve the goods and wanted herto show the house of the driver. She says that "unsuspectingly" sheshowed the driver’s house to the said person; and sometimethereafter several persons were found murdered in Bandarawela andamong the dead bodies there was the body of the said driver; andthat the killings were attributed to the J.V.R and the cause was said tobe burglaries committed by the dead in the name of the J.V.P.
The 1st petitioner said thereafter she left Bandarawela and settledin Badulla being apprehensive of the repetition of the incidents whichoccurred, viz. the burglary and the murders; she also says that shefeared the 9th respondent an ex-army officer and the owner of a tyreshop who had become her enemy due to her refusal to accede to hisrequests for intimacy and threatened to create trouble using hisconnections. At Badulla she continued to ply her buses and attendedto her other business.
At about 10.30 p.m. on 29.01.90 when she returned home shefound that her house has been surrounded by a group of army , menled by the 1 st, 2nd and 3rd respondents. They arrested her and tookher along with the 2nd petitioner to the Bandarawela army camp.They also removed her car, 16 Sri 6612 Toyota Corolla wagon. On themorning of 30,01.90 the said three respondents abused thepetitioners calling them murderers and questioned the 1st petitioner
about involvement in the murder of the driver. The 1st respondentsaid that he had learnt from the 9th respondent that the 1st petitionerhad hired an assassin forRs. 6000/- to murder the driver, which shedenied. They began assaulting her. The 2nd petitioner was alsoassaulted and was released and was allowed to go home. She wasmanacled, beaten with a hose, hung by her manacles and beatenuntil she agreed to confess. She was bleeding. She was then broughtdown and her confession was recorded. That night the 1strespondent took her and left her at the Bandarawela Police Stationwhere she told the police matron about her ill-treatment by the armyand showed the injuries to Sub-Inspector Mahanama.
Until 04.02.90 the 1st petitioner was being ta'ken to the army campfor the day and brought to the Police Station for the night. The 1strespondent suggested to her from time to time that she has sex withhim promising to end her sufferingi.this she refused. On 05.02.90 shewas brought to the Beragala army camp where the 9th respondentvisited several times. Whilst she was there one Corporal Kapilaapprehended the alleged murderer of her driver and brought him tothe camp. He made a confession but denied any involvement of the1 st petitioner in the murder.
On 01.03.90 the mother of the deceased came to the Beragalacamp and there at the instigation of the 1st respondent assaulted the1st petitioner with a slipper all over her body; she developed a feverand was taken to the Haletathenna hospital where she was treated bya doctor. On instructions given at the camp she told the doctor thatshe had fallen from a staircase and sustained injuries. About threedays thereafter she was taken to the “torture chamber” of the campwhere she saw the murder suspect hung with his head shaven; hewas manacled and was dripping with blood; the 1st respondent beathim with a hose and asked him to say that the 1st petitioner paid himRs. 6000/- to kill the driver but the suspect said that the driver waskilled as he engaged in burglaries in the name of the J.V.P. and thatthe 1st petitioner had nothing to do with. Ultimately the 1strespondent slapped her and sent her back.
The petitioners also allege that while the 1st petitioner was indetention the 1st respondent with his men visited her house,threatened the caretaker one Mohideen and removed valuablearticles and two vehicles belonging to her, L 300 Delica van(unregistered) and Datsun pick-up truck No. 27 Sri 420. An affidavitfrom Mohideen (P4) has been produced in support of this allegation.As per documents P1a, P1b and P1c, the vehicle No. 27 Sri 420 hasbeen returned by the army on 26.06.90. According to the affidavit ofthe 1st petitioner's husband filed on 30.07.90 the L 300 Delica van ispresently unusable and is lying in the Diyatalawa army camp whilstthe Toyota Corolla wagon No. 16 Sri 6612 (which was taken at thetime of the petitioners’ arrest) is being used by Brigadier Abeyratne atDiyatalawa.
Captain Attanayake in his affidavits (6R10, 6R12) states that the1st respondent (Captain Siriwardena) who was the CommandingOfficer of the Beragala camp during the relevant period left the armyon 04.08.90. As regards the 2nd and 3rd respondents he states thatthere were no persons answering to their descriptions attached to theBeragala army camp. At the hearing of this application the learnedSenior State Counsel complained that the 1st respondent left thecountry on 28.08.90; he has gone to Switzerland; and hence the onlyperson who could speak to the arrest is not available. However,notice of this application had been despatched to the 1st, 2nd and3rd respondents by registered post through the 4th respondent (TheCommander of the Army) on 25.07.90; the matter was fixed for
for argument- and no reason has been given as to why hehas failed to file his objections before he left the country. Eventhereafter it could not have been beyond the resources of the State tohave traced him but the State does not appear to have made anyattempts thereat; instead they have relied upon Captain Attanayake(who was the second in command at the Beragala army camp duringthe relevant period) to answer the allegations. As such, I see no meritin the explanation of the S.S.C.
Leave to proceed was granted to the petitioners for allegedinfringements of Articles 11 and 13 of the Constitution. I shall firstconsider the validity of the arrest. The petitioners have failed to filethis application within one month of the arrest but the Counsel for theState very properly did not object to it on the ground of the bar underArticle 126(2) of the Constitution in view of the fact that having regard
to the conditions of the 1st petitioner's-detention, they were not free tohave recourse to this Court until the filing of this application. It is clearfrom the detention orders 6R2, 6R3 and 6R4 that the impugned arresthad been made under Regulation 18(1) of the EmergencyRegulations which provides inter alia that any member of the SriLanka Army may arrest without a warrant any person whom he hasreasonable ground for suspecting to be concerned in or to havecommitted any offence under Emergency Regulations. In terms ofArticle 13(1) of the Constitution any arrest has to be “according to theprocedure established by law” and the person arrested has to beinformed of the reason for his arrest.
In Wijewardena v. Za/n(,) the principles to be applied indetermining the validity of an arrest under Regulation 18(1) havebeen summarised thus:
“As held in Withanachchi v. Cyril Herat, Leelaratne v. CyrilHerat(2) it is not the duty of the Court to determine whether onthe available material the arrest should have been made or not.The question for the Court is whether there was material for areasonable officer to cause the arrest.
Proof of the commission of the offence is not required; areasonable suspicion or a reasonable complaint of thecommission of an offence suffices. The test is an objective one.Joseph Perera v. Attorney-General(3> Gunasekera v. deFonsekaw. A suspicion is proved to be reasonable if the factsdisclose that it was founded on matters within the police officer’sown knowledge or on the statements made by other persons ina way which justify him giving them credit Muttusamy v.Kannangara®. See also Yapa v. Bandaranayake(6> ”.
There is also the consideration that during a period of emergencya wider discretion is vested in the police in the matter of arrest as itwould otherwise inhibit them from the due performance of their dutieswhich ensure the safety of the State and the protection of the generalpublic against armed attack or subversion – Joseph Perera v.Attorney-General (supra) per Wanasundera, J. The above principleswould equally apply to an arrest by the army.
Now the allegation is that the army arrested both petitioners. The6th respondent in his affidavit which is supplemented by severalannexes including an affidavit of Captain Attanayake admits thearrest of the 1st petitioner. He denies the allegation of torture butdoes not deny the arrest of the son, the 2nd petitioner. I thereforeregard his arrest as proved. Neither the police nor the army haspreferred any allegation of subversive connections against him.However, in 9R4, the statement of Julia Nona dated 20.02.89produced by the 9th respondent (Mendis), there is reference to the1st petitioner’s eldest son as having accompanied her on the day sheshowed the deceased driver to the suspect Jinadasa. It is possiblethat the said information was available to the army and this led to thearrest of the 2nd respondent. However, he was released forthwith,there being no material to justify further proceedings against him. Inthe circumstances, I do not think it necessary to make any orderagainst the respondents on account of his arrest.
In justification of the arrest of the 1st petitioner, the State relies onthe bare statements in the affidavit of the 6th respondent that she wasarrested for instigating the murder of her driver by the J.V.P. and forassisting subversive activities. They also rely on the statements ofthree persons. Two of them are self-confessed accomplices to ■. smurder of the driver who claim to have heard from the killer Jinadesethat the murder was committed at the request of the 1st petitioner.The other person states that he accompanied the 1st petitioner onthe day she took the killer and showed him the driver. All thesestatements have been recorded after the filing of this application andhence would not constitute objective criteria for justifying the 1stpetitioner's arrest.
Quite ironically, the only material relevant to the arrest has beenproduced by the 9th respondent, Mendis defending himself againstthe allegation that he was responsible for the impugned arrest anddetention. This consists of –
9R4, the statement of Julia Nona dated 20.02,89 referred toabove to the effect that the 1st petitioner had shown thedeceased driver to an unknown man later identified as hiskiller;
9R5, the statement of one Kirthi dated .18.02.89. He had beenemployed as a driver in the transport service of the 1stpetitioner and says that she offered him money to murder aBuddhist monk (a professional charmer) with whom she hadfallen out;
9R6, the statement of one Janaka dated 18.02.89. He hadbeen employed as a cleaner under the 1st petitioner and saysthat she offered him money to kill the 9th respondent withwhom she was angry.
These statements have been recorded by the Bandarawela Policein the course of investigations into the murder of the driver.
The 9th respondent admits the existence of enmity between himand the 1st petitioner but denies that he instigated her arrest. Healleges that she was out to harm’ him. It is his case based on theabove statements that she. is a person of violent disposition. Inconfirmation he has also produced 9R7, the 1st petitioner’s ownstatement dated 25.03.90 recorded by the Bandarawela Police. 9R7shows that she had a more intimate knowledge of the man who killedher driver which she has failed to disclose in her petition. She told thepolice that he is the brother of Reverend Nandawimala ofAsokaramaya; that on the request of the monk she met him at a placeclose to his boutique in Karagahawela when he promised to help herto recover the valuables which were burgled from her house; and thatat the Beragala army camp she learnt that he is one jinadasa.
It is probable that sooner or later such information surrounding themurder of the 1st petitioner's driver had reached the army who wereengaged in anti-subversive activities in the area. Their conduct intreating the 1st petitioner as a “murderer’’ from the moment of herarrest confirms this. It therefore seems to me that there was crediblematerial to arrest the 1st petitioner, on suspicion of being concernedin an offence under Emergency Regulations even though suchmaterial may be insufficient to warrant a charge against her. Causingdeath to any person with any weapon is an offence under Regulation24(1 )(b); and even if the army failed to inform the 1st petitioner ofsuch reason at the moment of her arrest, they made it known to herimmediately upon her arrival at the army camp. In thesecircumstances, I hold that her arrest is lawful and is not violative ofArticle 13(1) of the Constitution.
The next question is the validity of the impugned detention. It is therespondent's position that until 11.04.90 she was detained first at theBeragala army camp and thereafter at the Badulla Police Station onorders made by the 6th respondent in terms of Regulation 19(2) foroffences under Regulations 24, 26, 27 & 28. However, the petitionerstates that until 05.02.90 she was kept at the Bandarawela armycamp by day and Police Station by night. Even if this were notcorrect, the more relevant question is whether her detention for thealleged offences is justified. Such detention can be justified only if itis for the purpose of search or further investigation. Henry Perera v.Nanayakkaram. In view of the murder of the driver the invocation ofRegulation 24 can be justified. The said murder had occurred on
and hence the police had ample time to investigate it or tomake an arrest. Nevertheless, I shall, in all the circumstances,assume the right of the law-enforcing officers to arrest and detain the1st petitioner even at a later stage, for investigating the offence underRegulation 24. However, I see no justification for detaining her ;oroffences under Regulations 26, 27 and 28 which refer to sedition andincitement, display of slogans and distribution of leaflets respectively.
Although she was detained under Regulation 19(2) for over twomonths the State has not furnished any evidence of investigationscarried out during that period. As regards her detention upto
at the Beragala army camp, the only available informationfurnished by the State is the bare statement of Captain Attanayakethat she was so detained pending investigations into "subversiveconnections”. However, the 1st petitioner gives an account of whattranspired in that camp in support of which she relies on the affidavitsof Lurdu Mary (Matron) and Nandawathie another detainee (P4, P5).According to her, she had. been questioned regarding the murder ofher driver. Thereafter, she was transferred to the Badulla PoliceStation where she remained until 11.04.90, on which date she wastransferred to the Badulla Prison. Once again, the State has notproduced proof of any investigations during such detention. However,it is clear from her statement 9R7 that during that period she had
been closely examined on all matters relevant to the murder. Thisconstitutes investigation. As such the detention under Regulation19(2) can be justified.
Even though the said detention can be so justified, it is vitiated bythe failure to produce the 1st petitioner before a Magistrate not laterthan thirty days from the arrest as required by Regulation 19(1). AsWanasundera, J. said in Edirisuriya v. Navaratnamm.
"Such a requirement is always considered a salutaryprovision to ensure the safety and protection of arrestedpersons. It is more than a mere formality*or an empty ritual, butis generally recognised by all communities committed to theRule of Law as an essential component of human rights andfundamental freedoms”.
The learned Counsel for the petitioners complained withoutcontradiction by the State that the 1st petitioner was never producedbefore a Magistrate. Accordingly, I hold her detention underRegulation 19(2) to be unlawful and violative of Article 13(2) of theConstitution.
According to the 6th respondent, the detention orders made byhim was followed by a detention order under Regulation 17(1) madeon his recommendations. This was to prevent the 1st petitioner actingin any manner prejudicial to the national security or the maintenanceof public order. No charges were framed against her presumablybecause there was no evidence to establish the commission of anyoffence by her and hence she was placed under preventivedetention. Such detention can be validly imposed even if “no.offenceis proved, nor any charge formulated” Rex v. Halliday<9>. Shukla in“The Constitution of India” 7th Ed. 134 states –
“The essential concept of preventive detention is that thedetention of a person is not to punish him for something he hasdone but to prevent him from doing it. The basis for detention isthe satisfaction of the executive of a reasonable probability of
the likelihood of the detenu acting in a manner similar to hispast acts and preventing him by detention from doing so”.
(See also Vijaya Kumaranatunga v. Samarasinghem FRD(2)347, Yapa v. Bandaranayake (supra)
A preventive detention order under Regulation 17(1) is made onthe subjective satisfaction of the Secretary. However, the power tomake such order is not unfettered. Thus where the order ischallenged the Court is competent to consider whether the Secretarydid in fact form the requisite opinion by applying the test ofreasonableness in the broad sense. To enable the Court to do so, thegrounds for the order must be disclosed, even though the Court willnot inquire into the sufficiency of such grounds. Wickremabandu v.Cyril Herat*111.
In the instant case, there is no affidavit from the Secretarydisclosing the grounds for his order. However, the affidavit of the 6threspondent and the other material indicate that the said order wasmade in view of the 1st petitioner’s association with an alleged J.V.P.member who was responsible for her driver's murder. I am thereforesatisfied that the Secretary was competent to make the order; but theteamed Counsel for the 1st petitioner, relying on certain officialentries on the detention order, alleges that there was no such order atthe place of detention and the 1st petitioner was not shown any suchorder; that it has been sent there after the filing of this application on06.07.90. On that basis, he submits that the 1st petitioner’s detentionis unlawful, This is a serious allegation which the Court must consider.The following facts are relevant in this connection.
The order 6R7 is dated 01.14.90. However, the 8th respondentinformed this Court on 17.07.90 that the 1st petitioner was firstproduced before the Prison Authority by the Badulla Police on
along with the order 6R4 made by the 6threspondent; and that later the police sent the order 6R7. The8th respondent has not filed any affidavit in particular forclarifying the actual date on which the said order wasreceived; nor is there any explanation in the matter either fromthe 6th respondent or from the Secretary.
There appears on the face of 6R7 an official date stamp for09.07. it has the words Ҥ c-aa ajsfo" which indicates itsreceipt at the prison on 9th July.
In her affidavit, the 1st petitioner states that she was nevershown the detention order. The 6th respondent denies thisbut has not adduced any proof that the order was shown toher.
In terms of Regulation 17(5) it is the duty of the Secretary to affordthe earliest possible opportunity to the detenu to makerepresentations to the President against the order and to ensure thathe is informed of his right to make representations to the AdvisoryCommittee. Particularly for that reason this Court has, in the case ofWickremabandu v. Cyril Herat (supra), expressed the view that whilstthere is no provision in Regulation 17 for serving on a detenu a copyof the detention order at the time of his arrest, the detenu should atleast be informed of the fact of his arrest on such order except wherethe exigencies of the case preclude it; and that a copy of the ordershould be given to the detenu. In the instant case, it is more probablethan not that this has not been done; I am satisfied that the order wasnot sent to the prison until 09.07.90.1 do not think it to be the law thata person’s liberty can be deprived of in that manner. I therefore holdthat the 1st petitioner’s detention in such circumstances is unlawful.
Assuming that the 1st petitioner was lawfully detained from
on 6R7, I am of the view that her detention which nowexceeds one year is excessive and hence unlawful. Her detentionhas been continued from, month to month by virtue of the provisionsof S.2A of the Public Security Ordinance (Cap. 40) which providesthat where a further proclamation is made under S.2(2) inter aliaevery order made under any Emergency Regulation and in force priorto such regulation “shall be deemed to be in force” with the cominginto operation of such further proclamation.
An order under Regulation 17 is liable to be reviewed by this Courtfor excessiveness. Wickremabandu v. Cyril Herat (supra). On thebasis of the available material, it seems to me that the 1st petitioner’sassociation with Jinadasa who is alleged to be a member of the J.V.P.
was motivated more by her anxiety to recover the property burgledfrom her house than any desire to assist subversive activity. She washerself a victim of the unsettled conditions in the area. She is abusiness woman. There is no evidence of any political or ideologicallinks between her and the subversive movement. Viewed in that lighther motive for flirting with Jinadasa is very much personal. The onlystatements which allege general support by her to the J.V.P. are thoseof two self-confessed assassins recorded after the filing of thisapplication. Even they do not speak from personal knowledge butrepeat remarks attributed to Jinadasa their leader that she hadfunded the J.V.P. Further, no explanation has been given for the delayin recording the statements under reference. As such, I am unable torely on these statements.
Thus it is on the basis of her limited involvement with an allegedJ.V.P. man that the 1st petitioner’s detention may be justified. In themeantime her Bandarawela residence had been burgled. She saysthat her Badulla residence was ransacked and vehicles removed.She has languished in prison long. I do not think that she ca -longer be regarded as being a threat to national security cr iremaintenance of public order and be detained on that ground.Accordingly, I determine her continued detention to be unlawful andviolative of Article 13(2) of the Constitution.
The next question is the alleged infringement of Article 11. The 1stpetitioner's statement 9R7 produced by the 9th respondentsubstantially corroborates her version on all matters except on thealleged involvement of the 9th respondent and the nature of the illtreatment by the army. It supports her position that the suspectJinadasa had been apprehended and was brought to the army campwhere .he was tortured. I accept her statement that Jinadasa hadbeen arrested and brought to the camp and that he was interrogatedthere. It is difficult to accept the respondent’s version that Jinadasawho appears to be a well-known man was not arrested.
In support of the allegation of inhuman treatment, the 1st petitionerproduced an affidavit from the matron Lurdu Mary and Nandawathie,
a J.V.P. detainee. In a subsequent affidavit which Lurdu Mary hasgiven to the respondents she has gone back on the first affidavit. Iam unable to rely on Nandawathie’s affidavit in view of herantecedents. The 1st petitioner’s own statement 9R7 only states thatthe army assaulted her during the interrogation. No further details ofthe alleged inhuman treatment appear. She also states that thedeceased driver’s mother slapped her in the presence of CaptainSiriwardena. It is possible that such assault was inflicted by anenraged mother on her own and not necessarily at the behest ofCaptain Siriwardena. There is no doubt that the 1st petitioner wassubjected to severe interrogation and confrontation in the course ofwhich she would have been treated roughly and even insulted; butthe acceptable evidence does not go beyond and establish thatdegree of grave inhuman treatment which constitutes an infringementof Article 11 of the Constitution. See Mrs. W. M. K. de Silva v.Chairman, Ceylon Fertilizer Corporation(,sl. I hold that the allegedinfringement of Article 11 has not been established.
Finally I turn to the alleged taking of the 1st petitioner’s vehicles bythe army. The petitioners state that the car No. 16 Sri 6612 was takenon 29.10.90. L 300 Delica van (unregistered) and vehicle No. 27 Sri420 were removed while she was in detention. The last of .threevehicles has been returned by the army. However, the other twovehicles are still with the army. The respondents have not deniedthese allegations; nor have they sought to justify the requisitioning ofthese vehicles. I am therefore satisfied that the army had removedthem and that the 1st petitioner is entitled to recover the same.
The allegation that the 9th respondent instigated the arrest anddetention of the Ist-petitioner has not been established. Accordinglyan order against him is not justified. The application against him isaccordingly dismissed without costs.
On the question of relief arising upon the infringement of Article13(2), in one case where the unlawful detention was underRegulation 19(2) of the Emergency Regulations, this Court granted asum of Rs. 5,000/- for three days of unlawful detention. Nallanayagamv. Gunatillekem).
“Article 13(2) embodies a salutary principle safeguarding thelife and liberty of the subject and must be exactly complied withby the executive. In our view this provision cannot beoverlooked or dismissed as of little consequence or as a minormatter”.
In Withanachchi v. Cyril Herat, Leelaratne v. Cyril Herat {supra),another case of unlawful detention under Regulation 19(2) there weretwo detainees. One of them who had been detained for 46 days wasgranted Rs. 10,000/- whilst the other who had been detained for 46days was granted Rs. 25,000/-.
In Wickremabandu v. Cyril Herat (supra), the detention was underRegulation 17(1). This Court held that a period of 4 months detentionwas excessive and granted Rs. 15,000/- as compensation taking intoconsideration the fact that inter alia the impugned detention hadbeen affected in the background of a widespread insurrection.
The question of relief would depend on the facts andcircumstances of each case. In the instant case, I have held thedetention to be unlawful in respect of orders made under Regulations17(1) and 19(2). I take into consideration the suffering the 1stpetitioner had to undergo during her incarceration for over one yearwhich is vitiated by serious non-compliances. The 6th respondent isresponsible for such non-compliances for which the State becomesliable. I think it just and equitable to grant her compensation in a sumof Rs. 20,000/- (Rupees Twenty Thousand) and a further sum ofRs. 2000/- (Rupees Two Thousand) as costs, payable by the State. Idirect that the payment be made accordingly. I also direct the 8threspondent to release the 1st petitioner from detention and the 4threspondent to return to her the two vehicles which are with the army.
AMERASINGHE, J. – / agree.WADUGODAPITIYA, J. -I agree.Application allowed.