CHANDRASIRI v. GEN. CYRIL RANATUNGA AND OTHERS

009-SLLR-SLLR-1993-1-CHANDRASIRI-v.-GEN.-CYRIL-RANATUNGA-AND-OTHERS.pdf


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CHANDRASIRI
v.GEN. CYRIL RANATUNGA AND OTHERS
SUPREME COURT.
G. P. S. DE SILVA, C.J., KULATUNGA, J.
AND RAMANATHAN, J.
SC APPLICATION NO. 138/92.
03 FEBRUARY, 1993.
Fundamental rights – Emergency Regulations – Detention Order under Regu-lations 19 (2) and 17 (1) – Order for Rehabilitation.
The petitioner, a field officer on the Andipana Estate was arrested by army officersand detained in terms of an order made under Regulation 19 (2) of the EmergencyRegulations. The petitioner was thereafter kept in continued detention undera preventive detention order made under Regulation 17 (1). He was thereafterreleased after rehabilitation.
Held :
There was no material to justify the detention made under Regulation 19(2) or to satisfy the Court that the Secretary entertained the opinion thatit was necessary to detain the petitioner under Regulation 17 (1).
The detention of the petitioner was invalid ; and the order for rehabilitationtx&ed on such invalid detention was also invalid, and violative of thepetitioner's rights under Articles 13 (2) and 13 (4).
APPLICATION for violation of fundamental rights.
R. K. W. Goonesekera with K. Tiranagama for petitioner.
Hector Yapa, D.S.G. for respondents.
February 03, 1993.
KULATUNGA, J.
This Court granted the petitioner leave to proceed with hisapplication in respect of the alleged violation of Articles 13 (2) and13 (4) of the Constitution.
The petitioner states that he had been employed as a Field Officeron the Andipana Estate at Morawaka, drawing a salary of Rs. 1,500per mensem. At the time of the filing of this application he was 30
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years of age. He alleged that he was arrested by officers of theHeegoda Army Camp on 19.03.1990 and he was detained there.When that camp was closed down, he was handed over to theUrubokka Police Station on 27.06.1990 to be transferred to theWeerawila Detention Camp and he was so transferred on 29.06.1990.
The petitioner further states that the Officer-in-Charge of theUrubokka Police Station, by his letter dated 08.11.1991(P1),
addressed to the lawyers for Human Rights and Development,informed that on 04.11.1991 he had recommended the release ofthe petitioner as the evidence did not disclose any charges againsthim. However, the petitioner was not released and was kept incontinued detention at the Detention Camp, Weerawila until 07.01.1992when he was sent for a period of six months' rehabilitation at theAesthetic Centre, Madiwela and was thereafter released. Thepetitioner in his affidavit filed on 16.11.1992 states that he wasreleased after rehabilitation on 16.06.1992. However, according tothe respondents he was officially released after rehabilitation on10.06.1992. Learned Deputy Solicitor General explained that if therehad been any delay in the actual release of the petitioner from theRehabilitation Centre this may have been due to some delay inarranging for the handing over of the petitioner to a relation, whichis the usual practice.
On the above facts, the petitioner alleges that his detention wasunlawful and violative of Articles 13 (2) and 13 (4).
As regards the date of the petitioner's arrest, according to thepetitioner he was arrested on 19.03.1990, whereas according to therespondents he was arrested on 27.06.1990. Learned Counsel forthe petitioner drew our attention to the documents 1R1 and 2R1 andsubmitted that those documents support the petitioner's version thathe was in fact arrested on some date anterior to 27.06.1990. 1R1is a Detention Order under s. 19 (2) in terms of which it was directedthat the petitioner be detained at the Weerawila Detention Camp.2R1 is a letter dated 12.10.1991 addressed by the O.I.C., UrubokkaPolice Station to the 2nd respondent, the Chairman, Committee forArrest, Separation, Classification, Rehabilitation and Release ofDetainees. Both these documents indicate that the petitioner hadbeen handed over to the Urubokka Police Station for the purposeof being transferred to the Weerawila Detention Camp. In 2R1 the
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O.I.C., Urubokka Police Station specially affirms to this fact. Inthese circumstances, there is sufficient material to indicate thatthe petitioner had in fact been arrested prior to 27.06.1990. Therespondents have not urged any reason as to why the petitionershould have falsely asserted that he had been arrested on 19.03.1990,if the truth is that he was arrested in June that year. We therefore,hold that the petitioner was in fact arrested on 19.03.1990 as statedby him. The effect of this conclusion would be that after his arrestthe petitioner was detained at the Heegoda Army Camp until
without any Detention Order to justify such detention.Such detention would be unlawful and violative of the petitioner'srights under Article 13 (2).
The 1st respondent (Secretary, Ministry of Defence) and the 2ndrespondent have filed affidavits in defence of the impugned detentioncommencing with the Detention Order 1R1 dated 28.06.1990.
It is the case for the respondents that the petitioner was arrestedon 27.06.1990 on suspicion of subversive activities and that thiswas confirmed by investigations carried out by the Urubokka Police.A Detention Order under Regulation 19 (2) of the EmergencyRegulations (1R1) was obtained authorising the detention of thepetitioner at the Weerawila Detention Camp for ninety days. Thiswas followed by a Detention Order under Regulation 17 (1) dated
(1R2). Thereafter on the recommendations of theO.I.C., Urubokka Police Station (which he made by his letter dated
– 2R1) the petitioner was sent for rehabilitation for sixmonths after which he was released on 10.06.1992. I have alreadyreferred to the complaint as regards the delay in releasing him afterrehabilitation and the explanation offered by the learned DeputySolicitor General.
A Detention Order under regulation 19 (2) is competent in respectof a person who is arrested on suspicion of an offence under theEmergency Regulations – Regulation 18. However, the DetentionOrder 1R1 does not refer to any such offence, but authorises thepetitioner's detention to prevent him from acting in any mannerprejudicial to the national security or to the maintenance of publicorder (which are in fact grounds for making a preventive detentionorder under Regulation 17 (1). The validity of a detention underRegulation 19 (2) for which a valid arrest under Regulation 18 is a
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condition precedent has to be judged objectively on the basis ofmaterial placed before this Court. Whilst the Detention Order reliedupon itself does not assist us in regard to the lawfulness of the arrestfor any offence under the Emergency Regulations, the respondentshave not placed any other material before this Court in that regard.Thus, they have failed to furnish to this Court notes of investigation,if any, which had been earned out by the Police. Learned DeputySolicitor General informed us that there were certain information andintelligence reports on the basis of which the Detention Order wasmade. If that were so, copies of such information or reports havenot been made available to this Court ; nor has any excuse forsuch failure been tendered. In these circumstances, the DetentionOrder 1R1 cannot be justified.
As regards the Detention Order under Regulation 17 (1), the 1strespondent was, no doubt, competent to make such an order if hewas of the opinion that it was necessary to do so to prevent thepetitioner from acting in any manner prejudicial to the national securityor to the maintenance of public order. However, on the availablematerial, we are not satisfied that in fact he entertained such opinion.We are of the view that this is a case in which the 1st respondentshould have placed some material before this Court to so satisfy uson that matter even though he was competent to make the DetentionOrder on his subjective satisfaction as to the existence of thepre-conditions for making such order.
In this connection, it is relevant to note that the O.I.C., UrubokkaPolice Station, states in his letter 2R1 that the Detention Order underRegulation 17 (1) was obtained as the investigations had not beencompleted, which is not a valid ground for the making of a PreventiveDetention Order ; so that one finds that the averment contained inthe 1 st respondent's affidavit that he made the Detention Order 1R2to prevent the petitioner from acting in any manner prejudicial to thenational security or to the maintenance of public order, is contradictedby the document 2R1, which had been addressed to the 2nd respond-ent by the O.I.C., Urubokka Police Station. In these circumstances,we hold that the Detention Order 1R2 was also not validly made.
As regards the Order for rehabilitation which according to the 1strespondent was made on the recommendations of the O.I.C., UrubokkaPolice Station contained in the letter 2R1, it is observed that the said
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letter refers to forty six detainees. However, the letter 2R1 does notrefer to the petitioner by name. On the other hand, the letter P1 writtenby the same police officer states that he had recommended therelease of the petitioner as there was no material to frame chargesagainst him. Hence, the statement of the 2nd respondent that suchrehabilitation was recommended by the O.I.C. is an assumption whichcannot be justified. In any event, an order of rehabilitation is competentif there is a valid detention. We have found the petitioner's detentionto be invalid ; as such the order for rehabilitation was also invalid.
For the above reasons, we hold that the detention of the petitionerfor over two years was unlawful and violative of his rights underArticles 13 (2) and 13 (4). The petitioner states that by reason ofsuch detention, he has been deprived of his employment. He hadbeen without employment during the period of his detention, andas a result of his unlawful detention, he has now been deprived ofhis employment and perhaps prospects of future employment. Inthe circumstances, we consider it just and equitable to direct theState to pay to the petitioner a sum of Rupees Fifty Thousand(Rs. 50,000) as compensation and a sum of Rupees One ThousandFive Hundred (Rs. 1,500) as costs.
Detention declared unlawful.
Compensation ordered.
G. P. S. DE SILVA, C. J. – I agree.
RAMANATHAN, J. – I agree.