CHANNA PIERIS AND OTHERS v. ATTORNEY-GENERAL AND OTHERS

001-SLLR-SLLR-1994-V1-CHANNA-PIERIS-AND-OTHERS-v.-ATTORNEY-GENERAL-AND-OTHERS.pdf


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Channa Pieris and Others v. Attorney-General and Others
(Ratewesi Peramuna Case)
1
CHANNA PIERIS AND OTHERSv.
ATTORNEY-GENERAL AND OTHERS{Ratawesi Peramuna Case)
SUPREME COURT.
AMARASINGHE. J.
GOONEWARDENE, J. ANDWIJETUNGA, J.
SC APPLICATIONS
NO. 146/92 TO 154/92
AND 155/92 (SEVEN APPLICATIONS)
(CONSOLIDATED)
17 FEBRUARY, 1994
Fundamental Rights – Constitution, Articles 11, 13(1), 13(2), 13(4), 14(1) (a) and14(1) (c)- Illegal arrest – Communicating reasons for arrest – Freedom of speechand expression – Freedom of association – Detention – Torture – Regulations18(1), 17, 19 of the Emergency (Miscellaneous Provisions and Powers)
Regulations.
The ten applications were by consent considered together The applicants in theten applications were granted leave to proceed for the alleged infringements oftheir rights guaranteed by Articles 11, 13(1), 13(2), 14(1) (a) and 14(1) (c) of theConstitution. The petitioners were participants in a “movement" called theRatawesi Peramuna formed in November 1991 under the leadership of AtureliyaRathana, the petitioner in application No. 149/92. The Peramuna had problems. Inorder to consider the 'crises' encountered by the Peramuna, Rathana convened ameeting which was held at the Kawduduwa Temple on 27th February, 1992. Thecurrent political climate, various criticisms of the Ratawesi Peramuna, thedisruption in January 1992 of the exhibition of posters in Matara and theresurgence of the JVP were discussed after which a manifesto was introduced byChampika Ranawake the petitioner in Application No. 154/92. There were about15 participants at the Kawduduwa temple meeting, On an anonymous telephonecall received at the Wadduwa Police Station that a meeting of the JanathaVimukthi Peramuna was being held behind closed doors at the Kawduduwatemple by some University students led by one Champika Ranawaka, the thirdrespondent Inspector Ekanayaka went with a party of police officers and stoodoutside a window of the closed room where the meeting was being held andlistened to the discussions that were taking place. Sub-Inspector Galkande, 4threspondent, stood at another window and he also listened. They made notes ofthe discussions that were taking place. They formed the impression that theparticipants were engaged in a conspiracy to overthrow the Government.
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Inspector Ekanayake tapped at the door and got it opened and arrested thesuspects. Having explained the charge to them he took them into custody. The3rd and 4th respondents had noticed several priests and about ten youngpersons seated on the ground in a circle. One of the young men was standingand addressing the others and exhorting his audience to topple the Government.After this speech a priest had asked whether anyone opposed what had beenjust said. No one spoke and there was silence. At this the Inspector understoodthere was a confirmed conspiracy against the Government. He made a record olwhat had been said – so did Sub-Inspector Gafkanda. The third respondentheard a great deal more than the fourth respondent. They pasted their notes inthe minor offences book.
n«90.
Rights guaranteed by Articles 12, 14(1) (h) and 14(1) (g) of the Constitutionwere not violated as no evidence in support of such violations have beenadduced and no submissions made during the hearing in support of suchviolations.
It is incumbent on the person making the arrest to precisely indicate theprocedure under which the arrest was made. A detention of a person inpursuance of Regulation 18 must be in a place authorised by the Inspector-General of Police or Deputy Inspector-General of Police, Superintendent of Policeor Assistant Superintendent of Police. Otherwise the detention would be inviolation of Regulation 19(2) and therefore, not being in accordance withprocedure established by law, there would be violation of Article 13(1) of theConstitution which provides that no person shall be arrested except according toprocedure established by law. Therefore the arrests of M. C. Pieris (ApplicationNo. 146/92), M. D. Daniel (Application No. 147/92), S. H. Dayananda (ApplicationNo. 148/92), Atureliya Rathana (Application No. 149/92), Rev. ThalpitiyaWimalasena (Application No. 150/92). K. N. Perera (Application No. 151/92).Chandanaratna (Application No. 153/92), Ranawake (Application Nol. 154/92) areviolative of Article 13 (1) of the Constitution.
The Ratawesi Peramuna was an anti-government organisation. However, as amatter of law, merely vehement, caustic and unpleasantly sharp attacks on thegovernment, the President, Ministers, elected representatives or public officersare not per se unlawful.
Per Amerasinghe, J:
The right not to be deprived of personal liberty except according to aprocedure established by law is enshrined in Article 13(1) of the Constitution.Article 13(1) prohibits not only the taking into custody but also the keeping ofpersons in a state of arrest by imprisonment or other physical restraint exceptaccording to procedure established by law.'
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Channa Pieris and Others v. Attorney-General and Others
(Ratawesi Feramuna Case)
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‘Legitimate agitation cannot be assimilated with incitement to overthrowthe government by unlawful means. What the third respondent is supposed tohave heard, even according to the fabricated notes he has proferred, was acriticism, of the system of Government, the need to safeguard democracy, andproposals for reform."
'The call to 'topple' the President or the Government did not mean thatthe change was to be brought about by violent means. It was a call to bring downpersons in power by removing the base of public support on which they wereelevated.
If the throwing down was to be accomplished by democratic means, the factthat the tumble may have had shocking or traumatic effects on those who mightfall is of no relevance. It is the means and not the circumstances that have to beconsidered.'
The obvious purpose of Regulation 23 (a) is to protect the existing governmentnot from change by peaceable, orderly, constitutional and therefore by lawfulmeans, but from change by violence, revolution and terrorism, by means of
criminal force or show of criminal force.
There was no basis for arrest under Regulation 18 read with Regulation 23 (a)for there was nothing the 3rd respondent heard which suggested that thepetitioners were doing anything to overthrow the Government by means that werenot lawful.
Further the arrest could not have been made on the basis that Regulation 23(b) was being violated. There was not a word in the 3rd respondent's notes aboutmurdering or confining anyone.
The petitioners were also vaguely charged with attempting, aiding, abetting orconspiring to commit offences (Regulation 45) and of assisting offenders(Regulation 46). There were no offences under the Regulations which thepetitioners were alleged to be aiding, abetting or conspiring to commit. Thepetitioners were not persons arrested for committing an offence under Regulation23 (a). 23(b), 45 and 46.
In general, in order to make an arrest according to the procedure establishedby Regulation 18(1) on the basis of a reasonable ground of suspicion, clear andsufficient proof of the commission of the offence alleged is not necessary. A primafacie proof consists of admissible evidence. Suspicion can take into accountmatters that could not be put in evidence at all. Suspicion can take into accountalso matters which, though admissible, could not form part of a prima fade case.What the officer, making the arrest, needs to have are reasonable grounds forsuspecting the persons to be concerned in or to be committing or to have
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committed the offence. Were the circumstances, including the prevailing situationin the country at the time, objectively regarded (the subjective satisfaction of theofficers making the arrest is not enough) sufficient to induce the third respondentto reasonably suspect that the petitioners were concerned in or committing orhad committed an offence under the Regulations specified.
A reasonable suspicion may be based either upon matters within the officer'sknowledge or upon credible information furnished to him, or upon a combinationof both sources.
The offence which the 3rd respondent had in mind when he arrested thepetitioners was the offence of conspiracy as set out in Regulation 23 (a) thoughother offences are also mentioned in the Detention Order. In the case of conspiracyto overthrow the Government by unlawful means, the Government cannot beexpected to wait until the putsch is about to be executed, the plans have been laidand the signal is awaited or the bomb assembled and fuse ignited. If theingredients to the reaction are present, it is not necessary to await the addition ofthe catalyst. A single revolutionary spark may kindle a fire that, smouldering for atime, may burst into a sweeping and destructive conflagration, it cannot be saidthat the State is acting arbitrarily or unreasonably when it seeks to extinguish thesparks without waiting until the flame has been enkindled or blazed intoconflagration. It cannot reasonably be required to defer the adoption of measuresfor its own peace and safety until the revolutionary utterances lead to actualdisturbances of the public peace, but it may and it is expected in the exercise of itsduty, to suppress the threatened danger in its incipiency. If the Government isaware that a group aiming at its overthrow by unlawful means is attempting toindoctrinate its members and to commit them to a course whereby they will strikewhen the leaders feel the circumstances permit, action to save the nation from thephysical and political harm that might otherwise ensue is not only reasonable butalso the duty and a fundamental function of Government and its law enforcementagencies. In order to justifiably claim that the arrest were fitting in regard to time andcircumstances, the respondents were obliged to establish that the speech impelledthe hearers to imminent, unthinking lawless action to overthrow the Government.
Law enforcement officers cannot reasonably be required to measure thedanger from every such utterance in the nice balance of a jeweller's scale. At thesame time, sufficient regard must be had to the constitutional right of free speech.Here the Police had their suspicions and hoped that some evidence might turn upto make their suspicions reasonable. Detention for search has here not been inaccordance with the procedure established by Regulation 18(1').
The fundamental right of each and everyone of the petitioners to be free fromarrest except according to procedure established by law guaranteed under
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Channa Pieris and Others v. Attorney-General and Others
(Ratawesi Peramuna Case)
5
Article 13(1) of the Constitution has been violated. Neither the Secretary nor theAssistant Superintendent were empowered by Regulation 17 to detain thepetitioners for the purpose of completing investigations relating to the commissionof offences; Regulation 17(1) is not concerned with the investigation of offencesbut with measures aimed at the prevention of certain specified kinds of unlawfulbehaviour.
Although detention orders under Regulation 17 may be issued while a DetentionOrder under Regulation 19 or under the Prevention of Terrorism Act is in force, yetthere must be some justification for it. The evidence for arrests of the petitioners interms of Regulation 18(1), could not have led to the formation of an opinion that itwas necessary to detain the petitioners in terms of Regulation 17(1).
The failure to provide the petitioners with copies of the detention orders doesnot infringe any constitutional right.
The person being arrested must be informed of the reason for his arrest. Theobligation of the person making the arrest is to give the reason at the moment ofthe arrest, or where it is in the circumstances not practicable, at the firstreasonable opportunity.
The petitioners were not arrested and kept arrested in accordance with aprocedure established by law and they were not informed of the reason for theirarrest. While the arrest, holding in custody, detention or deprivation of personalliberty of a person pending investigation or trial does not constitute a punishmentby imprisonment and while holding a person in preventive detention has beenheld not to be punitive imprisonment violative of Article 13(4) of the Constitutionyet deprivation of personal liberty would amount to punitive imprisonment violativeof Article 13(4), where the person was never, or cannot any longer, be reasonablysaid to be held for purposes of investigation, trial or preventive detention as thecase may be.
The fact that Article 13(1) is violated does not necessarily mean that Article13(2) is therefore violated. Nor does the violation of Article 13(2) necessarilymean that Article 13(1) is violated. Arrest and detention, as a matter of definition,apart from other relevant considerations, are "inextricably linked". HoweverArticles 13(1) and 13(2) have a related but separate existence. Article 13(1) isconcerned with the right of a person not to be arrested including the right to bekept arrested except according to procedure established by law and the right tobe informed of the reasons for arrest, whereas Article 13(2) is concerned with theright of a person arrested to be produced before a judge according to procedureestablished by law and the right not to be further deprived of personal libertyexcept upon and in terms of the order of such judge made in accordance withprocedure established by law.
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The fundamental rights of the petitioners to be brought before the judge of thenearest competent court according to procedure established by law guaranteedby Article 13(2) of the Constitution were violated.
In regard to violations of Article 11 (by torture, cruel, inhuman or degradingtreatment or punishment), three general observations apply:
The acts or conduct complained of must be qualitatively of a kind that aCourt may take cognizance of. Where it is not so, the Court wifi notdeclare that Article 11 has been violated.
Torture, cruel, inhuman or degrading treatment or punishment may takemany forms, psychological and physical.
Having regard to the nature and gravity of the issue, a high degree ofcertainty is required before the balance oi probability might be said to tilt infavour of a petitioner endeavouring to discharge his burden of proving thathe was subjected to torture or to cruel, inhuman or degrading treatment
There has been here no violation of the fundamental rights guaranteed byArticle 11 of the Constitution.
The petitioners had no purpose of helping to make the Ratawesi Peramunaan instrument of terrorism or violence which would menace the peace and welfareof the State. They were considering matters of personal concern and wereanxious to mobilize public opinion to accept their views so that they might replacethose in power with other representatives who may give effect to their views. Thefundamental right of freedom of expression under Article 14(1) (a) of all thepetitioners (except of petitioner in SC Application No. 150/92) has been violated.
The right of association is not only guaranteed by the Constitution to protect thefreedom of intimate association but also as an indispensable means of preservingother individual liberties concerned with a wide variety of political, social, economic,educational, religious and cultural ends. In essence the petitioners' complaint isthat their right of association for the advancement of certain beliefs and ideas wasviolated by their arrest and detention. The Ratawesi Peramuna was not anorganization whose members or adherents were engaged in purposes prejudicial tonational security or the maintenance of public order or in other unlawful activities.The Peramuna was not a proscribed organization. No justification existed for theviolation of the petitioners’ associational rights relating to their expressive activities.The fundamental right of freedom of association guaranteed by Article 14(1) (c) ofthe Constitution was violated by the 3rd and 4th respondents in respect of all thepetitioners except the petitioner in SC Application No. 150/92.
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Channa Pieris and Others v. Attorney-General and Others
(Ratawesl Peramuna Case)
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List of cases referred to:
Wimalawardena v. Nissanka: SC Appeal 685/92 – SC Minutes of 09.09.93
De Silva v. Mettananda and Others: SC 158/87 – SC Minutes of 10.03.89
Piyasiri v. Fernando [1988] 2 Sri LR 173, 179
Rajapaksa v. Kudahetti: SC Application No. 52/70 – SC Minutes of 28.07.92
Jayakodyv, Karunanayake: SC Application No. 91/91 – SC Minutes of 18.11.92
Kumarasena v, Sub-Inspector Shriyantha & Others: SC ApplicationNo. 257/93 – SC Minutes of 23.05.94
Podiappuhamy v. Liyanage & Others: SC Application 446/93 – SC Minutes of
31.05.94
Lalanie & Nirmala v. De Silva & Others: SC 53/86 – SC Minutes of 24.05.89
Dissanayake v. Superintendent Mahara Prison: SC (Spl) 6/90 – SC Minutes of
28.03.91
Wijesiri v. Rohan Fernando & Others: SC Application 20/90 – SC Minutes of
28.07.92
Weerakoon v, Mahendra <5 Others: SC Application 36/90 – SC Minutes of29.07.91
Vidyamuni v. Jayatilleke: SC Application 852/91 – SC Minutes of 22.07.92
Wijewardena v. Zain: SC Application 202/87 – SC Minutes of 24.07.89
Sasanasiritissa Thero & Others v, De Silva & Others [1989] 2 Sri LR 356
Weerakoon v. Weeraratne: SC Application 42/92 – SC Minutes of16.11.92
Mohamed Faiz v. Attorney-General & Others: SC Application 89/90 – SCMinutes of 19.11.93
Shantha Wijeratne v, Vijitha Perera: SC Application 379/93 – SC Minutes of
02.03.94
Pieris v. The Commissioner of Inland Revenue (1963) 65 NLR 457,458
Kumaranatunga v. Samarasinghe: SC Application 121/82 – SC Minutes of03.02.83; (1983) 2 FRD 347, 355, 362,363
Fernando v. Attorney-General [ 1983] 1 Sri LR 374
Edirisuriya v. Navaratnam [1985] 1 Sri LR 100,114
Joseph Silva & Others v. Balasuriya & Others: SC Applications 112*115 of1987 – SC Minutes of 26.05.86
Gunaratne et al v. Cyril Herath & Wijesooriya Abeyratne and Others: SCApplications 96/97 and 97/87 – SC Minutes of 03.03.89
Wijesooriya v. Abeyratne & Others: SC Application 99/87 – SC Minutes of
03.03.89
Chandradasa & Kularatne v. Lai Fernando: SC Application 174 – 5/87 – SCMinutes of 30.09.88
Wickremabandu v. Herath & Others: SC 27/88 – SC Minutes of 06,04.90
Deniyakumburagedera Srlyani Lakshmi Ekanayake v. Inspector HerathBanda and Others: SC 25/91 (FR) – SC Minutes of 11.10.91
Dissanayake v. S. I. Guneratne and Others: SC Application 22/91 SC -Minutes of 11.10.91
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Gittow v. New York 268 US 652; 455 Ch. 625. 69L. Ed. 1138 (1925)
NAACP v Claiborne Hardware Co. 458 US 886 (1982)
Watts v. United States 394 US ?05 (1969)
Masses PublisNng Co. v. Patten 244 Fed. 535 (SDNY 1917)
New York Times Co. v: Sullivan 376 US 254, 84 S. Ch. 710, 11L. Ed. 2 Ed 686(1984)
Cohen v. California (1971) 403 US 15, S. Ch. 1789, 29 L. Ed. 2 Ed. 284
Joseph Perera v. A.G.: SC Application 107 – 109/86 SC – Minutes of 25.05.87
Dayasena Amaratunga v. P. Sirimal and Others: SC Application 468/92 – SCMinutes Of 08.03.93
Feiner v. New York 340 US 315; 71 Ch. 303, 95L. Ed. 295 (1951)
West Virginia State Board of Education v. Barnette 319 US 624, 63 S Ch.1178, 87L. Ed. 1628(1943)
Whitney v. California 274 US 357; 47S ct 641; 71L Ed 1095 (1927)
Mallawaratchi v. Seneviratne: SC Application 212/88 SC – Minutes of 28.09.89
Muttusamy v. Kannangara (1951) 52 NLR 324
Gunasekera v. Fonseka (1972) 75 NLR 246
Lundstron v. Cyril Herath and Others. SC Application 27/87 – SC Minutes of
29.04.88
Jayasuriya v. Tillekeratne and Others: SC Application 117/87 – SC Minutes of
06.10.88
Withanachchi v. Cyril Herath and Others: SC 144-45/86 – SC Minutes of
01.07.88
Yapa v. Bandaranayake [1988] 1 Sri LR 63
Weerakoon and Allahakoon v. Beddewela: SC Application 213/86 – SCMinutes of 11.12.90
Gamtath v. Silva and Others: SC Application 78/90 – SC Minutes of 27.08.91
Munidasa and Others v. Seneviratne and Others: SC Application 115/91 – SCMinutes of 03.04.92
Karunasekera v. Jayavardene and Others: SC Application 15/90 – SCMinutes of 06.05.90
Chandrasekeram v. Wijetupga: SC Reference No. 1-3/92 – SC Minutes of
29.06.92
Elasinghe v. Wijewickrema and Others: SC Application 218/92 – SC Minutesof 19.03.93
Nihallage Dona Ranjani v. Liyanapathirana and Others: SC Application784/92 – SC Minutes of 30.07.93
Baba Appu v. Adan Hamy (1900) 1 Browne's Reports 34
Ragunathan v. Thuraisingham: SC Application 158/88 – SC Minutes of
23.08.89
Shaaban Bin Hussein v. Chong Fook Kam [1969] 3 All ER 1626
Buhary v. Jayaratne (1947) 48 NLR 224
Dennis v. US 1951 341 US 495, 71 S. Ch. 857, 95L. Ed. 1157
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Channa Pierls and Others v. Attorney-General and Others
(Ratawesi Peramuna Case)
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Dumbell v. Roberts [1944] 1 All ER 326
Podiappuhamy v. Uyanage and Others: SC Application 446/83 – SC Minutesof 31.05.94
Premaratne and Somawathie v. K. D. Somapala: SC Application 68/86 – SCMinutes of 11.05.88
Nanayakkara v. Henry Perera [1985] 2 Sri LR 375
Kalyanie Perera and Sathyajith v. Siriwardena: SC Application 27/90 – SCMinutes of 11.03.91
Godagama v. Ranatunge: SC Application 138/92 – SC Minutes of 03.02.93
Jayaratne v. Tennakoon and Others: SC Application 10 and 18/89 – SCMinutes of 04.07.89
Fernando v. Silva and Others: SC Application 7/89 – SC Minutes of 03.05.91
Hirdaramani v. Ratnavale (1971) 75 NLR 67
Leelaratne v. Cyril Herath and Others: SC Application 145/86 – SC Minutes of
09.03.87
Fernando v. Kapilaratne and Others: SC Application 1/91 – SC Minutes of
10.12.91
Secretary of State v. Tameside [1976] 3 All ER 665, 671
Siriwardene v. Liyanage( 1983) 2 FRO 310,328, 329
Somasiri and Somasiri v. Jayasena and Others: SC Application 141/88 – SCMinutes of 01.03.91
Senthilinayagam v. Seneviratne [1987] 2 Sri LR 187
Jayatissa v. Dissanayake and Others: SC Application 74/88 – SC Minutes of
10.07.89
Lankapura v. P. D, A. Perera and Others: SC Application 80/88 – SC Minutesof 09.12.88
Pushpakumari and Jayawickrema v. Mahendra and Others: SC Application37/90 – SC Minutes of 28.01.91
DharmatiHeke v. Abeynaike: SC Application 156/86 – SC Minutes of 15.02.88
Christie v. Leacbinsky[t949] 1 All ER 567; [1947] AC 573
Mariadas Raj v. Attorney-General FR (Vol 2) 397, 403; [1983] 2 Sri LR 461
Walter v. City of Burmingham (1967) 388 US 307
Nallanayagam v. Gunatilleke [1987] 1 Sri LR 293
Gerstein v. Pugh 420 US 103, 95 S. Ch. 854, 43L. Ed. 2nd 54 (1975)
Scheisser Case – European Court on Human Rights Decision of 04.12.79
Skoogstrom Case-European Court of Human Rights Decision of 02.10.84
Mclyoff Case – European Court of Human Rights Decision of 26.10.84
Geekiyanage Premalal de Silva v. Rodrigo: SC Application 24/89 – SCMinutes of 05.09.90
Samanthilaka v. Ernest Perera and others: [1990] 1 Sri LR 318; SCApplication 65/88 – SC Minutes of 29.06 90
Sirisena and others v. Ernest Perera and Others: SC Application 14/90 – SCMinutes of 26.08.91
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Abeywickrema v. Dayaratne and others: SC Application 125/88 – SCMinutes of 12.07.89
Dayananda v. Weerasinghe and Others (1983) 2 FRO 292
Gurusinghe v. Kadurugamuwa: SC Application 133/87 – SC Minutes of
01.06.88
Liyanage v. Chandrananda and Others: SC Application 107/91 – SC Minutesof 02.02.92
Saranal v. Wijesooriya and Others: SC Application 39/87 – SC Minutes of
13.02.88
Kumarasinghe v. Attorney-General: SC Application 52/82 – SC Minutes of
06.09.92
Leo Fernando v. Attorney-General [1985] 2 Sri LR 541
Jayasirtghe v. Mahendran and Others [1987] 1 Sri LR 206
felmurugu v. Attorney-General (1980) 1 FRD 180.197-8,223
Samsan v. Leeladasa: SC Application 4/88-SC Minutes of 12.12.88
Siriyawathie v. Pasupathi and Jansz: SC Application 112/86 – SC Minutes of
28.04.87
Kamegam v. Jansz and Others: SC Application 100/87 – SC Minutes of
28.01.88
Lawless Case – European Court of Human Rights Decision of 07.14.61
Wemhoff Case – European Court of Human Rights Decision of 27.06.68
Neumeister Case – European Court ol Human Rights Decision of 27.06.68
Strogmuller case – European Court of Human Rights Decision of 10November 69
Matznetter Case – European Court of Human Rights Decision of 10,11.69
Ringeisen Case – European Court of Human Rights Decision of 16.07.71
Eckle Case – European Court of Human Rights Decision of 15.07.82
Foti and others – European Court of Human Rights Decision of 10.12.82
Corighano Case – European Court of Human Rights Decision of 10.12.82
Vallon Case – European Court of Human Rights Decision ol 03.06.85
Carr Case – European Court of Human Rights Decision of 30.09.85
Capuano, Bagetta and Milasi Case – European Court ol Human RightsDecision of 25.06.87
Lechner and Hess Case – European Court of Human Rights Decision of
23.04.87
Pathmasiri v. Illangasiri and others: SC Application 142/87 – SC Minutes ol
18.10.88
Shantha Wijeratne v. Vijitha Perera and Others: SC Application 379/93 – SCMinutes of 02.03.94
Namasivayam v. Gunawardene: SC Application 166/86 – SC Minutes of
24.09.87
Padmakanthi Dimbulagamuwa v. OIC Army Camp Matale and Others: SCApplication 10/91 – SC Minutes of 02.10.91
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Channa Pieris and Others v. Attorney-Genera/ and Others
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Karunaratne v. Rupasinghe: SC Application 71/90 – SC Minutes of 17.06.91
Rajapakse v. Kudahetti: SC Application 52/90 – SC Minutes of 28.07.92
O'Connor v. Donaldson 422 US 563,95S. Ct 2486,45 L. Ed. 2d 396 (1975)
State ex rel. Doe v. Madonna 295 N. W. 2d 356,363 n. 9 Minn (1980)
Jackson v. Indiana 406 US 715,95 S. Ct 1845,32 L Ed. 2d 435 (1975)
Humphrey v. Cady 405 US 504 92 S. Ct. 1048, 31 L Ed 394 (1972)
Addington v. Texas 441 US 418,99 S. Ct. 1804,60 L Ed. 2d
Winterp Case: European Court of Human Rights Decision of 24.10.1979
X v. UK: European Court of Human Rights Decision of 05.11.1981
Luberti Case: European Court of Human Rights Decision of 23.02.1984
Ashingdane Case: European Court of Human Rights Decision of 28.05.1985
Dalaguan v. Perera: SC Application 193/88 – SC Minutes of 13 September1989
Madera v. Weerasekera: SC Application 192/88 -• SC Minutes of 12September 1989
Alwis v. Raymond and Others: SC Application 145/87 – SC Minutes of 21July 1989
Manseer v. Seneviratne: SC Application 9/89 – SC Minutes of 29 September1989
IV M. K. Silva v. Chairman Fertilizer Co. [1989] 2 Sri LR 393
Vithanage Kumar Medagama v. Praneeth Silva and Others: SC Application914/92 – SC Minutes of 02 July 93
Ratnasiri and Kumarana v. Devasurendran and Others: SC Application 3 & 4of 91 – SC Minutes of 21 October 92
Gunasekera v. Kumara and Others: SC Application 191/88 – SC Minutes of3 November 1993
Amal Sudath Silva v. Kodituwakku [1987] 2 Sri LR 119
De Silva v. Amarakone: SC Application 49/88 – SC Minutes of 12 February1989
Lankapura v. Lathiff: SC Application 112/88: SC Minutes of 26 April 1989
Ariyatillake v. Thalawela and Others: SC Application 137/92 – SC Minutes of25 October 1993
Ireland v. U.K. – European Court of Human Rights Decision of 18 January1978
Tyrer Case – European Court of Human Rights Decision of 25 April 1978
Campbell and Cosans Case – European Court of Human Rights Decision of25 February 82
Hobbs v. London & S.IV Railway (1B7S) LR 10 QB 111,121
Gunawardene v. Perera & Others [1983] 1 Sri LR 305
Thadchanamoorthi v. A.G. & Others (1980) 1 FRD 129,136,137
Vijayakumar v. Gunawardena: SC Application 173/86 – SC Minutes of 24Sept. 1987
Vitharana v. A.G. and Others; SC Application 209/86 – SC Minutes of 04May 1990
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Hameed v. Ranasinghe and Others [1990] 1 Sri LR 104
Seneviratne v. Karunatilake and Others: SC Application 21/90 – SC Minutesof 22 January 1991
Safer v. Baxter [1951] Probate 35
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Ratnasara Thero v. Udugampofa [1983] 1 Sri LR 461
Abeyratne v. Edison Gunatilleke and Others: SC Application 270/92 – SCMinutes of 26 October 1992
United States v. Carotene Products Co. 304 US 144. 58 S. Ct. 778, 82 L Ed1234 (1983)
Brandenberg v. Ohio 395 US 444, 89 S. Ct. 1827, 23 L. Ed. 2 Ed. 2d 430(1969)
Hess v. Indian*414 US 105. 94 S. Ct. 326 – 38 L. Ed. 2d 303 (1973)
Gooneratne v. Oe Silva and die A.G.: SC Application 49/87 – SC Minutes of27 Aug. 1987
Red Lion Broadcasting Co. v. FCC 395 US 367 (1969)
Abrams v. United States 250 US 616, 624, 40 S. Ct. 17, 20, 63 L. Ed. 1173.1178(1919)
Schenck v. United States 249 US 47, 39 S. Ct. 247 – 63 L. Ed. 470 (1919)
Near v. Minnesota 283 US 697,51 S. Ct. 625 – 75 L. Ed. 1357 (1931)
Yasapala v. Wickremasinghe (1980) 1 FRD 143, 155
Abeywardene v. Perera: SC Application 92/91 – SC Minutes of 23 August1989
Chaplinsky v. New Hampshire 315 US 568 (1942)
Cantwell v. Connecticut 310 US 296 (1940)
Palko v. Connecticut 302 US 319, 327 – 658 S. Ct. 149, 152 – 82 L. Ed. 288(1937)
NAACP v. Alabama 357 US 449, 78 S. Ct. 1163, L. Ed. 1488 (1958)
NAACP v. Button 371 US 415; 83 S. Ct. 328,9 L. Ed. 405 (1963)
Roberts v. United States Jayacees 104 S. Ct. 3244,82 L. Ed. 2d 462 (1984)
Mudiyanselage Tillekaratne Bandara Ekanayake v. Edison Gunatilleke andtheA.G.: SC Application 1007/92 – SC Minutes of 16 November 1993
Applications for infringement of fundamental rights
R. K. W. Goonesekete with Methsiri Coorey for Petitioner in SC Application Nos.
146/92, 149/92 and 154/92.
Ms. Manouri Muttetuwegama for the petitioners in SC Applications Nos. 147/92
and 148/92.
C Swarnadhipathy for the petitioners in SC Applications Nos. 151/92 and 153/92.
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J. C. Weliamuna for the petitioner in SC Application No. 152/92.
Suranjith Hewamanna with J. C. Weliamuna for the petitioner in SC ApplicationNo. 155/92.
D. P. Kumarasinghe, Deputy Solicitor*General for the Respondents.
Cur. adv. vult.
17th June, 1994.
AMERASINGHE, J.THE PARTIES AND THE MANNER OF HEARING ANDDETERMINATIONSixteen persons in ten applications to this Court complained thattheir fundamental rights guaranteed by the Constitution were violated.
Nine of them filed separate applications: Mahinda.Channa Pieris inApplication No. 146/92; M. D. Daniel in Application No. 147/92;Singapulli Hewage Sunny Dayananda in Application No. 148/92;Athureliye Rathana (Ranjith) in Application No. 149/92; Rev. ThalpitiyeWimalasara in Application No. 150/92; Kuruwitage Nandana Perera inApplication No. 151/92; Jayasinghe Mudiyanselage Janaka PriyanthaBandara in Application No. 152/92; Pallimulle Hewa GeeganagePradeep Chandanaratne in S.C. Application No. 153/92; andRanawake Arachchige Patali Champika Ranawake in S.C.Application No. 154/92.
Seven others collectively filed S.C. Application No. 155/92. Theseven persons were Avalikara Galappathige Muditha MalikaWimalasuriya, Gileemalege Janaka Priyantha Dayaratne, KarunaratneParanawithana, Weerasekera Mudalige Anura Weerasekera, Rev.Kalupahana Piyarathna, Rev. Ambalanthota Premarathana, and Rev.Kitulgala Upali.
The First and Second respondents in each of the ten applicationswere respectively the (1) Hon. Attorney-General and (2) Inspector-General of Police.
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The third respondent in each of the ten applications was Inspectorof Police Ekanayake Mudiyanselage Karunatilake, the Officer-inCharge of the Wadduwa Police Station, who was identified as I.P.Karunatilake, Officer-in-Charge, Police Station. Wadduwa in all theapplications save one: In application No. 149/92 he is referred tosimply as “The Officer-in-Charge. Police Station, Wadduwa,’However, in paragraph 1 of his affidavit dated 9th August 1992, filedin Application No. 150/92; and in paragraph 1 of his affidavit dated24 August 1992 filed in Application No. 146/92; in paragraph 1 of hisaffidavits dated 9th September 1992 filed in Application Nos. 147/92;148/92; 149/92; 151/92; 152/92; 153/92; 154/92 and 155/92Ekanayake Mudiyanselage Karunatilake identifies himself as theOfficer-in-Charge of the Wadduwa Police Station and as the ThirdRespondent.
The Fourth Respondent in each of the ten applications was Sub-Inspector Galkanda Arachchige Sunil Piyaratne of the WadduwaPolice who was identified as “Sub-Inspector Piyarathana of WadduwaPolice" in all the applications save one: In application No. 149/92 thefourth respondent is named as ‘Sub-Inspector Pathiratne* ofWadduwa Police. However, in paragraph 1 of his affidavit dated 9August 1992 filed in application No. 150/92; and in paragraph 1 ofhis affidavit dated 24th August 1992 filed in application No. 146/92;and in paragraph 1 of his affidavit dated 9th September 1992 filed inapplication Nos. 147/92; 148/92; 149/92; 151/92; 152/92; 153/92;154/92 and 155/92, Galkanda Arachchige Sunil Piyaratne identifiedhimself as the Fourth Respondent.
The Fifth Respondent in Applications Nos. 146/92; 147/92; 152/92and 155/92 is the Officer-in-Charge, Security Coordinating Division,Colombo.
The Fifth Respondent in Applications Nos. 149/92 and 151/92 isthe Officer-in-Charge, Police Station, Maradana.
The Fifth Respondent in Application Nos. 148/92; 150/92; 153/92and 154/92 is the Officer-in-Charge, Police Station, Pettah.
The Officer-in-Charge of the Police Station Maradana and theOfficer-in-Charge of the Police Station Pettah are named as the Sixthand Seventh respondents respectively in Application No. 155/92.
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THE MATTERS FOR CONSIDERATIONThe applicants in each of the ten applications were granted leaveto proceed for the alleged infringements of their rights guaranteed byArticles 11, 13(1), 13(2), 14(1) (a) and 14(1) (c) of the Constitution.Those are the matters for consideration. However I must clear therecords of persisting and misleading errors.
ARTICLES 12,14(1) (h) AND 14(1) (g) NOT VIOLATEDThe petitioners in their petitions and amended petitions complainof the infringement of the right of “associating with others" in their“lawful occupation” and being deprived of their “freedom ofassociation as provided for in the Constitution.” In their amendedpetitions the petitioners state that their constitutional rights underArticles 14(1) (a), 14(1) (c) and 14(1) (h) have been violated.
Article 14(1) (h) is concerned with the right of a citizen to freedomof movement and of choosing his residence within Sri Lanka. Leaveto proceed was not sought or granted for the alleged violation ofArticle 14(1) (h) at the stage of the hearing when leave to proceedwas considered.
Why were alleged violations of Article 14(1) (h) repeated in theamended petitions especially when leave to proceed was not grantedin respect of the alleged violation of that provision?
The right to engage oneself in association with others in any lawfuloccupation is a right guaranteed by Article 14(1) (g) of theConstitution. Leave to proceed under Article 14(1) (g) was not soughtor granted by the Court at the stage of the hearing when leave toproceed was considered.
Why was an oblique reference to an alleged violation of Article1^(1) (g) repeated In the amended petition? Additionally, M. D. Daniel147/92, Dayananda 148/92, Nandana Perera 151/92, Bandara152/92, Chandanaratne 153/92, Ranawake 154/92; andWimalasuriya, Dayaratne, Paranavithana, Weerasekera, Piyarathana,Pemarathna and Kitulgala Upal! in 155/92 in their petitions and
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amended petitions complain of the violation of Article 12(2) of theConstitution on account of their political opinions.
At the hearing when the matter of leave to proceed was beingconsidered learned Counsel for the petitioners did not seek leave toproceed under Article 12 and leave to proceed under Article 12 wasnot granted.
Since the amended petitions contain averments directly allegingthe violation of Articles 12 and 14(1) (h) and obliquely alleging theviolation of Article 14(1) (g), and no evidence in support of suchviolations have been adduced and no submissions made during thehearing in support of such violations, I declared that Articles 12,14(1) (h) and 14(1) (g) have not been violated by the respondents inrespect of any of the petitioners in the matters before this Court.
CONSOLIDATION OF MATTERSIt was agreed by Counsel for the petitioners and respondents thatthe ten applications concerning the sixteen persons complaining ofthe violations of their fundamental rights under Articles 11, 13(1),13(2), 14(1) (a) and 14(1) (c) and the evidence adduced should beconsidered together and that a single order of this Court should bindthe parties and be sufficient for all purposes.
Mr. Goonesekere and Ms. Muttetuwegama for the petitioner, and Mr.Kumarasinghe tor the respondents addressed us in broad, generalterms. Learned Counsel for the Petitioners stating that the cases were"not the same. There are differences”, left the Court to discover the"differences' and unscramble the evidence submitted in thesometimes glib, and often marginally truthful, averments in theaffidavits and counter-affidavits filed by the 16 applicants in their tenpetitions and supporting affidavits from others and in the equallyunsatisfactory affidavits and supporting documents of the respondents.
I wish to draw the attention of attorneys-at-law to their graveprofessional responsibilities in the preparation and submission ofaffidavits, especially in matters in which a Court is called upon toarrive at a determination based solely upon the evidence adduced inaffidavits, I would also draw the attention of everyone concerned,
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including Government officials, to the fact that stating wrong, falseand especially purposely untrue statements in affidavits is a matterthat could lead to criminal proceedings against them.
THE RATAWESI PERAMUNA
The petitioners were participants in a "movement” called theRatawesi Peramuna formed in November 1991 under the leadershipof Athureliye Rathana, the Petitioner in Application No. 149/92.
In his affidavit (2.2 – 2.4) Rathana says he became a monk in 1976and that he played an active and prominent role when he was at theUniversity at Dumbara and Peradeniya between 1984 and 1986 andthat he was the organizer of a protest march to Kandy. Themovement, he says (2.5), was intended to "unite the democraticopposition of the country.”
The movement was believed by some of the petitioners to be ‘thebase for a broad political" (eg. see paragraph 2.1 of the affidavitdated 15th April 1992 of Wimalasuriya in Application 155/92) or“agitational" (eg. see para. 4.3 of of the affidavit dated 14th April1992 of Seneviratne in Application 146/92) “front and not controlledby any party."
Champika Ranawake, the Petitioner in Application No, 154/92 inparagraph 3.4 of his affidavit dated 15th April 1992 states that it wasan “anti-government pressure group which would not have any biasto existing political parties." Ranawake, who was a founder-memberof the Peramuna, (154/92, 2.2 – 3.4) says that, as a Universitystudent, he took an active part in anti-JVP activities, but, finding “theguns of both the JVP and the Government trained towards” his group,ceased to participate in politics after he was arrested in September.1989. He continued, however, to write articles to the Lakmina andRavaya. He began his activities again with what he called "the feverof the Impeachment Motion in 1991”, and, with Rathana and others,formed the Peramuna to bring together "intellectuals and otherprofessionals" to formulate policies that would remain despitechanges of Government, and to “prevent the youth from beingpushed to violent politics.”
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Although it would seem that eight of the sixteen petitioners wereuniversity students (See Wimalasuriya 155/92, 4.8) and that themovement was said to have had the support of university students(See Bandara 152/92, 2.1 and Nandana Perera 151/92, 2.1) themembership of the movement was not confined to university students.
For instance, there was Malinda Seneviratne, the petitioner in SCApplication 146/92. He had, according to paragraphs 2.1 – 4.3 of hisaffidavit, read the ‘fundamental texts of Marxism" while he was atschool, and in his political thinking was “influenced to a large extent"by the political views of his father who he says was “a Trotskyite as anundergraduate." He was admitted to the Dumbara Campus in 1985but proceeded to the United States in 1987 under an ExchangeProgram and later read Sociology at Harvard University where hegraduated in 1991. His undergraduate dissertation was "Students asAgents of Revolution: The Case of the Sri Lanka Student Movement."In January 1992 he was employed by the Peradeniya University asan English Instructor of the Medical Faculty. When Rathana put it tohim, he thought that the formation of the Ratawesi Peramuna as ‘ abroad agitational front” was ‘a good idea” and attended two of itsmeetings and met Rathana and others at the "open canteen" of theUniversity at Colombo at about 6 p.m. on 26th February 1992 andagreed to meet at the Kawduduwa temple.
The matters engaging the attention of the Peramuna were widerthan those purely concerning the literati: M. D. Daniel, a CommitteeMember, says (147/92, 2.1) he had, at a meeting of the Peramuna atthe office of the Leader of the Opposition, voiced concerns about theplight of farmers. Nor was the Peramuna intended to be limited inmembership. Rathana (149/92, 2.5) says that the aim was "to bringtogether the alternative forces in the opposition – intellectuals,students, artists, youth, workers, farmers etc." It appears fromparagraph 5 of the affidavit of Champika Ranawake that he had ascheme to restructure the Peramuna on the lines of a political party.
Several meetings of the members of the movement were held anda District Branch was formed at Matara. According to Seneviratne inhis affidavit (146/92, 4.3) the Peramuna organized a "series of public
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seminars and an exhibition of posters depicting human rightsviolations by the Government and the JVP in Matara on 26th, 27thand 28th of January." Seneviratne and many of the other petitionersalleged that "a group of armed men had stolen some of the posters.”(Seneviratne 146/92, 4.3: Daniel 147/92, 2.2; Dayananda 148/92,3.2;Rathana 149/92, 2.6; Nandana Perera 151/92, 2.2; Bandara 152/92,2.2; Chandanaratne 152/92, 2.1; Ranawake 154/92, 3.6; andWimalasuriya 155/92, 2.2).
The Peramuna it is said came to be criticized by “pro-Anuraelements within the SLFP" as being a “group formed to promoteChandrika": (Seneviratne 146/92, 4.4; M. D. Daniel, 147/92, 2.3;Dayananda 149/92, 3.3; Rathana 149/92, 2.7; Wimalasara 150/92, 2.3;Nandana Perera 151/92, 2.3; Bandara, 152/92, 2.3; Chandanaratne153/92,2.2; Ranawake 154/92,3.7; Wimalasuriya 155/92,2.3).
It was also said that the Peramuna lacked money and organizationand that a moderate stance should be taken on issues such as “theethnic conflict”, "affiliated university colleges” and "peoplization”:(Rathana 149/92, 2.8; Nandana Perera 151/92, 2.4; Bandara 152/92,2.4; Ranawake 154/92, 3.8; Wimalasuriya 155/92, 2.4).
There was also the return of the JVP into the political arena whichthey regarded as a matter for concern. I shall deal with this aspect ofthe matter in greater detail later on.
The Peramuna had problems, in order to consider the “crises”encountered by the Peramuna, Rathana, the petitioner in application149/92, (who had earlier been appointed ‘convener' of thePeramuna), summoned a meeting.
THE MEETING OF THE RATAWESI PERAMUNA ON 27FEBRUARY 1992The meeting was held on 27th February 1992 at the Kawduduwatemple. It commenced at about 6 a.m.
The current political climate, various criticisms of the RatawesiPeramuna, the disruption in January 1992 of the exhibition of posters
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in Matara, and the resurgence of the JVP were discussed, after whicha manifesto was introduced by Champika Ranawake, the Petitioner inApplication No. 154/92.
After a discussion, the meeting was adjourned at about 1 p.m. toenable them to take lunch. (See the affidavits of Seneviratne 146/92,5.2 & 5.3; Daniel 147/92, 2.4; Dayananda 148/92, 3.4; Rathana149/92, 4.9; Nandana Perera 151/92, 2.5; Bandara 152/92, 3.3;Chandanaratne 153/92, 2.4; Ranawake 154/92, 4.1; andWimalasuriya 155/92, 3.3).
THE TELEPHONE CALL
Document XI filed by the Third Respondent in support of hisaffidavit resisting each application is a ‘Message Form". It is dated
and the time of receipt is stated to be 13.50 hours. Themessage is said to have been received at Wadduwa Police Station.In the “From" column, it is said to have been transmitted by “aninformant who did not state his name." The message was this:"Today, there is a meeting of the Janatha Vimukthi Peramuna, allparticipants being students of the Colombo University, under theleadership of Champika Ranawake. Inform the Officer-in-Charge."
THE CIRCUMSTANCES OF THE ARREST – TAKING INTO THECUSTODY OF THE LAW
According to the third respondent in his affidavits (of 9th August1992, paragraph 5 in respect of SC Application 150/92; 24th August1992, paragraph 5 in respect of SC Application 146/92; 9thSeptember 1992 paragraph 4 in respect of Applications Nos. 147/92,149/92 and 152/92; 9th September 1992 paragraph 5 in respect ofApplications Nos. 148/92, 151/92, 153/92, 154/92 and 155/92), on
at 1.50 p.m. an anonymous telephone call was received atthe police station that a "meeting of the Janatha Vimukthi Peramunawas being held behind closed doors at the Kawduduwa Temple andthat the participants are University students, led by one ChampikaRanawaka. I annex herewith a true copy of the telephone messagemarked "XI". On receipt of this information, I went to the temple with a
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party of police officers. I stood outside the closed room and listenedto the discussions that were taking place. I made a note of the part ofthe discussion that I could hear. I annex hereto a photocopy of mynotes marked ,IX2". There were about 15 participants. Upon listeningto the speeches, I formed the impression that they were engaged in aconspiracy to overthrow the Government. As such, I tapped at thedoor and got it opened and entered the room where the discussionwas taking place and having explained the charge against thesuspects, took them into custody….”
The fourth respondent in his affidavits (of 9th August 1992 inApplication 150/92; 24th August 1992 in Application 146/92; of 9thSeptember in applications 147/92; 148/92; 149/92; 151/92; 152/92;153/92 and 154/92) in paragraph 3 admits being a member of thepolice party that arrested the petitioners; and in paragraph 4 statesthat he had read the affidavits of the Third Respondent andassociates himself with what the Third Respondent had said as being"true and accurate”. In Application No. 155/93 the FourthRespondent in his affidavit dated 9 September 1992 states inparagraph 3 that he was a member of the police party that arrestedthe petitioners; and, in paragraph 6, that he had read the affidavit ofthe Third Respondent and associates himself with the averments ofthe Third Respondent as being “true and accurate".
Document X2 filed by the Third Respondent was supposed to be acontemporaneous record of what he and the Fourth Respondentmade in their notebooks and later pasted in the Minor Crimes (sic.)Information Book at 17.40 hours. According to the ThirdRespondent's notes, in response to the phone call, he ‘arrived at theKawduduwa temple at 14.20 where a secret meeting was being heldbehind closed doors." He says he “stood near a window andlistened. There were several priests and about ten young personsseated on the ground in a circle. One of the young men was standingand addressing them. Now I am recording what he is saying. If thisautocratic system of administration continues, before another twentyyears our country will be completely destroyed. The system whichhas enabled Premadasa to rule autocratically must be abolished.Premadasa is waging war with Prabhakaran. This must be stopped.The proposal to set up Universities at a District Level will devalue the
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status of graduates and leave them destitute. Because of bickering inthe opposition Premadasa’s power will grow. The youth cannot permitthis expansion of power. The country must be rid of autocratic rule.We must under the guise of the Ratawesi Peramuna take this struggleforward, go S&rf <50Oj8£)0:x3Czrf 3®® e<5fflecj Jjuzrf taG
ytjO SaSsiOo. o®© 66o eodgSO edcoe S8SOSo
We must make immediate preparations to topple theGovernment. For that purpose we need to strengthen ourorganizational structure. Therefore we have assembled todayrepresentatives of all the Universities. We must set up a Governmentwhich will remove problems pertaining to the economy, education,administration and culture. Under such a system of Government 200Village and Provincial Governments controlled by a CentralGovernment is proposed. Above the Central Government will be abody of persons learned in various fields. Under their direction a justand orderly administration will be established. In this way thefreedom of the mass media will be established. In this wayfundamental human rights will be given and it will become possible toremove harrassment. He went on talking. Then a priest rose andinquired whether there were any suggestions or new proposals oropposition to the proposed scheme of action. The lack of oppositionby anyone was signified by their silence, said the priest. At this time Iunderstood that there was a conspiracy against the Government.Now I proceed to take steps to make arrests.”
The next entry by the third respondent in document X2 is dated27.03.93 and is stated to have been recorded at 14.50 hours “afterthe arrests were made". The statement goes on to say that the ThirdRespondent knocked at the door which Rev. Thalpitiye Wimalasaraopened. He explained the charge about the conspiracy against theGovernment, to each of the persons arrested separately, investigatedeach person separately, ascertained that there were no ‘externalinjuries" in respect of each person, and took various books anddocuments (which he refers to by title and author) for furtherinvestigations, after making a written inventory of the papers andpages in each book or document. The report says that nothing elsethat was “relevant to the case" was found.
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The final entry in X2 is the statement of the Fourth Respondent,Sub-Inspector Piyaratne, entered at 17.50 hours. It is as follows: Onthe information given to me by the Officer-in-Charge, I arrived atKawduduwa temple at 14.40 hours. Having informed me that a secretmeeting was taking place in the "Simamalake” and that he waslistening at a window he advised me to listen at the other window.When I went to the other window and looked, I saw about ten youngpersons and several priests seated on the ground. A young personwho was speaking said “if the autocratic rule we have continues forabout another 20 years our country will be completely destroyed.Therefore another system of Government must be introduced afterchasing away (oaten autocratic Premadasa. Because ofbickering Premadasa's power will grow. We cannot possibly allowPremadasa's autocratic rule to go on. We must under the guise of theRatawesi Peramuna (dOi^G <sa6p<& gcozCzi) take this revolutionarystruggle (cdme<J) forward. Firstly fundamental rights and theGovernment must be toppled (gOSsaai ©amp cGSODStuS ©a d®9nc&zn o sodgo gs®©). For that end you must remember liveswill have to be sacrificed." And so on, the speaker said. Then a priestrose and inquired whether in respect of the proposals there weresuggestions or opposition or doubts. Since all those present weresilent, it appeared that there was no opposition. At this time, on asignal from the Officer-in-Charge, we forced our way into theSimamalakaya. The Officer-in-Charge arrested the person who madethe speech. The Officer-in-Charge examined the books anddocuments and took charge of them and on the orders of the Officer-in-Charge the premises were searched for weapons. There werenone. While I am a witness for the Officer-in-Charge I am nowproceeding with the suspects to the station."
Although the Third Respondent states in his affidavits that hetapped at the door and had it opened, his so-called notes say thatwhen he formed the opinion that there was a conspiracy, he tooksteps to arrest the petitioners. If getting the door opened was a stepin the process of arrest, it is not supported by anyone. Even Piyaratnethe Fourth Respondent fails to support him. The notes of the FourthRespondent state that when he received a signal from the ThirdRespondent the police party forced their way into the room (ebOdo#)and the Third Respondent arrested the person who made theaddress and the others. According to the Fourth Respondent the
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third respondent then examined and took over documents andordered a search of the premises for weapons. No mention is madeof explaining charges, or interrogation, or examinations for externalinjuries, referred to by the Third Respondent.
The Third and Fourth respondents in their affidavits state that theystood at two windows, making notes. If, as the third respondentstates in his notes, the petitioners were seated in a circle, then,wheresoever the two officers were standing near two windows,peeping in from time to time, as they must have in order to have beenable to record as they say they did, the number of persons present,in order to be able to have seen that there were young persons andpriests, how they were seated and who was speaking at a given time,some of those facing the windows would surely have seen theofficers and alerted the others and stopped the discussions? Andthen, did no one hear the approaching police vehicles?
If the Third Respondent believed there was “a conspiracy tooverthrow the Government”, necessitating the immediate arrest anddetention of the petitioners, is it not rather strange that he chose topaste his notes in the Information Book pertaining to Minor Offencesrather than in the book reserved for Grave Crimes? I referred to thisduring the course of the arguments, but the learned Deputy Solicitor-General offered no explanation.
The Third Respondent in his notes states that in respect of eachand every one of the sixteen persons arrested, he explained thecharge of conspiracy, investigated, and ascertained that there wereno external injuries. According to his notes, the tap on the door wasat 14.30 hours. He had completed the arrests after explaining thecharges, investigations and so on by 14.50 when he made thesecond entry in his notes giving details of the sixteen arrests. Thismeans that, in respect of each suspect, in about 75 seconds heexplained the charge, interrogated the person and examined him forexternal injuries. In fact, the Third Respondent must have had muchless time for all that, since between 14.30 and 14.50 hours, accordingto his notes, he had seized several books, and documents,ascertaining and noting the titles, authors, number of papers as wellas pages in each of them!
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The Police message XI which the Third Respondent produceddoes not refer to “a secret meeting" behind “closed doors” at alt. Thisseems to have been introduced in the Third Respondent’s affidavitsto give some support to his conspiracy theory. Someone had to openthe "closed doors”. So. the incumbent of the temple, Wimalasara,was supposed to have done this. However, Wimalasara was in ill-health and asleep in his residential quarters and brought by some ofthe officers to the place where the others were. (Cf. the affidavit ofJayalin Silva dated 3 November 1992 filed by the Petitioner inApplication 150/92; Paragraph 2.3 dated 15 April 1992 of Rev.Wimalasara filed in Application 150.92).
The Third Respondent heard, it seems a great deal more than thefourth respondent, but the Fourth Respondent happened, it seems, tohave heard and recorded in more or less the same words all the keystatements attributed to the speakers by the third respondent. Was itsimply a matter of discernment? A comparative examination of the“notes" of the Third and Fourth respondent leads me towards theconclusion that the fourth respondent simply copied a part of what thethird respondent had invented and made available to him. His clumsyattempt at variation (for example, his attempted variation of the thirdrespondent's explanation of the increase in Premadasa’s autocraticpowers on account of the problems of the opposition; and thetelescoping of the third respondent's notes relating to the call to topplethe Government into the supposed statement that the freedom of thenews media and fundamental rights will be secured, resulting in theFourth Respondent's strange version that there was advocacy not onlyto topple the Government but that fundamental rights also should bedethroned!) suggests that X2 is a sham – a deceptive and worthlessdocument fabricated to provide a justification for the arrest of thepetitioners based solely on a misconception of what it meant to be amember of the Janatha Vimukthi Peramuna on 27th February, 1992. Ifthe petitioners' are to be believed, the Third and Fourth respondentsreally heard nothing because the meeting had not yet been resumed.Were the notes a concoction by the Third Respondent to provide ajustification for an accusation of conspiracy when it dawned on themthat it was not an offence to be a member of the JVP and that in anyevent the persons arrested were not members of the JVP. ?
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If so. it is not the first time this kind of thing has happened.Kulatunga, J. in Wimalawardena v. Nissankareferred to the practiceof police officers ‘nonchalantly making false entries and fabricatingevidence to cover up their illegal acts," and drew attention to the factthat police officers seemed to be immune to ordinary liability incjrcumstances in which ordinary citizens might have been otherwisedealt with. Reference was made to the “self-serving notes” of Policeofficers in De Silva v. Mettananda and Others™. The ThirdRespondent, especially by interrogating Chandanaratne (153/92para. 3.4) could well have obtained information regarding somebroad areas of concern and matters that were talked about in themorning to form the basis of “notes".
However, I shall assume that the statements purported to havebeen recorded by the Third and Fourth respondents were in factmade in order to consider the case of the respondents in the light oftheir best showing.
VIOLATIONS OF ARTICLE 13(1) OF THE CONSTITUTION:MATTERS FOR CONSIDERATIONThe petitioners state that their fundamental rights guaranteed byArticle 13(1) of the Constitution were violated.
Article 13(1) states that ‘No person shall be arrested exceptaccording to procedure established by law. Any person arrested shallbe informed of the reason for his arrest."
There is no dispute in the matters before us that the petitionerswere taken into the custody of the law. The problems raised inPiyasiri v. Fernando1™ and Rajapaksa v. Kudahettiw ascertainingwhether the petitioners were deprived of their personal liberty do nottrouble us in the matters before us.
The question then is whether the two rights set out in Article 13(1).namely, (1) the right to be free from arrest except according toprocedure established by law; and (2) the right to be informed of thereason for arrest, have been violated. (Cf. Piyasiri v. Fernando)*3*.
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ARREST – TAKING INTO CUSTODY – NOT ACCORDING TOPROCEDURE ESTABLISHED BY LAW – SOME GENERALOBSERVATIONS
Ordinarily, in terms of the Code of Criminal Procedure, where aperson is alleged to have committed an offence, the complaintagainst him and the offence it constitutes are set out in writing by theMagistrate with reference to the alleged offence and he is summonedto appear before the Magistrate at a specified time and place toanswer the complaint and be further dealt with according to law. Ifthe person does not appear, the Magistrate may issue a Warrant sothat the person may be brought before the Court by the personauthorized by the Warrant to answer the complaint and offence setout in the Warrant of arrest. Further, in certain circumstances, uponoath being made substantiating the matter of a complaint, theMagistrate may order that a person be apprehended forthwith andbrought before him to answer the complaint and to be further dealtwith according to law.
However, in certain other special circumstances, a person may bearrested without a Warrant. The procedure generally established bylaw for arresting a person without a Warrant are set out in Chapter IV B(Sections 32-43) of the Code of Criminal Procedure. Where a person isarrested without a warrant otherwise than in accordance with theseprovisions, Article 13(1) of the Constitution will be violated. (Jayakodyv. Karunanayake(5) See also Kumarasena v. Shriyantha and Others,w;Podiappuhamy v. Liyanage and Others m.
It was common cause that the petitioners were arrested without aWarrant.
The Third and Fourth respondents do not in their affidavits say thatthe arrests were made in accordance with the provisions of the Codeof Criminal Procedure. However, that does not necessarily mean thatthe respondents were in breach of Article 13(1) of the Constitution, forthe arrests could have been made in accordance with some otherprocedure established by law.
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In the written submissions filed by Counsel on their behalf, therespondents state that, after the arrests, the petitioners were “taken tothe Wadduwa Police Station and detained under the EmergencyRegulations." The position of the respondents is that, having actedunder the Emergency Regulations, they made the arrests inaccordance with a procedure established by law and therefore didnot violate Article 13(1) of the Constitution.
Article 15(7) of the Constituion provides that the exercise andoperation of certain fundamental rights declared and recognized bythe Constitution, including those referred to in Article 13(1) and 13(2),shall be subject to such restrictions as may be prescribed by law inthe interests, among other specified things, of national security andpublic order; and “law", for the purpose of paragraph 7 of Article 15,is said to include regulations made under the law for the time beingrelating to public security.
The law relating to public security in force at the time relevant tothe matters before us was the Public Security Ordinance (Cap. 40) asamended by Act No. 8 of 1959, Law No. 6 of 1978 and Act No. 28 of1988 under which various Regulations have been made from time totime.
It is unhelpful to simply say, as the respondents do, that thepetitioners were arrested under “the Emergency Regulations” forthe simple reason that a bewildering mass of emergency regulationsmade under the Public Security Ordinance covering a wide range ofmatters, including, for instance, the Adoption of Children (606/6 of18.4.90 and 730/8 of 1,9.92), the possession and control of CeylonCold Stores (604/10 of 6.4.90, 612/12 of 6.2.90, 640/18 of 14.12.90,660/5 of 30.4.91, 664/8 of 31.5.91, 669/9 of 2.7.91), Edible Salt (635/7of 7.11.90), Private Omnibuses (653/22 of 15.3.91, 692/8 of10.12.91), School Developmewnt Boards and Provincial Boards ofEducation (701/12 of 12.2.92 – the references are to Gazettenumbers and dates of publication), have nothing to do with thearrests and detentions in question. Moreover, significant changes ofthe Regulations take place from time to time. When a petitioner statesin an application under Article 126 of the Constitution that hisfreedom to be at liberty, unless he is arrested according to procedure
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established by law, has been denied, it is incumbent on the personmaking the arrest to precisely indicate the procedure under which thearrest was made. Additionally, for reasons I shall explain, it isdesirable that certified copies of the relevant regulations should befiled by the respondents.
VIOLATION OF ARTICLE 13(1) BY FAILURE TO ACT INACCORDANCE WITH PROCEDURE ESTABLISHED BYREGULATION 19(2)
The Third Respondent, in support of his affidavits, filed DetentionOrders issued in response to only two of the ten applications, namely152/92 and 155/92. They were marked as follows: X3A in application152/92 relating to Bandara and as X3A in application 155/92 relatingto Wimalasuriya, X4A in relation Dayaratne, X5A in relation toParanavitane, X6A in relation to Weerasekera, X7A in relation toPiyarathana, X8A in relation to Premarathana and X9A in relation toKithulgala Upali.
Having regard to the fact that detention orders, were not filed inrespect of the other petitioners, I assume that there were no detentionorders made in terms of Regulation 19(2) in respect of such otherpetitioners. A detention of a person in pursuance of Regulation 18must be in a place authorized by the Inspector-General of Police orDeputy Inspector-General of Police, Superintendent of Police orAssistant Superintendent of Police. Otherwise the detentions wouldbe in violation of Regulation 19(2) and therefore, not being inaccordance with procedure established by law, they would beviolative of Article 13(1) of the Constitution which provides that noperson shall be arrested except according to procedure establishedby law. I hold therefore that the arrest of M. C. Pieris, the applicant inSC Application 146/92; M. D. Daniel, the applicant in SC Application147/92; S. H. Dayananda, the applicant in SC Application 148/92;Athureliye Rathana, the applicant in SC Application 149/92; Rev,Thalpitiye Wimalasara the applicant in SC Application 150/92; K. N.Perera the applicant in SC Application 151/92; P. H. G. P,Chandanaratne, the applicant in SC Application 153/92; and R. A. P.C. Ranawake, the applicant in SC Application 154/92 to be violativeof Article 13(1) of the Constitution.
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There are however some decisions which suggest that where theprovsions of Regulations 19(2) have been violated either because thepersons arrested were not detained at a place designated by theInspector-General of Police or by another authorized officer becausethere were no detention orders (see Lalanie and Nirmala v. De Silva<8tDissanayake v. Superintendent, Mahara Prison m or because theywere detained at places other than those designated in an order (seeWijesiriv. Rohan Fernando m- Dissanayake v, Superintendent MaharaPrison supra); or because the requirements prescribed by Regulation19(2) for instance with regard to production before a judge have notbeen complied with (see Weerakoon v. Mahendra and Others(,1) orbecause, for lack of supporting grounds the detention orders were“unlawful" (see Vidyamuni v. Jayetilleke<1!>; Wijewardene v. Zain(,3) or“vitiated" (see Sasanasiritissa’s case lu> see also Weerakoon v.Weeraratne l15>, Article 13(2) of the Constitution has been violated.
Article 13(2) simply states that “Every person held in custody,detained or otherwise deprived of personal liberty shall be broughtbefore the judge of the nearest competent court according toprocedure established by law and shall not be further held incustody, detained or deprived of personal liberty except upon and interms of the order of such judge made in accordance with procedureestablished by law." (Per Goonewardene, J. in Faiz v. Attorney-General,l,*> and in Wijeratne v. Vijitha Perera |17). Article 13(2) doesnot, as the decisions referred seem to assume, state that "No personshall be held in custody, detained or otherwise deprived of personalliberty except according to procedure established by law."
The right not to be deprived of personal liberty except accordingto a procedure established by law is enshrined in Article 13(1) of theConstitution. Article 13(1) prohibits not only the taking into custodybut also the keeping of persons in a state of arrest by imprisonmentor other physical restraint except according to procedure establishedby law. Where a person is deprived of personal liberty without beingbrought before the judge of the nearest competent court according toprocedure established by law, there could be a violation of bothArticles 13(1) and 13(2) of the Constitution. These matters will befurther considered later on in my judgment.
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MERE ERRORS OF FORM DID NOT VIOLATE ARTICLE 13(1)The caption in each of the orders refers to Emergency Regulationspublished in Gazette Extraordinary dated July 18th, 1989. There areno Emergency Regulations published in Gazette Extraordinary datedJuly 18th, 1989. What appears in Gazette Extraordinary (No. 567/3) ofJuly 18th, 1989 is the Proclamation of the President of the Republicdeclaring that the provisions of Part II of the Public SecurityOrdinance shall come into operation. In the body of each Order theAssistant Superintendent states that he is acting in terms of powersderived from Regulation 19(4) and 19(2) published in GazetteExtraordinary 701/19. Gazette Extraordinary No. 701/19 does not setout Emergency Regulations: It sets out the Proclamation of thePresident of the Republic declaring that Part II of the Public SecurityOrdinance shall come into operation.
Errors of the kind made in the preparation of these DetentionOrders do not per se make the arrests otherwise than in accordancewith a procedure established by law, for an exercise of power will bereferable to a jurisdiction which confers validity upon it and not to ajurisdiction under which it will be nugatory. This principle has beenapplied even to cases where a statute which confers no power hasbeen quoted as authority for a particular act but where there was inforce another statute which conferred that power. (Per Sansoni, J. inPeiris v. The Commissioner of Inland Revenue,m followed per Sozaand Ranasinghe, JJ. in Kumaranatunge v. Samarasinghd'* Seealso Fernando v. Attorney-General,m Edirisuriya v. Navaratnam,iViJoseph Silva v. Balasuriya & Othersm Gunaratne v. Cyril Herath andOthers (23,and Wijesooriya v. Abeyratne and Others<M|.
However, these errors suggest that the arrests were arbitrarilymade, not as required by Article 13(1) of the Constitution in terms ofthe relevant procedure established by law, namely Regulation 18(1),the police being at a loss even six days after the arrests to accuratelyindicate some procedure established by law under which they mighthave made the arrests. Moreover, errors of this sort show “adeplorable lack of diligence on the part of the police” and not only"creates much suspicion and doubt as to the legality of the arrests
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but also as to the veracity of the respondents' affidavits upon certainmatters." (Atukorale. J. in Chandradasa v. Lai Fernando),25).
I shall assume that the Orders were issued, as they might havebeen, in pursuance of Regulation 19 of the Emergency(Miscellaneuous Provisions and Powers) Regulations No. 1 of 1989made under the Public Security Ordinance and published in Part 1Section (1) General, of the Gazette Extraordinary of 20.06.1989 asamended from time to time. Those were the regulations in force at therelevant time, although they were later replaced by the Emergency(Miscellaneous Provisions and Powers) Regulations Ordinance No. 1of 1993 made by the President under Section 5 of the Public SecurityOrdinance and published in the Gazette Extraordinary No. 771/16 of17th June 1993. I shall also infer from the detention orders made,even though they were not issued in respect of certain petitioners,that the arrests of all the petitioners were supposed to have beenunder Regulation 18(1).
ARREST UNDER REGULATION 18(1) IN GENERALRegulation 18(1) empowers certain persons, including any policeofficer, to “search, detain for purposes of such search, or arrestwithout warrant, any person who is committing or has committed orwhom he has reasonable ground for suspecting to be concerned inor to be committing or to have committed, an offence under anyEmergency Regulation …"
Were the arrests in the matters before us in accordance with theprocedure established by law as set out in Regulation 18(1) of theEmergency (Miscellaneous Provisions and Powers) Regulations No. 1of 1989?
The following analysis is a checklist approach l shall follow tofacilitate my determination on whether the constitutional requirementof freedom from arrest except according to procedure established bylaw has been observed in the matters before me. The words italicizedhave no application to the matters before us but have to bementioned merely for the sake of completeness.
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ANALYSISRegulation 18(1) empowersa person authorized by that provision
to search; or
detain for purposes of "such" search as referred to in (1) or
arrest without Warrant,
any person
who is committing; or
who has committed; or
who he has reasonable ground for suspecting
to be concerned in; or
to be committing; or
to have committed
an offence under the Emergency Regulations; and to
search; or
seize; or
remove; or
detain
any vehicle; or
vessel; or
article; or
substance; or
thing whatsoever
used in or in connection with the commission of an offence under theEmergency Regulations.
The respondents were police officers and were therefore“authorized" persons.
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ARREST UNDER REGULATION 18(1) – ARREST WITHOUTWARRANT WHEN NO OFFENCE COMMITTED OR BEINGCOMMITTED – 3(a) AND (b) OF THE ANALYSIS
It was an uncontroverted fact that there was a telephone messagestating that a meeting of the JVP was being held. The third and fourthrespondents proceeded to the temple because of that message. TheOrder proscribing the JVP was revoked on 10.5.88 {Vide GazetteExtraordinary 505/3 of 10.5.88) and as conceded by learned counselfor the respondents on the day in question, namely 27 February1992, membership of the JVP was not “an offence under theEmergency Regulations”. The procedure established by Regulation18(1) is to enable the police to arrest a person who is committing orwho has committed or who is reasonably suspected to be concernedin or committing or who has committed an offence under theEmergency Regulations. Membership of Or participation in theactivities of a lawful organization, such as JVP was at that time, wasnot an offence under the Emergency Regulations, {seeWickremabandu v. HerattPDeniyakumburugedera Sriyani LakshmiEkanayake v. Inspector Herath Banda and Others™, Dissanayake v.S. /. Gunaratne m and no arrest was possible under or in pursuanceof the procedure established by Regulation 18(1) on account ofparticipation in a JVP Meeting. (See 3(a) and (b) of the analysisabove).
What was the offence under the Emergency Regulations which thepetitioners were committing?
The detention orders filed by the third respondent state that thepetitioners had contravened Regulations 23(a) and (b) andRegulations 45(a), (b), (c) and Regulation 46.
Regulation 23 (a) provides that whoever conspires to overthrow orattempts or prepares to overthrow, or does any act, or conspires todo or attempts or prepares to do any act calculated to overthrow, orwith the object or intention of overthrowing, or as a means ofoverthrowing, otherwise than by lawful means, the Government of SriLanka by Law established, shall be guilty of an offence.
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Much emphasis was placed by the learned Deputy Solicitor-General on the supposed use of the phrase 60geosCsi
– under the guise of the Ratawesi Peramuna and the word “cOmea" -revolutionary struggle. The learned Deputy Solicitor-General was ofthe view that the speech went beyond legitimate criticism and fell intothe genre of criticism called “incitement".
However, mere incitement is not an offence. As Justice Holmesobserved in Gitlow v. New York 29 “Every idea is an incitement. Itoffers itself for belief and if believed is acted on, unless some otherbelief outweighs it or some failure of energy stifles the movement atits birth. The only difference between the expression of an opinionand an incitement in the narrower sense is the speaker's enthusiasmfor the result. Eloquence may set fire to reason".
Legitimate agitation cannot be assimilated with incitement tooverthrow the Government by unlawful means, What the thirdrespondent is supposed to have heard, even according to thefabricated notes he has proffered, was a criticism, albeit a severecriticism, of the system of Government, the need to safeguarddemocracy, and proposals for reform.
Ms. Muttetuwagama, submitted that these were not calls to revoltbut rather a rhetorical way of saying things. Vague references torevolutionary action of an unspecified kind will not do. I agree.
Almost as eloquently and persuasively as she did, JusticeStevens observed in NAACP v. Caliborne Hardware Co.m ‘Strongand extemporaneous rhetoric cannot be nicely channelled in purelydulcet phrases. An advocate must be free to stimulate his audiencewith spontaneous and emotional appeals for unity and action in acommon cause. When such appeals do not incite lawless action theymust be regarded as protected speech." And as the U.S. SupremeCourt observed in Watts v. United States)3^ “The language of thepolitical arena, like the language used in labour disputes is oftenvituperative, abusive and inexact." In the Waffs case the petitionerhad been convicted under a law making it an offence “knowinglyand wilfully" to make any threat to take the life of the President. Thepetitioner had been conscripted to serve in the army in the VietnamWar. At a public rally he said, "I am not going. If they ever make me
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carry a rifle the first man I want to get in my sights is L.B.J.", referringto President Lyndon B. Johnson. In holding him free from liability, theCourt said: ‘Certainly the statute is constitutional on its face. TheNation undoubtedly has a valid, even an overwhelming, interest inprotecting the safety of its Chief Executive and in allowing him toperform his duties without interference from threats of physicalviolence." Nevertheless, considering in context, the conditionalnature of the remarks and the fact that listeners had laughed at thestatement, the “political hyperbole" indulged in by the petitioner wastaken to be nothing more than “a kind of very crude offensive methodof stating a political opposition to the President.”
Learned Hand, then a District Judge, in Masses Publishing Co. v.Patten ™ regarded as legitimate the “right to criticise either bytemperate reasoning or by immoderate and indecent invective" as‘normally the privilege of the individual in countries dependent uponthe free expression of opinion as the ultimate source of authority." TheJudge went on to say: ‘Political agitation, by the passions it arousesor the convictions it engenders, may in fact stimulate men to theviolation of the law. Detestation of existing policies is easilytransformed into the forcible resistance of the authority which putsthem in execution, and it would be folly to disregard the casualrelation between the two. Yet to assimilate agitation, legitimate assuch, with direct incitement to violent resistance, is to disregard thetolerance of all methods of political agitation which is in normal timesa safeguard of free government."
I do also recall Justice Brennan's opinion in New York Times Co. v.Sullivarfm that cases of this kind should be considered “against thebackground of a profound national commitment to the principle thatdebate on public issues should be uninhibited, robust, andwide-open."
. As far as we are concerned, that pledge is enshrined in Article14(1 ){a) of the Constitution which guarantees that every citizen isentitled to the freedom of speech and expression includingpublication.
While the emotive content of words might in the circumstances of acase be the more important element of the overall message to be
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communicated (Cf. Justice Harlan, in Cohen v. California)™ and atthe same time bearing in mind that words are not only the keys ofpersuasion but also the "triggers of action”, yet in the circumstancesof this case there was nothing in the speech directly or by way ofrational inference to suggest that the pre-eminent message was tooverthrow the Government by unlawful means. It is the course ofmeaning which holds on through a speech that matters. It is the tenorof the speech rather than isolated sentences, phrases and words thatmatter. (Cf. per Sharvananda CJ in Joseph Perera v. AG.)<3S>.
The fourth respondent says that what was being advocated wassimply "chasing away" the President – a perfectly legitimateobjective under a democratic system of Government if it was to beaccomplished by lawful means. The call to “topple" the President orthe Government did not mean that the change was to be broughtabout by violent means. It was a call to bring down persons in powerby removing the base of public support on which they were elevated.
If the throwing down was to be accomplished by democraticmeans, the fact that the tumble may have had shocking or traumaticeffects on those who might fall is of no relevance. It is the means andnot the consequence that have to be considered.
The third respondent says in his affidavits that he concluded thatthe petitioners "were engaged in a conspiracy to overthrow theGovernment," An offence of conspiracy to wage war against theRepublic is dealt with in Section 115 of the Penal Code read withSection 114. However, in the written submissions of the respondentsand Detention Orders the reference is to the offence of conspiracyunder the Emergency Regulations in Regulation 23. No one wasarrested for sedition and incitement, which is dealt with in Regulation26. Regulation 26 provides as follows:
"Any person who by words, whether spoken or written or bysight or visible representations or by conduct or by any otheract (a) brings or attempts to bring the President or theGovernment into hatred or contempt, or excites or incites orattempts to excite or incite feelings of disaffection to or hatred orcontempt of the President or the Government: or (b) brings orattempts to bring the Constitution or the administration of justice
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into hatred or contempt or excites or incites or attempts toexcite or incite the inhabitants of Sri Lanka or any section, classor group of them to procure otherwise than by lawful means, thealteration of any matter by law established; or (d) raises orcreates or attempts to raise or create discontent or disaffectionamong the inhabitants of Sri Lanka or any section .class orgroup of them; or (e) promotes or fosters or attempts to promoteor foster feelings of hatred or hostility between differentsections, classes or groups of inhabitants of Sri Lanka; or (f)excites or incites or attempts to excite or incite inhabitants of SriLanka or any section, class or group of them to the use of anyform of physical force or violence, breaches of the peace,disobedience of the law or obstruction of the execution of law,for the purpose thereby of inducing or compelling theParliament or the government to alter any matter by lawestablished or to do or forbear from doing any act or thing; or(g) excites or incites or attempts to excite or incite theinhabitants of Sri Lanka or any section, class or group of themto do or omit to do any act or thing which constitutes a breachof any emergency regulation, shall be guilty of an offence andpunished with rigorous imprisonment which shall extend to atleast three months but shall not extend to more than twentyyears and may also be liable to a fine."
One would have thought that the speech in the matters before uswas reached by Regulation 26? However, there was just the onespeech containing the supposedly offensive words; if the charge hadbeen incitement, only the arrest of the speaker could have beenjustified. And so, it seems, a charge of conspiracy was made tojustify the other arrests, the element of complicity being supplied bythe statement that a priest inquired whether there was opposition andthe others signifying their involvement by remaining silent.
By making Regulation 23(a) it has been determined that aconspiracy to overthrow the organized Government established bylaw by unlawful means is so inimical to the general welfare andinvolves such danger of substantive evil that such an action is anoffence that must be penalized by the State in the exercise of itspolice power. The obvious purpose of Regulation 23(a) is to protect
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the existing government, not from change by peaceable, orderly,constitutional and therefore by lawful means, but from change byviolence, revolution and terrorism, by means of criminal force or showof criminal force. (Cf. section 114, 115 and 120 of the Penal Codeand Regulation 25 of the Emergency (Miscellaneous Provisions andPowers) Regulations No. 1 of 1993. It is of interest to note in passingthat Regulation 23(a), which is the provision we have to, and do,consider, has ceased to exist, and that offences under the PenalCode, including offences to wage war against the Republic (section114) and conspiracy to do so (section 115) have now beenincorporated by reference in substitution for Regulation 23(a).)
The petitioners were certainly not meeting merely to hold aseminar of political theory or to engage in an academic study ofnational problems. They were engaged in more than a harmlessletting off of steam. The Ratawesi Peramuna was as we have seenacording to the petitioners themselves, an “anti-government"organisation. However, as a matter of law, merely vehement, causticand unpleasantly sharp attacks on the government, the President,Ministers, elected representatives or public officials are not per seunlawful. (See per Brennan, J. in New York Times Co. v. Sullivan,(supra). Cf. Deniyakumburagedera Sriyani Lakshmi Ekanayake v.Inspector Herath Banda and others(2?); Amaratunga v. Sirimal(M);Joseph Perera v. AG.041 per Sharvananda C.J.) They have on thatday been engaged in discussions against the Government: but therewas nothing said that showed incitement to have been subjectivelyintended by the speaker; or that might be objectively regarded asbeing encouraged by the speaker; or in the context apt to create aseditious temper that was likely to produce lawless action.
It is useful in this connection to consider what might or might notconstitute unlawfully exciting or attempting to excite disaffectionunder the normal law. Section 120 of the Penal Code states as
follows:
“Whoever by words, either spoken or intended to be read, orby signs or by visible representations or otherwise, excites orattempts to excite feelings of disaffection to the President or to
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the Government of the Republic, or excites or attempts to excitehatred to or contempt of the administration of justice, or excitesor attempts to excite the people of Sri Lanka to procure,otherwise than by lawful means, the alteration of any matter bylaw established, or attempts to raise discontent or disaffectionamongst the people of Sri Lanka, or to promote feelings of ill-will. and hostility between different classes of such people, shall bepunished with simple imprisonment for a term which mayextend to two years."
The "Explanation" to the Section states as follows:
‘It is not an offence under this Section by intending to showthat the President or the Government of the Republic have beenmisled or mistaken in measures, or to point out errors or defectsin the Government or any part of it or the administration of justice,with a view to the reformation of such alleged errors or defects, orto excite the people of Sri Lanka to attempt to procure by lawfulmeans the alteration of any matter by law established, or to pointout in order to their removal matters which are producing or havea tendency to produce feelings of hatred or ill-will betweendifferent classes of the people of Sri Lanka."
The speech, according to the third and fourth respondents"affidavits, was directed against "autocratic rule" and theconstitutional framework they supposed facilitated it. Changes of theExecutive President and the Constitution were advocated. This wasperfectly legitimate. Jefferson articulated the relevant precepts in thefollowing words:
". . .It is the Right of the People to alter or to abolish it(Government), and to institute new Government, laying itsfoundation on such principles, and organizing its powers insuch form, as to them shall seem most likely to effect theirsafety and happiness."
There was no evidence that the Peramuna ever adopted,embraced or espoused undemocratic means either to overthrow the
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government or to change the Constitution. On the other hand, theevidence in the affidavits of the petitioners cited at the end of thisparagraph was that Peramuna eschewed violence either forobtaining or retaining power. A raison d'etre for the Peramuna was towean young persons from pursuits aimed at changing governmentsby violence. The petitioners in their affidavits have maintained that,not only were they not members of the JVP, but that they wereanxious to prevent young persons from resorting to violence andarmed conflict. They were opposed to and viewed the re-entry of theJVP into the political arena as requiring a more cautious approach onthe part of the Ratawesi Peramuna, making that a subject for theirdiscussions at Kawduduwa temple on 27th February 1992. Theywere conscious of the fact that their lives were in danger. While theywere themselves not preparing for violent action, they might havebeen steeling its members to be ready to face the violence of rivalgroups, having regard to the armed intervention they hadexperienced at their poster exhibition at Matara. The statementattributed by the third respondent to a speaker at the meeting thatthey must be ready to sacrifice lives is therefore quiteunderstandable. ((See para 2.4 of the affidavit of M, D. Daniel in S.C.Application No. 147/92; para 3.4 of the affidavit of SingappuliHewage Sunny Dayananda in S.C. Application No. 148/92; 2.9 of theaffidavit of Athureliya Rathana in S.C. Application No. 149/92; para3.4 of the affidavit of Jayasinghe Mudiyanselage Janaka PriyanthaBandara in S.C. Application 152/92; para 2.4 of the affidavit ofPallimulle Hewa Geeganage Chandraratne in Application No. 153/92;and para 4.1 of the affidavit of Ranawake Arachchige PataliChampika Ranawake in S.C. ApplicationNo. 154/92.)
The criminal activities of the once proscribed JVP perhaps left anindelible impression. Unfortunately some law enforcement officers,including the third respondent, seem to have come to the erroneousconclusion that all anti-government activity, regardless of the bodyunder whose auspices it is being advanced, are necessarilydirected at subverting the Government by violent, undemocratic andunlawful means. Several applications made to this Court have madethis quite obvious. (E. g. see Gunaratne v. Cyril Herath andWijesoortya v. Abeyratne and Others(a4)),
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Overthrowing the Government of the day might in the thirdrespondent's private opinion have been bad or undesirable orharmful or unfortunate or positively disastrous, evil and reprehensible;he may have entertained a hate or revolted dislike of the contents ofthe speech; but the relevant matter for him as a police officer actingin pursuance of Regulation 18(1) read with Regulation 23(a) inrespect of persons engaged in expressive activities was to considerwhether there was anything to show that the petitioners wereengaged in a plot, some combination or agreement, to overthrow theGovernment by imminent action which was likely to bring about suchoverthrow otherwise than by lawful means; to use a phrase incommon parlance, "by the bullet rather than by the ballot", by forceand violence rather than by the means provided by law, and thereforein contravention of Regulation 23(a) of the Emergency (MiscellaneousProvisions and Powers) Regulations No. 1 of 1989. On the otherhand, it was not the function of the police, purporting to act inpursuance of their powers of arrest under Regulation 18(1), to be aninstrument of Government for the suppression of merely unpopularviews. (Cf. Feiner v. New York)<37).
Police Officers who are tempted to play the role of censors shouldbe mindful of the fact that the right of free speech cannot beinterfered with on slender grounds and that "If there is any fixed starin our constitutional constellation, it is that no official, high or petty,can prescribe what shall be orthodox in politics, nationalism, religion,or other matters of opinion or force citizens to confess by word oract their faith therein." (West Virgina State Board of Education v.Barnette )m>.
As we shall see later on, it is of fundamental importance that thereshould be freedom of thought and expression in a democracy. What lshould like to emphasize here is the fact that attempts to achieveconformity by compulsion must be effectively discouraged, for “thosewho begin coercive elimination of dissent soon find themselvesexterminating dissenters. Compulsory unification of opinion achievesonly the unanimity of the graveyard. It seems trite but necessary tosay that [the Constitutional guarantee of freedom of expression] wasdesigned to avoid these ends by avoiding beginnings."
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Charma Pieris and Others v. Attorney-General and Others
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43
(Wesf Virginia State Board of Education v. Barnette, supra, cited withapproval by Fernando, J. in Wijeratne v. Vijitha Perera and Others)™.
Police Officers should also realize that if, as indeed it should be, itis their desire to maintain public order and stability, precipitate actionof the sort taken by the third and fourth respondents may be counter-productive and pernicious. As Justice Brandeis pointed out in hisjudgment in Whitney v. California,M), repression breeds hate and hatemenaces stable government. The immense value of free speech as asafety valve cannot be overemphasized. As Nowak, Rotunda andYoung [Constitutional Law, pp. 836-7) point out:
‘Just as the ancient Roman eventually learned that executingChristians did not suppress Christianity, modern Governments shouldrealize that forbidding people to talk about certain topics does notencourage public stability. It only creates martyrs. Punishing peoplefor speech does not discourage the speech; it only drives Itunderground and encourages conspiracy. In the battle for publicorder, free speech is the ally, not the enemy".
In ventilating their dissident views, the petitioners may havepassed the bounds of argument and persuasion and there may havebeen advice, encouragement or even pressure brought to bear onthe listeners to overthrow the Government. Yet, there was no basisfor arrest under Regulation 18 read with Regulation 23 (a), for therewas nothing the third respondent was supposed to have heard that inany way suggested that the petitioners were doing anything tooverthrow the Government by means that were not lawful.
According to the Detention orders marked X3A in Application152/92 and X3A – X9A in Application 155/92, the petitioners werealso supposed to have been acting in contravention of Regulation23(b). What Regulation 23(b) states is this:“Whoever conspires tomurder or attempts to murder, or wrongfully confines, conspires orattempts to prepare to wrongfully confine, the President or a Memberof Parliament, or a Member of the Police or a Member of the ArmedForces, or a Public Officer with the intention of inducing or compellingthe President, such Member of Parliament, Member of the Police orMember of the Armed Forces or a Public Officer to exercise or refrain
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from exercising in any manner any of the lawful powers of thePresident, such Member of Parliament, Member of the Police,Member of the Armed Forces or Public Officer… shall be guilty of anoffence.”
Even assuming that the third respondent did hear the things herecorded, how could an arrest have been made on the basis thatRegulation 23(b) was being violated ? There was not a word in hisnotes of what he is supposed to have heard about either murderingor confining anyone.
The petitioners were also vaguely charged with attempting, aiding,abetting or conspiring to commit offences (Regulation 45) and ofassisting offenders (Regulation 46).
What were the offences under the Regulations the petitioners wereaiding, abetting or conspiring to commit ? None.
For the foregoing reasons I hold that the third and fourthrespondents in arresting the petitioners were not arresting personswho were committing or who had committed an offence underEmergency Regulations 23(a), 23)b), 45 and 46.
WERE THE ARRESTS WITHOUT WARRANT ON REASONABLEGROUND OF SUSPICION? – 3(C) OF THE ANALYSIS.Were the petitioners making the arrest of persons whom they hadreasonable ground for suspecting (1) to be concerned in; or (ii) tohave committed an offence under the Emergency Regulations?
In general, in order to make an arrest according to the procedureestablished by Regulation 18(1) on the basis of a reasonable groundof suspicion (See 3(c) in the analysis of Regulation 18(1) above), anofficer need not have clear and sufficient proof of the commission ofthe offence alleged. He is not called upon even to have anything likea prima facie case for conviction. Prima facie proof consists ofadmissible evidence. Suspicion can take into account matters thatcould not be put in evidence at all. Suspicion can take into accountalso matters which, though admissible, could not form part of a
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prima facie case. The provisions relating to arrest are materiallydifferent to those applying to the determination of the guilt orinnocence of the arrested person. One is at or near the starting pointof criminal proceedings while the other constitutes the termination ofthose proceedings and is made by the Judge after the hearing ofsubmissions from all parties. The power of arrest does not depend onthe requirement that there must be clear and sufficient proof of thecommission of the offence alleged. What the officer making the arrestneeds to have are reasonable grounds for suspecting the personsto be concerned in or to be committing or to have committed theoffence. In general, the question for me in deciding whether thearrests on the ground of reasonable suspicion were in accordancewith the procedure established by Regulation 18(1) is this: Were therecircumstances, including the prevailing situation in the country at thetime (see per Wanasundera J. in Joseph Perera ^ per, Kulatunga, J.in Wijewardene v. Zain (l3)and in Dissanayake v. SuperintendentMahara Prison|B>. See also Mattawaratchi v. Seneviratnem, objectivelyregarded, – the subjective satisfaction of the officer making the arrestis not enough – that should have induced the third respondent toreasonably suspect that the petitioners were concerned in orcommitting or to have committed an offence under the Emergencyregulations specified by the respondents ?
If the answer is in the affirmative, Article 13(1) is not violated. If theanswer is in the negative, Article 13(1) is violated. The test is thesame whether the arrest is under the normal law, or under theEmergency Regulations or the Prevention of Terrorism Act.(Muttusamy v. Kannangara (4,); Gunasekera v. Fonseka JosephPerera v. Attorney-General4ZI; Cf. Lundstron v. Cyril Herath andOtherst43); Joseph Silva and Others v. Balasuriya and Others I22>;Jayasuriya v. Tillekeratne & Ohers <44>; Wijewardene v. Za/n('3';Withanachchi v. Cyril Herat and Others (45), Chandradasa v. LaiFernando l48); Yapa v. Bandaranayake ,4S); Gunaratna v. Cyril Herathand Others ,H) and Wijesooriya v. Abeyratne and others <24);Weerakoon and Alahakoon v. Beddewela (47>; Gamlath v. Silva andOthersl4et; Dissanayake v. Superintendent Mahara Prisons (4*’;Munidasa v. Seneviratne'*^, Karunasekera v. Jayewardene (S0);Chandrasekeram v. Wijetunge <s,); Vidyamuni v. Jayetilleke (W;Elasinghe v. Wijewickrema and Others|S,):; Nihallage Dona Ranjani v.Uyanapathirana and Others(S3).
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It has been said in some of these cases, using the ambiguous testlaid down in Baba Appu v. Adan Hamy ,54). as if it were a ritual orprescribed formula to be followed in deciding whether there was aground of reasonable suspicion, that “a suspicion is reasonable if thefacts disclose that it was founded on matters within the policeofficer's own knowledge or on the statements made by other personsin a way in which justify him giving them credit."
A reasonable suspicion may be based either upon matters withinthe officer’s knowledge or upon credible information furnished to him,or upon a combination of both sources. He may inform himself eitherby personal investigation or by adopting information supplied to himor by doing both, as the third respondent suggests he did in thematters before us, and as it was the case in Ragunathan v.Thuraisingham(K). A suspicion does not become “reasonable" merelybecause the source of the information is creditworthy. If he isactivated by an unreliable informant, the officer making the arrestshould, as a matter of prudence, act with greater circumspectionthan if the information had come from a creditworthy source..However, eventually the question is whether in the circumstances,including the reliability of the sources of information, the personmaking the arrest could, as a reasonable man, have suspected thatthe persons were concerned in or committing or had committed theoffence in question. If the basis of the ground of arrest is alleged tobe information received, the Court may, as it did in Joseph Silva andOthers v. Balasuriya and Others require the respondents toproduce evidence of the information. However, I would with greatrespect hesitate to accept the view expressed by Wanasundera, J. inJoseph Perera (supra) and followed in Joseph Silva and Others v.Balasuriya and others™that "the sole issue for the Court is theknowledge and state of mind of the officer concerned at the time ofthe arrest…” “knowledge", as opposed to mere “belief”, means thatwhat was believed was true. The truth of the matter is not what isrelevant at the stage of arrest. What Regulation 18(1) requires isreasonable ground for suspecting. As Lord Devlin pointed out inShaaban Bin Hussein v. Chong Fook Kamm “suspicion in its ordinarymeaning is a state of conjecture or surmise where proof is lacking; Isuspect but I cannot prove’. Suspicion arises at or near the startingpoint of an investigation of which the obtaining of prima facie proof is
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the end." Moreover, the officer is not required to have reasonablegrounds to believe. As Dias J. pointed out in Buhary v. Jayaratne<5n"believe" is much stronger than “suspect" and involves the necessityof showing that a reasonable man must have felt convinced in hismind of the fact in which he believed. (See per Seneviratne J. inWithanachchi v. Cyril Herath and others t45> . However the officermaking an arrest cannot act on a suspicion founded on mereconjecture or vague surmise. His information must give rise to areasonable suspicion that the suspect was concerned in thecommission of an offence for which he could have arrested a personwithout a warrant. The suspicion must not be of an uncertain andvague nature but of a positive and definite character providingreasonable ground for suspecting that the person arrested wasconcerned in the commission of an offence. (See the observation ofAtukorale J. in Jayasuriya v. Tillekeratne)
The offence in question in the matters before us was the offence ofconspiracy defined in Regulation 23(a). Other offences were alsomentioned in the Detention Orders; but from the affidavits of the thirdrespondent one gathers that it was the offence of conspiracy as setout in Regulation 23(a) that was supposed to have been in his mindwhen he heard the speeches and decided to arrest the petitioners.
According to the telephone message, the petitioners wereattending a meeting of the JVP. The JVP was once proscribed underRegulation 68 as an organization whose activities were prejudicial tonational security or the maintenance of public order. As a matter ofprudence, past conduct might not have been altogether ignored. If inall the circumstances the Officer-in-Charge had reasonable groundsfor suspecting that the petitioners were concerned in or committingor to have committed an offence under the Emergency Regulations,he had the duty to ascertain what the position was and take timelyaction.
in the case of a conspiracy to overthrow the Government byunlawful means, the Government acting through its agents of lawenforcement cannot be expected to wait until the putsch is about tobe executed, the plans have been laid and the signal is awaited orthe bomb assembled and the fuse ignited. If the ingredients to the
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reaction are present, it is not necessary to await the addition of thecatalyst. A single revolutionary spark may kindle a fire that,smouldering for a time, may burst into a sweeping and destructiveconflagration. It cannot be said that the State is acting arbitrarily orunreasonably when it seeks to extinguish the spark without waitinguntil the flame has been enkindled or blazed into conflagration. Itcannot reasonably be required to defer the adoption of measures forits own peace and safety until the revolutionary utterances lead toactual disturbances of the public peace; but it may, and it isexpected in the exercise of its duty, to suppress the threateneddanger in its incipiency. If Government is aware that a group aimingat its overthrow by unlawful means is attempting to indoctrinate itsmembers and to commit them to a course whereby they will strikewhen the leaders feel the circumstances permit, action to save thenation from the physical and political harm that might otherwiseensue is not only reasonable but also a duty and a fundamentalfunction-of government and its law enforcement agencies. (Of.Vinson, C.J. in Dennis v. U.S.iSB>; Justice Stanford in Gitlow v. NewYork129). Where there are utterances directed to inciting or producingimminent action to bring about the overthrow of organizedgovernment established by law by unlawful means and whichare likely to incite or bring about such overthrow, such utterancesinvolve danger to the public peace and to the security of the State.They threaten breaches of the peace and must be immediately dealtwith even though the effect of a given utterance cannot be accuratelypredicted. As Justice Douglas observed in Dennis v. UnitedStates (S8> : “There comes a time when even speech loses itsconstitutional immunity … When conditions are so critical that therewill be no time to avoid the evil that the speech threatens, it is time tocry a halt. Otherwise free speech which is the strength of the Nationwill be the cause of its destruction.”
However, intervention must be opportune. Justice Brandeis, inWhitney's Case stated as follows:
"Those who won our independence by revolution were notcowards. They did not fear political change. They did not exalt orderat the cost of liberty. To courageous, self-reliant men, with confidencein the power of free and fearless reasoning applied through the
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processes of popular government, no danger flowing from speechcan be deemed clear and present, when the incidence of the evilapprehended is so imminent that it may befall before there isopportunity for full discussion. If there be time to expose throughdiscussions the falsehood and fallacies, to avert the evil by theprocesses of education, the remedy to be applied is more speech.Only an emergency can justify repression. Such must be the rule ifauthority is to be reconciled with freedom. Such in my opinion is thecommand of the Constitution.”
Since in Sri Lanka the word “emergency", by long usage, issometimes taken to mean the state of emergency proclaimed by thePresident under the Public Security Ordinance, it might be pointedout that “emergency" in the Brandeis statement meant that thelawless action must be imminent before repressive action, by arrestor otherwise, is warranted. In order to justifiably claim that the arrestswere fitting in regard to time and circumstances, the respondentswere obliged to establish that the speech impelled the hearers toimminent, unthinking lawless action to overthrow the Government.
Law enforcement officers cannot reasonably be required tomeasure the danger from every such utterance in the nice balance ofa jeweller's scale. At the same time sufficient regard must be had tothe constitutional right of free speech. Had it been established thatthe speaker subjectively intended incitement and in the context, thewords used were objectively likely to encourage or produce imminentunthinking lawless action to overthrow the Government, then "morespeech" in “'the market place" of ideas to correct the speech byreasoned debate had no place. The third respondent, acting for andon behalf of the State would then have had a significant interest in,and no other means of, preventing the resulting lawless conduct thanby arresting the persons advocating and clearly supporting suchactivity. However, that was not the case.
The petitioners were not arrested on any certain and verifiablebasis or even on the basis of reasonable suspicion that they wereconcerned in or committing or had committed the offence ofconspiracy as defined by Regulation 23. They had done nothing toattempt or prepare to overthrow the Government by unlawful means.
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Indeed, they were not prepared even for lawful activity, for they weremerely attempting to structure their organization at the time. Evenimminent lawful activity was as yet a remote possibility. Thepetitioners were arrested simply in the expectation that somethingmight turn up to support the vague suspicions of the third respondentthat the petitioners were engaged in some venture to overthrow theGovernment by unlawful means. The third respondent in paragraph6 of his affidavit of 9th September 1992 filed in SC Application 153/92states that petitioner Chandanaratne “and the other suspects werebrought to the Wadduwa Police Station and they were interrogatedwith a view to finding out their subversive connections." Having noreasonable grounds against the petitioners, it was hoped that“connections" with others against whom there may have beenreasonable grounds would, perhaps, supply the deficiency.
One may be “connected” through bonds of family or friendship orcommon employment and a myriad of other ways. There may havebeen no choice, as in the case of one's relatives or fellow employees.It is hardly reasonable to suggest that “connections" alone implycomplicity or even a shared sympathy with each other s views. Yet thepetitioners seemed to have lost their personal liberty simply becauseof possible “connections." People who were "connected", as in thecase of the members of Ranawake's family, were therefore subjectedto needless worry, vexation and harassment. Ranawake {(154/92.4.13, 4.14 and 5.1) relates how ex post facto efforts were made in hiscase to discover a basis for his arrest, including extensiveinterrogation in relation to his writings seized from his home and thatof his sister after a search of his home by Piyaratne, the fourthrespondent, which included the splitting of mattresses. The thirdrespondent in his affidavit (para 10) denies removing documents butadmits the visits to the homes. The third respondent (para 18) admitsthat Piyaratne visited Ranawake's sister’s home and Ranawake’shome but states that he only examined the rooms. Piyaratne in hisaffidavit (para 3) not only denies splitting mattresses but denies evenvisiting Ranawake’s home. I have no doubt that the search for“connections" cause needless distress, and by the destruction ofmattresses, needless misfortune, in the homes of the Ranawakefamily.
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The police had their suspicions and hoped that some evidencemight turn up to make their suspicions reasonable. However, vague,general suspicions and the fervent hope or even confidentassumption that something might eventually turn up to providea reasonable ground for an arrest will not do. (Cf. Piyasiriv. Fernando CT; Wijesiri v. Rohan Fernando & Others(10); Wijewardenev. Zain "“'i Weerakoon and Allahakoon v. Beddeweta<tn.
Scott, L.J. in Dumbell v. Robertdm (followed in Mutthusamy v.Kannangard4,); per Gratiaen, J.; and in Faiz v. Attorney-General perPerera, J. said: “The principle of personal freedom, that every manshould be presumed innocent until he is found guilty applies also tothe police function of arrest… For that reason it is of importance thatno one should be arrested by the police except on grounds which theparticular circumstances of the arrest really justified the entertainmentof a reasonable suspicion." Even a bona fide suspicion thatsomething was amiss, if there are no reasonable grounds, isinsufficient. The good intentions of the police officer are irrelevant.(See Podiappuhamy v, Liyanage and Others w,) Cf. Premaratne andSomawathie v. K. D. Somapala<ea). In the circumstances of that case,however, the Court was of the view that no more was required than a“formal” declaration of the violation of the petitioner’s Constitutionalrights. With great respect, either there is a violation or there is noviolation and a declaration must be made accordingly.)
DETENTION FOR SEARCH – ANALYSIS (1) AND (2)As we have seen, Regulation 18(1) empowers a person authorizedby that law to (1) search or (2) detain for purposes of search anyperson, who is committing or who has committed or whom he hasreasonable ground for suspecting to be concerned in or to beconcerned in or to be committing or to have committed, an offenceunder the Emergency Regulations. "Search” may be an examinationor exploration in order to find, or to ascertain the presence orabsence of some person or thing by looking through places likeresidences or places or receptacles like cupboards and cabinets inwhich things are held or stored or by examining a person byhandling, removal of garments and the like or looking through andexamining writings, records and other documents in order to
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ascertain whether there are certain things contained therein. Asearch in this sense took place according to the third and fourthrespondent, for it was supposed to have been ascertained that thepetitioners had no injuries and that there were found certainsuspicious books and papers but nothing else of relevance to thecase at the temple. There is no complaint by the petitioners withregard to the search in that sense. There was also a search in thissense of the homes of Ranawake and his sister which I have alreadyreferred to.
“Search”, also means the examination, by interrogation orotherwise, systematically and in detail relating to the commission ofan offence so as by such investigation to track down offenders. (SeeNanayakkara v. Henry PereratB?); Weerakoon v. Weeraratnd™ Pereraand Sathyajith v. Siriwardene<S31. See also Wijewardene v. Zairf,3>;Weerakoon v. Weeraratnd,51.
A person may, in terms of Regulation 18(1) be detained "forpurposes of such search”. The investigation must either relate to anOffence under the Emergency Regulations which the person detainedwas committing or had committed, or to an offence under theEmergency Regulations which the person detained was suspectedon reasonable grounds to be concerned in or to be committing or tohave committed. A person, as the cases cited in the precedingparagraph show, cannot be detained for unspecified and unknownpurposes. As we have seen there were no reasonable grounds forarrest and the petitioners were detained merely on account of avague suspicion in the hope that something might turn up to make itreasonable. Such a detention for search is not in accordance with theprocedure established by Regulation 18(1).
The respondents have failed to adduce evidence to show that thepetitioners were (1) committing or (ii) had committed an offenceunder the Emergency Regulations or (iii) that they had anyreasonable ground for suspecting the petitioners to be concerned inor to be committing or to have committed any offence under theEmergency (Miscellaneous Provisions and Powers) Regulations No. 1of 1989.
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Therefore in detaining the petitioners for search the respondentswere not acting in accordance with the procedure established byRegulation 18(1) of the Emergency Regulations. (See paragraphs (1)and (2) of the Analysis).
I therefore declare that the fundamental right of each and everyone of the petitioners to be free from arrest except according toprocedure established by law guaranteed by Article 13(1) of theConstitution has been violated.
ACTING ACCORDING TO A HYBRID PROCEDURE COMBININGREGULATION 17(1) WITH REGULATION 19.There were other Detention Orders in addition to those alreadyreferred to which provide us with information regarding the basis ofthe arrests. A Detention Order dated 4 March 1992 (except in thecase of Bandara in 152/92 and Weerasekera in 155/92 where theOrders are dated 3rd March 1992 and the period of detention is saidto be from 3rd March 1992) and the period of detention is said to befrom 3rd March, 1992) issued by the Assistant Superintendent ofPolice, Panadura, has been filed by the third respondent in respect ofeach of the following applications, namely, the applications ofSeneviratne in 146/92; M. D. Daniel in 147/92, Sunny Dayananda in148/92; Rathna in 149/92; Wimalasara 150/92; Nandana Perera in151/92; Chandraratne in 153/92; Champika Ranawake in 154/92;Wimalasuriya in 155/92; Dayaratne in 155/92; Paranavithana in155/92; Piyarathna in 155/92 and Kithulgala Upali in 155/92. Theabove mentioned Orders in applications 146/92; 147/92; 148/92'149/92; 150/92; 151/92; 153/92; and 154/92 are marked in each orderas X3. The Detention Order is marked as X3 in the application ofWimalasuriya in Application 155/92; X4 in the application ofDayaratne in Application 155/92; X5 in the application ofParanavithana in 155/92; X7 in the application of Piyarathna in155/92; X8 in the application of Pemarathana in 155/92 and X9 in theapplication of Kithulgala Upali in 155/92.
The Detention Orders have the following terms except (a) withregard to the place of detention (Maradana Police Station is
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designated in the case of Wimalasuriya, Paranavithana,Premarathana, Kitulgala Upali, Nandana Perera and Rathana; thePettah Police Station is designated in the case of Dayaratne,Piyarathana, Ranawake, Chandana Perera, Wimalasara and SunnyDaniel; and the Co-ordinating Division is designated in the case ofWeerasekere, Bandara, M. D. Daniel and Seneviratne), (b) the nameand residence of each of the sixteen petitioners detained as set outin the Schedule to each order, and (c) the reference number of eachorder:
My Ref
Police Office,
Panadura
4th March. 1992.
DETENTION ORDER UNDER THE EMERGENCYMISCELLANEOUS PROVISIONS AND POWERS REGULATIONSBy virtue of the powers vested in me under Section 19(2) of theEmergency (Miscellaneous Provisions and Powers) RegulationNo. 4 of 1989, published in the Gazette (Extraordinary), No.701/19 of 14.2.82, I, L. A. Jayasinghe, Asst, Suptd. of Police,Panadura/Bandaragama Dist. being in (sic.) opinion that with a viewto arresting the person specified in Column of the Schedule to thisorder residing in the corresponding entry in Column II of thatSchedule from acting in any manner prejudicial to the NationalSecurity or to the Maintenance of Public Order or with a view tocomplete investigations into his actions in the commission of offencesunder the aforesaid Regulations, it is necessary to do (sic.) herebyorder that such person be detained in custody at Police Station … fora period of 84 days from 4 March 1992.
SCHEDULEColumn IName of Detinue
A. L. Jayasinghe,
Asst. Superintendent of Police.
Column II
Place of Residence
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The number of the Column relating to the name of the persondetained is not mentioned in the main text of the Orders.
In each case, the Assistant Superintendent of Police states that hewas issuing the Order “by virtue of the powers vested in [him] undersection 19(2) of the Emergency (Miscellaneous Provisions andPowers) Regulation No. 4 of 1989 published in Gazette(Extraordinary) No. 701/19 of 14.2.92". There is no such thingmentioned in that Gazette. There was however such a thing as theEmergency (Miscellaneous Provisions and Powers) Regulations No. 1of 1989 which was published in Part I Section I of GazetteExtraordinary of 20.06.1989. As we have seen, Gazette ExtraordinaryNo. 701/19 of 14.2.92 merely sets out the Proclamation bringing PartII of the Public Security Ordinance into operation.
Assuming that he was acting under Regulation 19(2) (read withRegulation 19(4) of the Emergency (Miscellaneous Provisions andPowers) Regulations No. 1 of 1989, what was the AssistantSuperintendent empowered to do? He could have authorized aperson arrested in pursuance of the provisions of Regulation 18 to bedetained for a period not exceeding ninety days, "reckoned from thedate of his arrest under that regulation", in a place authorized by him.In terms of Regulation 18 a police officer “may search, detain forpurposes of such search, or arrest without warrant, any person who iscommitting or has committed or whom he has reasonable ground forsuspecting to be concerned in or to be committing or to havecommitted, an offence under any emergency regulation …" As wehave seen, the petitioners were not committing, nor had theycommitted any offence under the Emergency Regulations. Nor werethere reasonable grounds for suspecting them to be concerned in orto be committing or to have committed any offence under theEmergency Regulations. Therefore the petitioners could not be saidto have been arrested and detained in accordance with theprocedure established by Regulation 18. Therefore they were notpersons "detained" in pursuance of the provisions of Regulation 18.The special procedures prescribed by Regulation 19 are conditionalupon compliance with Regulation 18. This is evident from the use ofthe word "under" the Regulation 19(1) and the phrase “in pursuanceof" in Regulation 19(2). Not being persons "detained in pursuance of
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Regulation 18”, the procedures for detention and release andproduction in terms of Regulation 19 had no applicability.
Probably realizing that the petitioners could not have beenarrested and detained under Regulation 18, the AssistantSuperintendent, in the Detention Orders under consideration, givesanother explanation for the detention. He states in each case that theDetention Order was issued because it was his “opinion" that it was“necessary" to prevent the person detained “from acting in anymanner prejudicial to the National Security or to the Maintenance ofPublic Order or with a view to complete investigations into his actionsin the commission of offences under the aforesaid Regulations."Regulation 19(2), which he states empowered him, does not in factempower the Assistant Superintendent or any one else to arrest ordetain a person for the stated or any other reasons. What thatregulation does is to prescribe procedures relating to the custody ofpersohs arrested in pursuance of Regulation 18: Where they may bekept, how they should be treated, when and how such detention mayend, and how a judge should act in changing the character of thecustody when a person is produced before him. It was beyond hisauthority to issue such orders. It was ultra vires and the Orders weretherefore worthless pieces of paper. However, if the Secretary to theMinistry of Defence was of opinion with respect to any person that,inter alia, with a view to preventing such person from acting inany manner prejudicial to the national security or to themaintenance of public order, it was necessary to do so, suchSecretary was empowered by Regulation 17(1) (not Regulation 19 -Cf. Godagama v. Ranatunge m to make order that such person betaken into and detained in custody. What the AssistantSuperintendent could have done was to use his powers underRegulation 17(2) to give effect to the Secretary’s orders. The personso detained would then have had to be detained at a placeauthorized by the Inspector-General of Police and such detentionwould, in terms of Regulation 17(3), have been deemed to be “lawfulcustody".
Let us assume that the detention orders were made underRegulation 17(1), having regard to some of their terms. Regulation17(1) of the Emergency (Miscellaneous Provisions and Powers)
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Regulations No. 1 of 1989 says that the Secretary to the Ministry ofDefence should be “of opinion" with regard to certain matters. ThisCourt must be satisfied that (a) the Secretary (b) was of such opinionbefore Regulation 17(1) can be invoked as procedure established bylaw empowering the deprivation of personal liberty. The Secretaryshould be able to state that he himself came to form such anopinion. In Weerakoort v. Weeraratnd's Kulatunga J. found that theSecretary had acted mechanically as a rubber stamp at the behest ofthe police and placed his signature on papers submitted to him. (Seealso the observations of Kulatunga J. in Sasanasiritissa Thero andothers v. De Silva and others "" where it was observed that theSecretary and his Additional Secretaries had “signed ordersmechanically on the request of their subordinates” and the Courtfound that the Secretary and Additional Secretaries "never held theopinion they claim to have entertained.” Cf. Jayaratne v.Tennekoorf'*'; Weerakoon v. Mahendra It is a matter of personaljudgment, And so, for instance, an affidavit supporting the detentionfrom his successor in office would have been of no avail. (SeeDissanayake v. S. I. Gunaratne and othersIn the matters before usit was not the Secretary or even his successor but an AssistantSuperintendent of Police who arrogated the powers of the Secretaryto himself. The Secretary cannot abdicate his authority. Nor mayothers usurp his powers. Otherwise Regulation 17(1) would becomea dragnet in which innocent persons would become enmeshedwhether it would have been against the Secretary's will or not -nolens volens.
It has been suggested that where a petitioner challenges an ordermade under Regulation 17(1) and asserts that the Secretary did notform that opinion which the Secretary was supposed to have formed,(See Kalyanie Perera v. Siriwardenem he must take steps to have therelevant material placed before the Court, (Fernando v. Silva andOthers(,T)and establish his averment by "proof positive". (SeeHirdramani v. Ratnavale !M) cited with approval in SasanasiritissaThero"".
On the other hand, if the Secretary has information to support hisopinion, he must place it before the Court rather than baldly assertingthat he was of the opinion that it was necessary to detain a petitioner.
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Otherwise the Court will decide the matter on the available evidence.What is the position if the information on which the Secretary actedcannot be made public? In such a case the Court may make orderthat such information be made available to the Chief Justice who willmake the information available to the Judges who will adjudicate onthe matter. (Leelaratne v. Cyril Herath and others)<fB1.
Where it appears to the Court on the material available that thedeprivation of liberty was unreasonable, the Court may hold that theSecretary, who is confidently assumed to be a reasonable man, couldnot have formed the opinion and was therefore not of the allegedopinion. (Cf. Hirdaramani v. Rathnavaleim', Wickremabandu v.Herat ft™; Chandrasekeram and Others v. D. B. Wijetunge andOthers^ ; Vidyamuni v. Jayetilleke and others'2); SasanasiritissaThero v. P A. de Silvd',] Kalyanie Perera v. Siriwardene,<H); Pereraand Sathyajith v. Siriwardene (83); Dissanayake v. GuneratneFernando v. Kapilaratne and Others m Ekanayake v. Herath Bandaand Othersl77); Weerakoon v. Weeraratne and Othersl,S); Godagamav. Ranatunge<M.
I should observe that at the date of the relevant detention order,namely 4th March 1992, Regulation 17(1) had been amended, (606/4of 18th April 1990) inter alia, by substituting ‘satisfied” for "ofopinion". This makes no practical difference. Thus in construing thephrase “if the Secretary of State is satisfied", Lord Denning MR inSecretary of State v. Tameside m cited in Siriwardene v. Liyanage(7I),said that the Secretary’s decision "must be reasonable in the sensethat it is or can be supported with good reasons or at any rate be adecision which a reasonable person might reasonably reach."
The 1990 amendment of Regulation 17 in fact seems to be inaccordance with the judicial interpretation of the old Regulation, for itrequires the Secretary to be “satisfied upon the material submitted tohim or upon such additional material as may be called upon for byhim". The opinion is therefore one that must be based upon grounds.Moreover, the amended provision requires the Secretary to besatisfied that ‘it is necessary" to detain the person. The element ofreasonableness is, therefore underlined.
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Channa Pieris and Others v. Attorney-General and Others
(Ratawesi Peramuna Case) {Amerasinghe, J.)
59
These are considerations of general applicability. Thus, similarconsiderations it seems apply, mutatis mutandis, to arrests underthe Prevention of Terrorism Act. In Somasiri and Somasiri v.Jayasena and Others 1721 Kulatunga J., following Senthiinayagam v.Seneviratnetm said; “If such arrest or detention is challenged, theyshould justify their conduct objectively by means of sufficientevidence." In that case, the Detention Order was found to have beensigned by the Minister "mechanically at the request of the policewithout giving his mind to the preconditions under Section 9 formaking such orders." The order was held to be “vitiated" and Article13 was declared violated. In Dissanayake v. Superintendent MaharaPrison wtoo the Minister was held to have made the ordersmechanically and the detention was held to be "unlawful".
In the matters before us, no evidence was placed to explain thereasons for the Detention Orders that were partly formulated in termsof Regulation 17(1).
Realizing probably that neither the Secretary, for want of reasons,nor an Assistant Superintendent, for want of authority, could haveinvoked the procedure prescribed by Regulation 17, the DetentionOrders state alternatively that the petitioners were being detained“with a view to complete investigations” into their actions in thecommission of offences under the “Emergency Regulations."
Neither the Secretary nor The Assistant Superintendent wereempowered by Regulation 17 to detain the petitioners for the purposeof completing investigations relating to the commission of offences;Regulation 17(1) is not concerned with the investigation of offencesbut with measures aimed at the prevention of certain specified kindsof unlawful behaviour, (see Godagama v. Ranatunge)IS4> and so,presumably, despite its terms, Regulation 19(2) is mentioned in thesecond set of detention orders as the empowering taw.
A further matter should be referred to. The orders – X3A in 152/92and X3A – X9A in 155/92 – are undated but are stated to be operativefrom 27,2.92 to 17.5.92. However, in paragraph 4 of his affidavit filedin application 152/92, the third respondent states that he was filing
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detention “orders" in that case dated 4.3.92. There were twodetention orders he filed in application 152/92. One of the two Orderswas X3A. The attempt in the later Orders to explain the taking of thepetitioners into custody on the ground that it was to prevent themfrom “acting in a manner prejudicial to national security" or to “themaintenance of public order", was obviously an attempt to supplypossible deficiencies in the other orders. Neither set of detentionorders were of any use to Bandara and Weerasekere, even if theOrders were shown to them, for they were released from custody onthe date of the orders viz., 3rd March 1992. As far as the others wereconcerned, the Detention Orders cover a period of “84 days” from4th March, 1992. Why 84 days and not 90 as determined byRegulation 19{2) under which the Assistant Superintendent states hewas acting? Perhaps, as Mr. Goonesekere suggested, it was, albeitmistakenly, supposed that the other detention orders “justified” thefirst six days of detention? It is not for the police to determine thecircumstances in which a person may be detained for investigation.That is a matter determined by Regulation 18(1). Nor is it for thepolice' to determine the maximum or minimum period of detention.That ib a matter determined by Regulation 19(2). (Cf. Jayatissa v.Dissanayake)(741. However, the Inspector-General of Police and theother authorized officers mentioned in Regulation 19(4) maydetermine the place of detention and the applicability of the PrisonsOrdinance with regard to persons detained. Fresh detention orderswere necessary because the places of detention were altered andsuch places must, in terms of Regulation 19(2), be indicated in theDetention Orders. Detention except at a place authorized wouldmake the custody otherwise than in accordance with procedureestablished by law. (See Dissanayake v. Superintendent MaharaPnson m).
However, the detention orders had more than that simple objectivein view. They purported to be in terms, orders made under Regulation17. Although detention orders under Regulation 17 may be issuedwhile a Detention Order under Regulation 19 or under the Preventionof Terrorism Act is in force, yet there must be some justification for it.(See Yapa v. Bandaranayake(46>; Lankapura v. P D. A. Perera andOthers(75)- Sasanasiritissa Them and Others v. De Silva and Others
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Channa Pieris and Others v. Attorney-General and Others
(Ratawesi Peramuna Case) (Amerasinghe, J.)
61
Lankapura v. Douglas Perera and othersSee also Jayaratne v.Tennekoon ),WI. A Detention Order under Regulation 17 is not simplya device to hold a person arrested under Regulation 18, (andtherefore required to be released not later than 90 days after thearrest) in custody for an unspecified period. Nor is it a device toextend the period of detention after the lapse of the ninety day periodfor purposes of further investigation. Regulation 17 is there to enablethe Secretary to the Ministry of Defence, either in respect of personsalready in custody or others, to detain by order a person who, he issatisfied on the available material, it is necessary to detain to preventhim acting in any manner described in 17(1) (a) and/or (b). Therewas no explanation for the second Detention Orders in this case. Theevidence for making the arrests in terms of Regulation 18(1) was theonly evidence placed before us, and that evidence could not haveled to the formation of an opinion that it was necessary to detain thepetitioners in terms of Regulation 17(1). It may well be, as it was forinstance the case in Yapa v. Bandaranayake (supra), that thegrounds warranting an arrest under Regulation 18 may at the sametime warrant a detention in terms of Regulation 17. However that isnot so in the matters before us.
The second set of detention orders, which were applicable to allthe petitioners, show that the respondents were not making thearrests in accordance with a procedure established by law but ratherunder a procedure evolved by them, albeit combining elementsfound in two distinct procedures designed with quite separate andclearly differentiated objectives in view. In any event, for the reasonsexplained, even the borrowed elements of the hybrid procedure havenot been established. I therefore declare that the petitioners'fundamental rights guaranteed by Article 13(1) of the Constitution notto be arrested except according to procedure established by lawhave been violated,
PETITIONERS NOT INFORMED OF REASONS FOR ARREST -FURNISHING WRITTEN REASONS FOR ARRESTArticle 13(1) provides not only that a person who is arrestedshould be arrested in accordance with procedure established by lawbut also that "Any person arrested shall be informed of the reason forhis arrest."
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The petitioners complained that they were not served withDetention Orders giving reasons for their arrest. In Kumaranatunge v.Samarasinghe<IW followed in Sasanasiritissa Thero v. De Silva andOthers ,M1 Soza, J. observed: “Nowhere is service of the detentionorder made imperative by any rule of law. The order really serves asauthority for the person putting it into effect. In fact, even under theCode of Criminal Procedure Act, no service of a charge sheet orWarrant of arrest where the arrest is on a Warrant is provided for. Theperson being arrested can ask to see the Warrant or order but thereis no legal requirement that it should be served. No legalconsequences flow from the non-service of the order."
Admittedly neither Section 53 of the Code of Criminal Procedurenor Regulations 17 or 19 stipulate that the reason for arrest should becommunicated to the person in a written order and that he should besupplied with a copy of the order. I therefore hold that the failure toprovide the petitioners with copies of detention orders does notinfringe any constitutional right. However, as Colin Thome, J.observed in Nanayakkara v. Henry Perera (supra) “it is in the interestof natural justice" that this should be done. (See also per Kulatunga,J. in Wickremabandu v. Herath and others12,1; Wijewardene v. Zain(,3);Perera and Sathyajith v. Siriwardene<M>; Jayaratne v. Tennekoon l6SSo much for furnishing a copy of the order with reasons for arrest.The need to give reasons, apart from the form of doing so, is anothermatter.
THE NEED FOR AT LEAST AN ORAL EXPLANATIONThe petitioners were arrested under the Emergency Regulations.The command in Article 13(1) that “Any person arrested shallbe informed of the reasqp for his arrest" must be observed evenwhen an arrest is made under the Emergency Regulations.(Chandradasa v. Lai Fernando Pushpakumari and Jayawickramav. Mahendra and Others (76); Weerakoon v. Mahendra and Others'’0;Gamlath v. Silva and Others '*S); Munidasa and Others v. Seneviratneand Others W)- Cf also Piyasiri v. Fernando ra; Wijewardena v. Zain "3I;Perera and Sathyajith v. Siriwardene m.
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The opposite view was taken in Kumaranatungev. Samarasinghe1,91 {Cf per Kulatunga J. in Wickramabandu v. Herathand Others1981 in relation to orders made in terms of Regulation 17(1).Kumaranatungdm was distinguished in Wijesiri v. Rohan FernandoiW).
Admittedly, restrictions of the exercise and operation of the rightmight have been imposed by the Emergency Regulations in terms ofArticle 15(7) of the Constitution: but no such restriction has beenmade of the constitutional right to be informed of the reasons forarrest. In this connection it might be observed in passing that H. A.G. de Silva J. in Wickremabandu v. Cyril Herath and Others .Fernando J. agreeing; (cf. also the observations of Kulatunga J.which are, however, somewhat differently expressed) said that,although a restriction of a right may be permissible if it might survive,albeit in an attenuated form, yet, having regard to its nature, thecurtailment of the right to be informed of the reason for arrest mightamount to a denial.
Regardless of possible challenges to the validity of futureRegulations that might impinge on Article 13(1). It has never been theposition that any Regulation or other law has hitherto taken away theright to be informed of the reason for arrest conferred by Article13(1). It may happen. It has not yet happened. For merciesvouchsafed in this regard, the petitioners in giving thanks might wellhave said ‘non nobis'.
It may be observed in passing that, although in terms of Article22(1) of the Indian Constitution “no person who is arrested shall bedetained in custody without being informed, as soon as may be, ofthe grounds for such arrest…", Clause (3) (b) of Article 22 providesthat Clause (1) shall not apply *to any person who is arrested ordetained under any law providing for preventive detention."
The right to be informed of the reasons for arrest is not set out inRegulation 17 or 18. It is to be found in Article 13(1) of theConstitution. That provision cannot be repealed by Regulations,much less by judicial interpretation. Although in terms of Article 15(7)the exercise and operation of the right to be given reasons may besubject to restrictions prescribed by law, including Regulations, nosuch law exists. If the recommended practice of issuing DetentionOrders with written reasons for arrest cannot be observed, then the
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person concerned should “at least" be orally given reasons, for thatis his untrammeled right today under Article 13(1) of the Constitution.(Cf. Kaiyanie Perera v. Siriwardene)ts3>.
Soza, J. referred to the Code of Criminal Procedure. Attentionshould be drawn to Section 53 of the Code of Criminal Procedurewhich provides that “The person executing a Warrant of arrest shallnotify the substance thereof to the person arrested, and if so
required by the person arrested shall show him the Warrant or a copythereof signed by the person issuing the same.” The need for‘scrupulously and diligently” observing the terms of Section 53 tosafeguard the “liberty of the subject" was stressed by Seneviratne J.in Dharmatilleke v. Abeynaikeim.
Assuming that the petitioners Knew the general nature of the causefor arrest, and that therefore they were sufficiently informed of whythey were being arrested (Cf. Christie v, Leachinsky(791; Lundestron v.Cyril Herath and Others namely, that they were supposed to bemembers of the JVP, was that sufficient? I do not think so. Theconstitutional right is not to be simply given any explanation. Forexample, 'I do not like the shape of your nose’ or ‘I do not like yourpolitical party' are in a sense explanations or reasons; but a reasonfor arrest, a reason to deprive a person of his personal liberty withinthe meaning of Article 13(1) of the Constitution must be a ground forarrest. There can be no such ground other than a violation of the lawor a reasonable suspicion of the violation of the law. In Gunasekera v.de Fonseka,4a, followed in Kumarasena v. Shriyantha and Others mH. N. G. Fernando, C.J. said that a citizen has a right to resist anunlawful arrest, but he can exercise that right if he is informed of the‘grounds upon which he is being arrested". It is, the Chief Justicesaid, ‘only if a person is informed of the ground for his arrest, or inother words, of the offence of which he is suspected, that he will havean opportunity to rebut the suspicion or to show that there was somemistake as to identify."
According to the averments of some of the petitioners (eg. seeparagraph 6.7 of the affidavit of Malinda Channa Pieris Seneviratne inApplication 146/92: paragraphs 2.5, 3.3 of the affidavit of KuruwitageNandana Perera in S.C. Application 151/92; paragraphs 3.3. and 4.4.
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Channa Pieris and Others v. Attorney-General and Others
(Ratawesi Peratmma Case) (Amerasinghe, J.)
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of the affidavit of Jayasinghe Mudiyanselage Janaka PriyanthaBandara in Application 152/92; paragraphs 2.4 of the affidavit of thePallimulle Hewa Geeganage Pradeep Chandraratne in application153/92; paragraphs 4.2 and paragraph 4.14 of the affidavit ofRanawake Achchilage Patali Champika Ranawake in Application154/92; paragraphs 3.3. and 4.3 of the affidavit of AvalikaraGalappathige Muditha Mallika Wimalasuriya in Application 155/92) itappeared to them that they were being arrested because the policebelieved they were members of the JVP, sometimes described by thepolice officers during the arrest as “JVP dogs". TheThird Respondentwho was, without dispute, the man behind the arrests, states that hewent to the temple simply because he was told that there was ameeting of the JVP but that he made the arrests because he formedthe opinion, based on what he heard, that there was a conspiracy tooverthrow the Government. For the reasons I have explained indiscussing the circumstances of the arrest, I consider it improbablethat the Third Respondent mentioned, much less "explained" thecharges set out in the detention orders referred to. The thirdrespondent simply arrested the petitioners because he believed themto be members of the JVP, and therefore, but for no other reason,suspecting them to be engaged in some unlawful activity designed tooverthrow the Government. As we have seen, he had no reasonableground. He was, however, hoping that some evidence might turn upto make his suspicion reasonable. As in Wijewardene v. Zairfn), thepetitioners in the matters before us were arrested for subversiveactivity “on speculation in the hope of obtaining evidence of suchactivity but admittedly without informing [them] of such reason."
The JVP was not a proscribed party. Therefore an awareness onthe part of the petitioners that they were being arrested for beingsupposed to be members of the JVP did not discharge therespondents from their duty or giving a reason for the arrests in thesense of telling them what offence or offences they were supposed tobe concerned in or committing or to have committed. If he wasarresting the petitioners for violating Regulations 23 (a), 23 (b), 45and 46, as the first set of Detention Orders suggest, he did not givethem the true reasons for the arrest, The officer was neither entitled tokeep the reasons to himself nor to give a reason which was not thetrue reason. (Christie v. Leachinsky supra; Wijewardene v. Zain)(13).
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tf a person is taken into custody, or if a person already in custodyis to continue arrested in terms of Regulation 17, as the seconddetention orders in the matters before us purport to order, the personso detained must in terms of Article 13(1) of the Constitution beinformed of the reason for his arrest or state of arrest. In the case ofan order made under Regulation 17 the person arrested should knowwhy it was necessary to detain him with a view to preventing him fromacting in any manner prejudicial to the national security or themaintenance of public order and to the maintenance of essentialservices or preventing him from acting in any manner contrary to theprovisions of Regulation 41 (a) or (b) or Regulation 26. No suchgrounds were orally given in the matters before us.
The respondents claimed that the reasons for arrest were set out inthe Detention Orders which were shown to the petitioners. If the firstset of detention orders were shown to the petitioners, they could onlyhave been usefully shown to those in respect of whom the orderswere issued. As we have seen there were no orders with regard tosome of the petitioners. Even as far as those petitioners in respect ofwhom detention orders were issued are concerned, the orders merelyset out the provisions contravened and do not explain how thepetitioners contravened them. A mere reference to a Regulation in aDetention Order does not sufficiently explain the reason for arrest.(Weerakoon v. Mahendra (,1). Cf. also the observations ofSharvananda, J. quoted below). Quoting chapter and verse is neithernecessary nor sufficient.
The second set of Detention Orders do not give reasons. Theymerely set out the objects and purposes in pursuance of which thearrest and detention were made, namely, the prevention of thepetitioners “acting in a manner prejudicial to the national security orthe maintenance of public order or with a view to completeinvestigations into his actions." What was the prejudicial manner inwhich the petitioners were likely to act? What were the “actions" thatwere being investigated? The constitutional right of a person is to beinformed of the reason – the grounds, material facts and particulars -for his arrest and detention and not merely the objects and purposesof the arrest and detention. It is such information that will enable himto take meaningful steps towards regaining his liberty. (See perKulatunga,J. in Wickramabandu v. Herath m. See also Weerakoon v.Weeraratne)0M.
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(Ratawesi Peramuna Case) (Amerasinghe, J.)
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Moreover, as we have seen, the orders appear to have beenissued on 3rd March ,1992 although the petitioners had been takeninto custody on 27th February. 1992. Even if the Orders were shownto the petitioner the information was conveyed much too late to servethe purpose of being informed of the reason for arrest, namely theregaining of one's liberty expeditiously by explaining away thesuspicions held by the arresting officer. As far as Bandara andWeerasekera were concerned the Detention Orders were issued onthe date of their release.
Justice Sharvananda in his treatise Fundamental Right8 in SriLanka states as follows at p. 141:
“The requirement that a person arrested should be informedof the reason for his arrest is a salutary requirement. It is meantto afford the earliest opportunity to him to remove any mistake,misapprehension or misunderstanding in the mind of thearresting authority and to disabuse the latter’s mind of thesuspicion which triggered the arrest and also for the arrestedperson to know exactly what the allegation or accusationagainst him is so that he can consult his attorney-at-law and beadvised by him. Mariadas v. Attorney-General (79 All thematerial facts and particulars must be furnished to the arrestedperson because they are the reasons or grounds for his arrestto enable the arrested person to understand why he has beenarrested. A bald statement that the arrestee is a terrorist falls farshort of the required standard. Further, it is important that thecommunication of the reasons should be in a language thearrestee understands. The adequacy of the reasons for arrestrequire that they are: (a) such as to prima facie warrant arrestand (b) based upon information which is considered reliable.The necessity to give reasons serves as a restraint on theexercise of power and ensures that power will not be arbitrarilyemployed."
The obligation of the person making the arrest is to give the reasonat the moment of the arrest, or where it is in the circumstances notpracticable, at the first reasonable opportunity. (Mallawarachchi v.
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Seneviratne,40) followed in Elasinghe v. Wijewickrema and others InKatyanie Perera v. Siriwardene<63t the petitioner was not given reasonsimmediately but within a reasonable time. In Lalanie and Nirmala v.De Silva and others181 the giving of reasons a day after the arrest washeld to be violative of Article 13(1). In Wickremabandu v. Herath andothers1261 Kulatunga. J. states that Regulation 17(4) and (5) “permits adelay" in informing a person deprived of his liberty by an order madein terms of Regulation 17(1). With great respect Regulation 17(4) and(5) “permit" no such delay. (See Regulations 17(4) and 17(5). Indeed,delay in giving reasons would postpone the taking of steps tomake representations to the President so that the AdvisoryCommittee might expeditiously advise the Secretary to the Ministry ofDefence).
Justice Sharvananda in the passage from his work which I havequoted, explains that an object of the requirement in Article 13(1) ofthe Constitution that "Any person arrested shall be informed of thereason for his arrest” is that the earliest opportunity should be givento the person who is arrested or about to be arrested of securing hisliberty by removing any misapprehension, misunderstanding ormistaken belief in the mind of the authority concerned. By failing togive reasons, the third respondent deprived himself of theopportunity of clarifying the matter and acting or otherwise, as it wasthe case in Mariadas v. A-G<T9>. On the other hand by giving reasonsin time the petitioners may have been able to secure their releaseexpeditiously as it was the case in Malawarachchi v. Seneviratne (40’In Christie v. Leachinsky(?0) (followed in Munidasa and others vSeneviratne and others <49). and per Perera J. in Faiz v. Attorney-General and others('61, Lord Chancellor Simon said: “If the charge orsuspicion under which the man is arrested is then and there madeknown to him, he has the opportunity of giving an explanation of anymisunderstanding or of calling attention to other persons for whom hemay have been mistaken with the result that further inquiries maysave him from the consequences of false accusations."
Explanations from the person arrested may serve its purpose onlyif the officer making the arrest is perceptive enough and not stupid orwitless. It also presupposes that the real reason is given.
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(Ratawesi Peramuna Case) (Amerasinghe, J.)
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Rev. Rathana explained to the Police “You gentlemen aremistaken. We are not JVP but Ratawesi Peramuna officials discussingmatters. You may take us away, but you will realize later that youwere mistaken." (See para 3.1 of the Affidavit of M. D. Daniel in S.C.Application 147/92; paragraph 3.6 of the Affidavit of SingappuliHewage Sunny Dayananda in S.C. Application 148/92; para 2.10 ofthe affidavit of Athureliya Rathana in S.C. Application 149/92; para2,6 of the affidavit of Jayasinghe Mudiyanselage Janaka PriyanthaBandara in S.C. Application 153/92; para 4.3 of the affidavit ofRanawaka Arachchige Patali Champika Ranawake in S.C.Application No. 154/92; and para 3.4 of the affidavit of AvalikaraGalappathige Muditha Mallika Wimalasuriya in S.C. ApplicationNo. 155/92).
The Third respondent, however, remained unyielding andobdurate. Why did the third respondent so recklessly throw away theopportunity of revising his beliefs? Why was he so utterly obtuse?was he blinded by zeal? The real reason for the arrests was, as thethird respondent admits in his affidavits, that he supposed that thepetitioners were engaged in a conspiracy to overthrow theGovernment. This was not. as we have seen, based on reasonableground, but on the erroneous assumption that (a) the JVP was once aproscribed party, and therefore, a party continuing to be engaged inunlawful activity and forever branded with the mark of illegality andthat (b) consequently, according to a previously conceived opinion,members of the group assembled at the temple who were, acordingto the telephone message, members of the JVP were necessarilyengaged in purposes prejudicial to national security and themaintenance of public order. One may sympathize with thecommitment of the third respondent to his cause, but I cannot holdthat he was constitutionally free to ignore the salutary safeguardsestablished by law for arresting the petitioners. Law enforcementofficers must be ever mindful of the fact that respect for proceduresestablished by law, although they may sometimes appear to beirksome, are, in the, words of Justice Stewart in Walter v City ofBirmingham(eo>, “a small price to pay for the civilizing hand of law,which alone can give abiding meaning to constitutional freedom."Having regard to the fact that all the information he had was thatconveyed by an anonymous caller, should he have not acted more
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cautiously even though he might have earlier considered thetelephone messenger – albeit mysterious – to be reliable andcredible?
The third respondent was told that the petitioners were notmembers of the JVP. The place of arrest, the Kawduduwa temple, assome of the petitioners admit, was a “noted" venue for politicalactivity (See paragraph 2.9 of the affidavit of Rathana dated 14thApril 1992; paragraph 3.9 of the affidavit of Champika Ranawakedated 15 April 1992 in S.C. Application 154/92). But of what sort ofpolitical activity: Was it not equally well-known in the area of whichthe Third and Fourth respondents were police officers as the scene of• the assasination in December 1988 by the JVP of Rev.Pohoddaramulle Pemaloka? (See para. 2.9 of the affidavit of Rathanadated 14th April 1992; and paras 2.1 and 2.2 of the affidavit dated15th April 1992 of Rev. Wimalasara, who was ordained by Pemalokaand succeeded him as the chief incumbent when Rev. Nandalokaabandoned his robes: and para 3.0 of the affidavit of ChampikaRanawake dated 15 April 1992 in S.C. Application 154/92). So muchso that, in the minds of at least some of the petitioners, the place ofthe meeting was simply {Rev.. Pemaloka’s temple" (See eg. para 3.4of the affidavit of Dayananda in S.C. Application 148/92). And if theversion of some of the petitioners as to the little speech the ThirdRespondent was supposed to have made as soon as he came intothe Police Station in the early hours of the 28th of February is true,(with regard to this, see the discussion later on in relation to thealleged violation of Article II) then the assassination of Pemaloka by amember .of the JVP must surely have been very much in his mind?(See Nandana Perera 151/92, 3.3; Bandara 152/92, 4.3;Wimalasuriya 155/92, 4.3). Was the temple in which the chiefincumbent, namely Rev. Wimalasara. a priest ordained by a personwho was murdered by the JVP a likely place for a JVP meeting?
Although in his affidavits in respect of Seneviratne (146.92) andDayananda (148/92) the Third Respondent does not state that hespecifically explained the charges to them at the time of their arrests,yet he does so in the affidavits filed by him in respect of Daniel(147/92), para 9), Rathana (149/92 para 7), Wimalasara (150/92, para9), Nandana Perera (151/92 para 13), Bandara (152/92, para 15),
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Chandanaratne (153/92, para 13), Ranawake (154/92 para 15) andWimalasuriya, Dayarathne, Pemarathana and Kitulgala Upali (155/92para 15).
However, in respect of all the petitioners, the Third Respondentstates as follows: "Upon listening to the speeches, I formed theimpression that they were engaged in a conspiracy to overthrow theGovernment. A such, I tapped at the door and got it opened andentered the room where the discussion was taking place and havingexplained the Charge against the suspects, took them into custody. Iannex hereto marked … Detention Order … " (See the ThirdRespondent’s affidavits in the matters of Seneviratne 146/92 para 5:Daniel 149/92 para 4; Dayananda 148/92 para 5; Rathana 149/92para 4 – where, however, an order is filed but not referred to in theaffidavit; Wimalasara 150/92 para 5; Nandana Perera 151/92 para 5;Bandara 152/92 para 4; Chandanaratne 153/92 para 5; Ranawake154/92 para 5 and in respect of Wimalasuriya ang other applicants in155/92 para. 5).
What was the "charge" he says he explained? That the petitionerswere conspiring to overthrow the government by unlawful means? Ifthe contents of the first set of Detention Orders filed by the ThirdRespondent in Applications 152/92 and 155/92 relating to the arrestand his affidavits are anything to go by, the charge he had in mindwas the offence of conspiracy defined in Regulation 23(a), which,however, for the reasons explained, was not committed nor which hecould have reasonably suspected the petitioners to be concerned inor to be committing or to have committed. What he says he heardmay have lead him to conclude that there was a conspiracy tooverthrow the Government, but what he heard could not havereasonably led him to believe or suspect that there was a conspiracyto overthrow the Government by unlawful means. Therefore, therewas no reason for the arrests, in the relevant sense, which the ThirdRespondent could have explained.
If the petitioners were, as the Third Respondent suggests,engaged in a conspiracy to overthrow the Government by unlawfulmeans and he entered the meeting place, as he says he did, then hewould have caught them flagrante delicto and there would have been
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no need to give any reasons, for then it would have been known tothe petitioners why they were being arrested. (See per De Alwis J.Joseph Perera v. AG351, following Gunasekera v. Fonseka (*a See alsoJayatissa v. Dissanayake SC Application 74/88 SC Minutes 10 July1989). No such position was taken up by the Third Respondent, forhe probably entered the meeting place before the meeting wasresumed, and even if we assume that he did listen to the speecheshe reported in his notes, for the reasons I have given, there wasnothing he heard that could have reasonably led him to suspect thatan offence was being committed or about to be committed.
DECLARATION AND ORDER IN RESPECT OF ARTICLE 13(1)For the reasons explained I am of the view that the petitioners (a)were not arrested and kept arrested in accordance with a procedureestablished by law and (b) that they were not informed of the reasonfor their arrest. I therefore declare that the fundamental rightsguaranteed by Article 13(1) of the Constitution were violated inrespect of Malinda Channa Pieries, applicant in S.C. Application146/92; M. D. Daniel, applicant in S.C. Application 147/92; SingappuliHewage Dayananda, applicant in S.C. Application 148.02; AthureliyaRathana (Ranjith), applicant in S.C. Application 149/92; Rev.Thalpitiye Wimalasara, applicant in S.C, Application 150/92;Kuruwitage Nandana Perera, applicant in SC Application No. 151/92;Jayasinghe Mudiyanselage Janaka Priyantha Bandara, applicant inS.C. Application 152/92; Pallimulle Hewa Geeganage PradeepChandanaratne, applicant in S.C. Application No. 153/92; RanawakeArachchige Patali Champika Ranawake, applicant in S.C. Application1554792; and the following applicants in S.C. Application 155/92,namely, Avalikara Galappathige Muditha Mallika Wimalasuriya,Gileemalage Janaka Priyantha Dayaratne. KarunaratneParanavithana, Weerasekera Mudalige Anura Weerasekera, Rev.Kalupahana Piyarathana, Rev. Ambalanthota Premarathana and Rev.Kithulgala Upali. I
I make order that each and every one of the persons named in thepreceeding paragraph, except Rev. Thalpitiye Wimalasara, shall beseverally paid a sum of Rs. 5,000 by the State as a solatium for the
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violation of both, as distinguished from each of, the rights guaranteedby Article 13(1) of the Constitution as aforesaid.
Rev. Thalpitiye Wimalasara was not present at the meeting placeand was sleeping in his room in the temple, not only because he wasin ill-health but also because he was not associated with thePeramuna. I therefore make order that Rev. Thalpitiye Wimalasara theapplicant in SC Application 150/92 be paid a sum of Rs. 10,000 as asolatium by the State for the violation of his fundamental rightsguaranteed by Article 13(1) of the Constitution.
THE FACT OF DETENTION AFTER TAKING THE PETITIONERSINTO THE CUSTODY OF THE LAWAfter the arrest of the sixteen petitioners they were taken to theWadduwa Police Station on 27th February, 1992. On 28th FebruaryChampika Ranawake was taken for some hours to Kalutara forinterrogation and brought back to Wadduwa. (See paragraph 4.9 ofthe affidavit of Ranawake in S.C. Application 154/92 dated 15th April1992). It would seem that the University students among the personsarrested, probably eight in number, were taken on March 3rd, 1992 tothe office of the Police concerned with Security Co-ordination atLongdon Place, Colombo, and except for Bandara (the applicant inS.C. 152/92) and Weerasekere (an applicant in S.C. 155/92), weresent back to Wadduwa Police Station. (See para 4.8 of the affidavit ofBandara in S.C. 152/92 and para 3.7 of the affidavit of NandanaPerera in S.C. Application 151/92. See also para 6.6. of Seneviratneof 14th April 1992 in Application 145792; para 3.4 of Wimalasaradated 15th April 1992 in Application 150/92; para 3.10 of the affidavitdated 15th April 1992 of Chandanaratne in S.C. Application 153/92;and para 4,8 of the affidavit dated 15th April 1992 of Wimalsuriya inApplication 155/92). Bandara and Weerasekera were kept back atLongdon Place so that they might present themselves at the Universityexaminations. However, they refused to do so while in policecustody. (See para. 4.8 of the affidavit dated 15th April 1992 ofBandara in S.C. Application 152/92). Bandara and Weerasekere werethen released on 3rd March 1992 on condition that they returned topolice custody on 21st March 1992. (See para 3.4 of the affidavit ofWimalasara dated 15th April 1992 in Application 150/92; para 3.7 ofthe affidavit of Nandana Perera in Application 151.9; para 4.8 of the
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affidavit of Bandara dated 15th April 1992 in Application 152/92; andpara 4.8 of the affidavit of Wimalasuriya dated 15 April 1992 inApplication 155/92).
The petitioners (other than Bandara and Weerasekere) were takenfrom Wadduwa Police Station to Colombo on 4th March 1992 andreleased on 17th March 1992 after being produced before the FortMagistrate in connection with case No. 25841. Between 4th Marchand 17th March 1992, Seneviratne and Daniel were detained at thepremises of the Police concerned with Security Co-ordination atLongdon Place, Colombo. Dayananda, Wimalasuriya,Chandanaratne, Ranawake, Dayaratne and Piyarathana weredetained at the Police Station, Pettah. Rathana. Nandana Perera,Wimalasuriya, Paranavithana, Premarathana and Kitulgala Upali weredetained at Maradana Police Station. (Cf. paras 6.6 and 6.8 ofSeneviratne's affidavit of 14th April 1992 in Application 146/92; paras3.7 and'3.10 of Daniel's affidavit of 14th April 1992 in Application147/02; para 4.9 of Dayananda's affidavit of 14th April 1992 inApplication 148/92; para 4.3 of Rathana's affidavit of 14th April 1992in Application 149/92; paras 3.2 and 3.4 of Wimalasara's affidavit of15th April, 1992 in Application 15-/02; paras 3.6 and 3.12 of NandanaPerera’s affidavit of 15th April 1992 in Application 151/92; paras 3.5and 3.10 of Chandanaratne's affidavit of 15th April 1992 inApplication 153/92; para 4.12 of Champika Ranawake’s affidavit of15th April 1992 in Application 154/92; and para 4.8 of Wimalasuriya’saffidavit of 15 April 1992 in Application 155/92).
The evidence relating to the places of detention and release givenby the petitioners is corroborated by the Third Respondent inparagraphs 5, 6, 7 and 9 of his affidavit of 24th August 1992 filed inS.C. Application 146/92; paragraphs 4, 5 and 9 of his affidavit of 9September 1992 in S.C. Application 147/92; paragraphs 5,. 6, 7, 8and 9 of his affidavit of 9th September 1992 in S.C. Application148/92; paragraphs 4, 5, 6 and 7 of his affidavit of 9th September1992 in S.C. Application 149/92; paragraphs 5, 7 and 9 of his affidavitof 9th August 1992 in S.C. Application 150/92; paragraphs 5, 6, 7. 911, 12 and 13 of his affidavit of 9th September 1992 in S.C.Application 151/92; paragraphs 4, 5, 6, 7., 8, 10, 12 and 13 of hisaffidavit of 9th September 1992 in S.C. Application 152/92;
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paragraphs 5, 6, 7, 9, 11 and 13 of his affidavit of 9th September1992 filed in S.C. Application 153/92; paragraphs 5, 6, 7, 9, 11 13,14, 15, 16 and 17 of his affidavit of 9th September 1992 in S.C.Application 154/92 and in paragraphs 5,6, 7, 8., 9,11,13,14 and 15of his affidavit of 9th September 1992 in S.C. Application 155/92.
Corroboration is also available from the affidavits of ChiefInspector Opathavalage Wimaladasa. (See paragraphs 3 and 5 of hisaffidavit of 20th August 1992 in S.C. Application 146/92 andparagraphs 3 of his affidavit of 8th September 1992 in S.C.Application 147/92) as well as from the Detention Orders and extractsfrom the Routine Information Book filed by the respondents and fromthe several affidavits of relatives and others who visited thepetitioners while they were in police custody.
ARTICLE 13(2) OF THE CONSTITUTIONThe petitioners allege that Article 13(2) of the Constitution wasviolated by the Respondents. Article 13(2) provides that 'Everyperson held in custody, detained or otherwise deprived of personalliberty shall be brought before the Judge of the nearest competentcourt according to procedure established by law, and shall not befurther held in custody, detained or deprived of personal libertyexcept upon and in terms of the order of such judge made inaccordance with procedure established by law."
ARTICLE 13(2) – A SALUTARY PROVISIONThe right to be produced before a judge is a "salutary provision toensure the safety and protection of arrested persons.” (SeeEdirisuriya v. Navaratnam (2"; Nallanayagam v. Gunatilleke (01);Weerakoon v. Mahendral'n Weerakoon v. WeeraratneM!S); Perera andSathyajith v. Siriwardene <83t; Kalyanie Perera v. Siriwardene (M);Weerakoon v. Mahendra and others,1,).
OBJECT OF THE PROVISIONThe “purposes" of Article 13(2) are not, as stated in Wijesiri v.Rohan Fernandd'01, "enumerated" in that provision. However, in
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general, the purpose of the provision is to enable a person arrestedwithout a Warrant by a non-judicial authority to make representationsto a judge who may apply his “judicial mind" to the circumstancesbefore him and make a neutral determination on what course ofaction is appropriate in relation to his detention and further custody,detention or deprivation of personal liberty, (Cf. Sharvananda,Fundamental Rights, at p. 142; Gerstein v. Pugh ,82'; Cf. also thedecisions of the European Court on Human Rights in the Schiessercase?®; the Skoogstrom case(M; the McGoff case<8S>; Cf. also perQoonewardene, J. in Mohamed Faiz v. The Attorney-General andOthers<16’.
HAVING REGARD TO THE PURPOSES OF ARTICLE 13(2),PRODUCTION MUST BE REALThe right to be produced before a judge will be beneficial to theperson arrested and conducive to a person seeking his liberty, only ifthe “production" is real and not technical, as for instance when theperson is kept in a motor vehicle outside the judge’s house while thepolice officer alone meets the judge and obtains his order. (SeeEkanayake v. Herath Banda and Others)l271. In Withanachchi v. CyrilHerath and Others 1461 Seneviratne J. deplored the practice of“producing” suspects at judges' residences which he said was a“common" practice of police officers “to prevent lawyers fromrepresenting a party … and to prevent any application on behalf of asuspect being made." His Lordship also drew attention to similarobservations he had made in Dharmatilleke v, Abeynaike(7,), Where aperson is produced only in a technical sense so that the purposes ofArticle 13(2) are incapable of fulfillment, such a person cannot besaid to have been brought before the judge according to procedureestablished by law and Article 13(2) of the Constitution will beviolated. In Ekanayake v. Herath Banda the petitioner wasarrested on 11th September 1989 in terms of a Detention Orderunder Regulation 19 and later detained under a Detention Orderunder Regulation 17. There was no reasonable basis for either order.On 20th September 1989 the petitioner was taken to the residence ofthe Magistrate and warned not to say anything to the judge. While thepetitioner was outside the residence, the Magistrate came up to thevehicle. Article 13(2) was declared violated. Fernando J. observed
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that “production does not mean being shown or exhibited to a judicialofficer, nor does it connote mere physical proximity: 'production'requires at least an opportunity for communication and this has beendenied to the petitioner. She was thus denied the opportunity to makea prompt complaint of her arrest on 11th September 1989, the failureto inform her of the reason for arrest and the torture inflicted on her on13,9.89.’’
THE RIGHT TO BE PRODUCED MAY BE SUBJECT TOLIMITATIONSAlthough the constitutional right to be brought before a judgeexists and remains "untouched" (as G. P. S. de Silva, J. observed inJoseph Silva and Others v. Balasuriya and Others ™ as long asArticle 13(2) of the Constitution remains as it is, (Cf, the observationsof Kulatunga, J. in Wickremabandu’s case™, yet the exercise andoperation of that right is, in terms of Article 15(7) of the Constitution,subject to such restrictions as may be prescribed by law, inter alia, inthe interests of national security and public order. "Law’’ includesregulations made under the law for the time being relating topublic security. The relevant provisions of the law in force at the timeof the arrest must be examined in order ascertain whether, if at all,and in what manner the right guaranteed by Article 13(2) may beoperative.
THE WHITTLING EFFECT OF THE EMERGENCY REGULATIONSWith regard to persons arrested under the EmergencyRegulations, the functions of the judge are severely restricted and theforce and importance of the ‘salutary’ provision have beensignificantly diminished. Both under the old proviso and in terms of anew proviso the Regulation 19(2) introduced on 15th February 1990(Gazette Extraordinary 597/9 of 15th February 1990), when a personis arrested or detained under the provisions of Regulation 18 and isproduced before a Magistrate, such person cannot be released onbail except with the prior written consent of the Attorney-General.Further, although in terms of Regulation 19(2) a person should not bedetained for a period exceeding 90 days, yet if the detainee isproduced before a Court, all that the Court is empowered to do in
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terms of Regulation 19(3) is to order that such a person be detainedin the custody of the Fiscal in a Prison established under the PrisonsOrdinance. However, as the facts in Wijewardena v. Zain(’3’ showed,the opportunity provided for the judge to express his opinion on theinappropriateness of the detention may yield positive results in favourof the liberty of the person detained.
THE IMPORTANCE OF ASCERTAINING THE PRESCRIBED LAWl should like to draw attention to the fact that the “procedureestablished by law" may change from time to time and to emphasizethe need for respondents to clearly indicate the procedure applicablein the case before the Court and produce, where required, copies ofthe Regulation or Gazette setting out the procedure relied upon, forcopies of certain Regulations are not sent at all or in time to even theSupreme Court, although it is required to adjudicate upon mattersrelating to the laws set out in such documents. Errors might resultfrom the applicability of wrong provisions.
In Karunasekera v. Jayewardene and Othersthe petitioner wasarrested in terms of Regulation 18 of the Emergency Regulations on13th May 1990. He was produced before a Magistrate on 25th June
and released on bail and later discharged on 2nd December
because there were no grounds for arrest or detention. It washeld, that Article 13{2) of the Constitution was violated. The attentionof the Court was not drawn to the fact that on the date of arrest theproviso to Regulation 19 had been repealed and amended on 18thDecember 1989 (Gazette Extraordinary 589/5) so that there was noobligation imposed by the Emergency Regulations on therespondents to produce the petitioner before a Magistrate exceptwhen the Magistrate visited the place where the petitioner wasdetained.
Similarly, in Weerakoon v. Weeraratne U5) the petitioner wasarrested on 25th January 1992, after the amendment of Regulation19. However, it was held that the “impugned detention" was “vitiated"by the failure to produce the petitioner before a Magistrate not laterthan thirty days from his arrest "which is the procedure prescribed bylaw for his detention under Regulation 19(2)."
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LIMITATIONS ON TIME – INTRODUCTIONThe salutary right to be brought before a judge would be of little orno practical value unless the person is so produced within areasonable time. The time within which the person should have beenproduced must be ascertained by reference to the provisions of thelaw applicable to the case at the relevant time.
The position in India, however, is different. Article 22(2) of theIndian Constitution provides that “Every person who is arrested anddetained in custody, shall be produced before the nearest magistratewithin a period of twenty-four hours of such arrest excluding the timenecessary for the journey from the place of arrest to the court of themagistrate and no such person shall be detained in custody withoutthe authority of a magistrate.” Article 22(3) provides that Clause (2)does not apply (a) to any person who for the time being is an alienenemy; or (b) to any person who is arrested or detained under anylaw providing for preventive detention.
LIMITATIONS ON TIME UNDER ORDINARY LAWOrdinarily, a police officer making an arrest without a warrant isrequired by Section 36 of the Code of Criminal Procedure Act No. 15of 1979 to send the person arrested before a Magistrate havingjurisdiction in the case "without unnecessary delay,” Section 37 of theCode of Criminal Procedure goes on to provide that a personarrested without a warrant should not be detained in custody orotherwise confined “for a longer period than under all thecircumstances of the case is reasonable, and such period shall notexceed twenty-four hours exclusive of the time necessary for thejourney from the place of arrest to the Magistrate.”
Where an investigation cannot be completed within the twenty-fourhours fixed by Section 37 of the Code of Criminal Procedure andthere are grounds for believing that further investigation is necessary,the officer in charge of the police station is required by section 115 ofthe Code of Criminal Procedure to “forthwith’ forward the suspect tothe Magistrate and take the prescribed steps to enable theMagistrate to decide whether it is expedient to detain the suspect incustody pending further investigation.
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LIMITATIONS ON TIME UNDER EMERGENCY REGULATIONS -REGULATIONS 18 AND 19Where a person is arrested under the powers conferred on aPolice Officer by Regulation 18 of the Emergency (MiscellaneousProvisions and Powers) Regulations No. 1 of 1989 made under thePublic Security Ordinance (Cap 40) (vide Gazette Extraordinary of20th June 1989), the provisions ordinarily applicable cease to berelevant, for Regulation 19(1) of the Emergency Regulations statesthat the provisions of Sections 36, 37 and 38 of the Code of CriminalProcedure Act No. 15 of 1979 shall not apply to persons arrestedunder Regulation 18. The person arrested therefore, need not beproduced before a Magistrate in terms of Sections 36 and 37 of theCriminal Procedure Code and the police need not obtain orders froma Magistrate with regard to the duration or place of detention -Joseph Silva and Others v. Balasuriya and Others[m.
Between June 20th 1989 and December 2nd 1989, a personarrested and detained under the provisions of Regulation 18 was, interms of the proviso to Regulation 19(1), required to 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.”
The proviso to Regulation 19(1) of the Emergency (MiscellaneousProvisions and Powers) Regulations, requiring production before aMagistrate within a reasonable time and not exceeding thirty days,was repealed by a Regulation dated December 2nd 1989 publishedin Gazette 589/5 of 18.12.1989. In terms of the new provision theMagistrate was required to visit the place of detention at least once inevery month and the person in charge of the place of detention wasrequired to produce persons detained, otherwise than by order of theMagistrate, before the visiting Magistrate. The duty of production wastherefore primarily linked to the Magistrate's visit. Making timely visitswas the duty of the Magistrate in the discharge of a judicial functionand not an executive obligation. The time for production became ineffect, if and when the Magistrate visited the place of detention.
The petitioners were supposed to have been arrested inpursuance of and under Regulation 18. In terms of the provisions of
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Regulation 19 prevailing at the time, namely 27th February – 17thMarch 1992, the procedure prescribed by the EmergencyRegulations required the petitioners to be produced before aMagistrate upon the visit of the Magistrate to the place of detention. Itwas not the petitioners’ case that they were not produced before aMagistrate who visited the places of their detention. In thecircumstance, assuming that the petitioners were detained inpursuance of Regulation 18,1 hold that the provisions of Article 13(2)were not violated by any failure to comply with the procedureestablished by Regulation 19.
LIMITATIONS ON TIME – EMERGENCY REGULATIONS -REGULATIONS 17The petitioners were also, as we have seen albeit mistakenly,detained under certain provisions contained in Regulation 17. Wherea person is detained in pursuance of an order made underRegulation 17 of the Emergency (Miscellaneous Provisions andPowers) Regulations No. 1 of 1989 or. Regulation 17 of theEmergency (Miscellaneous Provisions and Powers) Regulations of1993, it has been said that by “implication” the person detained neednot be produced before a judge, (see per Kulatunga, J. inWickremabandu’s case 1261 and in Weerakoon v. Mahendra Seealso Fernando v. Kapilaratne m. Was failure to provide a procedurerelating to the production of persons detained under Regulation 17 asweeping away of the Constitutional right guaranteed by Article 13(2)by implication? Constitutional guarantees cannot be removed ormodified except in accordance with the provisions of the Constitution.That, I believe is a proposition that commends itself to generalacceptance. I believe it is still a well-established and universallyconceded principle. One might even say that it is axiomatic. In thecase of detentions under Regulation 19 the relevant provisions of theCode of Criminal Procedure are expressly suspended. The exerciseand operation of Article 13(2) may, in terms of Article 15 (7) of theConstitution be subject to restrictions prescribed by law, but wherethe limitations are not plainly expressed. I would be reluctant to implytheir existence. If there is no procedure prescribed by the EmergencyRegulations, the right guaranteed by Article 13(2) should be securedand advanced by declaring that the ordinary provisions of law are
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applicable in such a case. And indeed, if such provisions existed,they should be "strictly scrutinized and construed”, since they makeinroads into the liberty of the citizen. (Cf. per Samarakoon, CJ. inKumaranatunga v. Samarasinghe)1,B)
It is interesting to compare Article 22 of the Indian Constitutionwhich deals with so important a matter understandably in theConstitution itself. Although Article 22(2) requires a person arrestedto be produced before the nearest magistrate within the prescribedtime, Clause 3 (b) of Article 22 expressly provides that the right to beproduced does not apply to any person who is arrested or detainedunder any law providing for preventive detention.
VIOLATION OF ARTICLE 13(2) BY FAILURE TO PRODUCE THEARRESTED PERSON WITHIN THE PRESCRIBED TIMEWhere a person is not produced before a judge in the timeprescribed, the provisions of Article 13(2) are violated. (E.g. seePremalal de Silva v. Rodrigo<e6); Samanthilaka v. Ernest Perera andOthers (87>; Sirisena v. Ernest Perera m. See also Abeywickrema v.Dayaratne m;Pushpakumari and Jayawickrema v. Mahendra andOthers™-.Weerakoon v. Mahendra and Others M,>; Karunasekera v.Jayewardenem Weerakoon v. Weeraratne l,s>; Cf. Somasiri andSomasiri v. Jayasena and Others ™.
RELEASE OR PRODUCTION WITHIN PRESCRIBED TIMEGenerally, if a person is released before the time statutorilyprescribed for production, or if the person is produced before ajudge'within such prescribed time, Article 13(2) will not be violated.(See Dayananda v. Weerasinghe and Others*'Joseph Silva v.Balasuriya and Others(22); see also Garusinghe v. Kadurugamuwa |9l>;Uyanage v. Chandranandam: Mallawarachchi v. Seneviratne(“>; Cf.also Saranal v. Wijesooriya and Others '“'which held that where thereis no evidence of detention without production within the prescribedtime, the petitioner's application will be rejected).
DETENTION AFTER PRODUCTION – JUDICIAL ACT – NOPROTECTION FOR LONG DETENTION PENDING TRIALOnce a person held in custody or detained or otherwise deprivedof personal liberty is brought before a judge of the nearest competent
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Court according to procedure established by law, he shall not befurther held in custody, detained or deprived of personal libertyexcept upon and in terms of the order of the judge made inaccordance with procedure established by (aw. (Article 13(2) of theConstitution). The holding of a person in custody upon the Orders ofthe judge constitutes judicial as distinguished from administrative orexecutive action. (See Dharmatillake v Abeynaike(r7'; Kumarasinghev. A.-G.m Siriwardena v. Liyanage,7,); Dayananda v. WeerasingheLeo Fernando v. Attorney-General<95); Jayasinghe v. Mahendran andOthers Velmurugu v. A.G.m Saman v. Leeladasa w. But see perDe Alwis J. in Joseph Perera (supra) – where it was thought thatbecause "judicial discretion” could not be exercised in acting underthe Emergency Regulations, the continued detention after the judicialremand order remained executive action. See also Sriyawathie v.Pasupathi and Jansz ^ where detention on account of an invalidjudicial order was held to be violative of the petitioner's fundamentalrights. There is it seems no constitutional protection of the personalliberty of the subject where he is held in custody or detentionpending trial for a longer period than under all the circumstances ofthe case is reasonable. Cf. Article 13(4). All that the Court has doneis to urge the authorities to expedite the trial. Cf. Kamegam v. Janszand Othersim where long incarceration was unsuccessfully claimedby the petitioner to be violative of Article 11). On the other hand, interms of Articles 5.3 and 6 of the European Convention for theProtection of Human Rights and Fundamental Freedoms, a person isentitled to a fair trial within a reasonable period. (E.g. see thedecisions of the European Court of Human Rights in the cases ofLawless"0"-, Wemhoff "“’i Neumeister l,M>; Strogmuller(IM1;Matznetter,,os>; Ringeisen (,06>; Eckle |,W); Foti and others ,108);Corighanoim; Vallon; CarrtH0'; Capuarto, Bagetta and Milasi (,,*). Cf.also Lechner and Hess,,13).
THE STATUTORILY PRESCRIBED PERIOD SETS THE OUTERLIMITThe prescribed maximum time within which a law may require aperson to be produced before a judge merely indicates the outer limitwhich cannot be passed without violating Article 13(2) of theConstitution. In the circumstances of a case, detention for a shorterperiod of time may violate Article 13(2).
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With regard to persons arrested, under the Code of CriminalProcedure, it is clear from the terms of Sections 36 and 37 that thetwenty-four hour period indicates the maximum time and not amandatory period of detention, although certain dicta might suggestthat so long as a person is released or produced within twenty-fourhours, Section 37 is not violated whether or not it was under all thecircumstances of the case a longer than reasonable period. Forinstance in Lundstron v. Cyril Herath and Others (43), where thepetitioner was ordered to drive to the Police Station and she had toremain at the station in her vehicle until the keys of her car whichwere taken by the Police were returned, De Alwis, J. said: "Thepetitioner was thus in custody for a little over 12 hours and this perioddid not exceed 24 hours before which she was required to beproduced before a Magistrate, in accordance with the procedureestablished by law, namely Section 37 of the Code of CriminalProcedure Act," "Consequently" it was held that Article 13(2) had notbeen violated. (Cf, also Pathmasiri v. Illangasiri i",) perGoonewardene J, in Wijeratne v. Vijitha Perera )1115>,
Section 36 of the Code of Criminal Procedure provides that anofficer making an arrest "shall without unnecessary delay … take orsend the person arrested before a Magistrate having jurisdiction inthe case." And Section 37 of the Code provides that an officer "shallnot detain in custody or confine a person arrested without a warrantfor a longer period than under all the circumstances of the caseis reasonable, and such period shall not exceed twenty-four hoursexclusive of the time necessary for the journey from the place ofarrest to the Magistrate."
Whether a detention within the prescribed maximum period isreasonable must be determined by the Court having regard to thecircumstances of each case, including, but not limited to, thestatutorily prescribed outer limit.
In Kumaranatunge v. Samarasinghe (m a detention of ten hourswas considered reasonable in a case to which section 37 of the Codeof Criminal Procedure was applicable.
However, in Faiz v. A.G.m, where the petitioner was arrested atabout 6.30 p.m. on 26th April 1991 and produced before a
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Magistrate on the following eveing within the prescribed twenty-fourhour maximum period, and remanded till the 29th of April andreleased on bail, Fernando and Perera JJ. held that Article 132(2)was violated. Fernando J. explained that in the circumstances of thecase the "detention was unnecessarily prolonged." In Kumarasena v.Shriyantha and Others (6), the petitioner, who was arrested withoutreasonable grounds, was released in about six hours after beingsubjected to degrading treatment in violation of Article 11 of theConstitution, I held that Article 13(2) was violated although the personwas released within the twenty-four hour period. I said: "The salutarynature of the provision that persons arrested without warrant must beproduced before a judge without unnecessary delay has beenstressed over and over again by this Court. (E g. see Edirisuriya v.Navaratnam (JI) . The provision is there “to ensure the safety andprotection of arrested persons." The desirability of the provision wasstrongly underlined by the facts of the case before us where muchharm was caused even during the short period of detention."
At a time when it was required under Regulation 19(2) that personsshould be produced no later than 30 days after arrest, it was heldthat Article 13(2) was not violated in a case where the person wasreleased from custody in about 24 – 27 hours after “expeditiousinquiry" had revealed that further detention for investigation wasunnecessary. (Mallawarchchi v. Seneviratne)<40>.
Regulation 19(2) provides that “Any person detained in pursuanceof the provisions of Regulation 18 may be detained for a period notexceeding ninety days reckoned from the date of his “arrest underthat Regulation" and shall at the end of that period be released by theOfficer-in-Charge of that place unless such person has beenproduced by such officer before the expiry of that period before aCourt of competent jurisdiction.
The period of ninety days prescribed by Regulation 19 and theright to detain for an unspecified period in terms of Regulation 17 arepermissive, and not mandatory – it is certainly not, as suggested inNamasivayam v. Gunawardene11,81 a penalty incurred by [a] petitionerunder the Emergency Regulations" – and many hundreds of persons,including the sixteen petitioners in this case, have been properlyreleased before the period of ninety days and, in the case of persons
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detained or purported to be detained under Regulation 17, (includingthe petitioners in this case who were detained inter alia, in terms ofthe objects and purposes of Regulation 17) even before an appeal tothe Advisory Committee had been lodged. This is in accordance withthe scheme of the law and the foundational assumption underlyingRegulations 17, 18 and 19 that a person arrested and detainedshould not be confined for a longer period than under all thecircumstances of the case is "reasonable” (Cf. Kumaranatunge’scase(,9) (supra): Gurusinghe v. Kadurugamuwa (9"; Mallawarachchi'scase (supra).
As soon as investigations have revealed that, although there werereasonable grounds for suspicion at the time of the arrest, furthersearch (including, as explained above, investigation) is unnecessary,steps should be taken in terms of Regulation 19 to have the personreleased. It would be unreasonable not to do so. (See Nanayakkara v.Henry Perera and Others<C) followed in Nallanayagam v. Gunatillekeand Others(9I>; Joseph Perera v: AG.(3SI; per De Alwis J. Wijewardenev. Zain)(,3).
Likewise, although at the time of making an order under Regulation17, the Secretary had reasonable grounds for doing so, yet if at anytime thereafter the Secretary to the Ministry of Defence can no longeras a reasonable man be satisfied and so hold the opinion that it isnecessary to continue to detain the person to prevent him from actingin a manner such person was once reasonably supposed to havebeen likely to act, the Detention Order issued under Regulation 17should be revoked and the person detained set free. (SeeWeerakoon v. Mahendra)<M>.
Persons should not be held in custody for an “excessive" period,that is, a longer than “reasonable period” in the sense that havingregard to the purposes of arrest or detention, the detention can nolonger be supported. (Cf. Joseph Silva and Others v. Batasuriya andOthers OT: Jayatissa v. Dissanayake <7*,.
If a person who, for the foregoing reasons ought to have beenreleased, is in custody at the time of the hearing with regard to anapplication made to the Supreme Court to hear and determine anyquestion relating to the infringement by executive or administrative
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action of the fundamental rights declared and recognized by Article13 of the Constitution, the Court may order the release of thepetitioner as it did in Padmakanthi v. O.l.C. Matale (,,7) and inDissanayake v. Guneratne & Others m.
If a person is detained in terms of Regulation 17 and or 19beyond a time when in all the circumstances it is unreasonable to doso, because the grounds for detention in terms of those laws nolonger exist, such detention can no longer be said to be under or inpursuance of such Regulation or Regulations. The person detainedcan no longer be described as a person arrested according to theprocedures established by those laws.
Detention without reasonable ground, or beyond a time when suchdetention ceases to be reasonable has been sometimes referred toas “excessive”, “unjustified", "unlawful” or "illegal" detention. (Cf,Wijewardene v. Zain m>; Wickremabandu v. Herath and Others<a!);Jayaratne v. Tennekoon and Others m) and Fernando v. Kapilaratneand Others Padmakanthi Dimbulagamuwa v. OIC Army CampMatale and Othersl,,T). Wanasundera J. in Joseph Perera,3S) said thatsuch detention “transgresses the law.” No doubt this may be so forvarious reasons and give rise to various reliefs and remedies. Forinstance, there may be a cause of action based on false arrest. Butthe question for determination in matters of the sort before us is this:What provision or provisions of the Constitution are violated in a waythat the transgression is justiciable in terms of Article 126 of theConstitution?
THE CONSEQUENCES OF UNREASONABLE DETENTION -VIOLATION OF ARTICLE 13(1)Firstly, as we have seen in this case, there may be a violation ofArticle 13(1).
Where a person is taken into custody supposedly in terms ofRegulation 17 or 18 but in fact otherwise than in accordance withthose provisions, or where subsequently the circumstances makecontinued detention unwarrantable in terms of Regulation 17 and 10,the person detained must be released. Otherwise, being in thecustody of the law, he would be a person who is not "arrested" in
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accordance with procedure established by law and Article 13(1)would be transgressed.
Where a person is in the custody of the law he is a person“arrested", in the words of H. A. G. de Silva in Piyasiri v. Fernando,3)“for whatever the period may be". In Kumaranatunga v.Samarasinghe m, Samarakoon CJ. said: “Article 13(1)… deals onlywith arrest and not with subsequent detention … the arrest andincarceration however short on document A [the Detention Order]was in contravention of the petitioner’s fundamental right guaranteedby Article 13 of the Constitution.’ Samarakoon C.J. was referring tothe right of the petitioner under Article 13(1) and not his rightenshrined in Article 13(2) to be produced before a judge while indetention. It seems to be sometimes assumed that Article 13(1) isconfined to the act of taking into custody whereas Article 13(2) isconcerned with subsequent detention. H. A. G. de Silva, J. inWickremabandu for instance, stated that Article 13(1) dealt witharrest and that “paragraph (2) refers to the consequences of sucharrest: the person arrested may be ’held in custody’, ’detained’ or'otherwise deprived of personal liberty' – which would cover, forinstance, house arrest, or a restriction order limiting freedom ofmovement to a particular area or during specified periods.’ Article13(2) deals with an aspect of the rights of persons deprived of theirliberty, namely the right to be produced before a judge and the rightto be detained in terms of the orders of the judge thereafter made byhim in accordance with procedure established by law.
Article 13(1) could be violated not only by the act of first deprivinga person of his liberty in violation of procedure established by law,but also by holding any person in the custody of the law during anyperiod, unless perhaps the detention is extremely brief andmomentary so as to be of a de minimus nature, (the duration may berelevant in computing amounts to be awarded by way of relief: butthat is another matter) when he is deprived of his liberty contrary toprocedure established by law. He is under arrest. He is an arrestedperson. (Cf. per H. A. G. de Silva, J. in Wickremabandu's Case(261.See also Rajakpaksa v. Kudahetti "’’’on the meaning of the term“arrest").
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In a vulgar sense “arrest" is simply taking a person into custody forthe suspected commission of an offence. However, in law, asFernando, J. observed in Sirisena and Others v. Ernest Perera andOthers <88), “Arrest” must be given a wide meaning and includesdeprivation of liberty for purposes other than the suspicion of thecommission of an offence, as in that case where persons weredetained for obtaining evidence. This is in accordance with the viewexpressed by H. A, G. de Silva, J. (Fernando J. agreeing) inWickremabandu(2S1 that “taking Article 13 as a whole, “arrest" inparagraph (1) includes an arrest in connection with an alleged orsuspected commission of an offence, as well as any other deprivationof personal liberty."
How else could a detention under Regulation 17, which isconcerned merely with the prevention of violations of the law, beever violative of Article 13(1) except on the basis that deprivation ofpersonal liberty is what is meant by the term “arrested" in Article
13(1)?
Moreover, certain arrest can take place only if the person isalready in the custody of the law. For instance, in Karunaratne v.Rupasinghe{"‘ it was held that a rehabilitation order could not beenforced in respect of a person who was not in custody. Fernando J.observed: “I hold therefore that this regulation does not authorize thearrest or detention of a person not already in detention … Theresulting position is that the arrest and detention was illegal."
The essential constitutional guarantee of the first part of Article13(1) is that the State may not imprison or otherwise physicallyrestrain a person against his will except according to fair procedures,namely, procedures established by law. Admittedly, the positionmight have been clearer if, as in Article 21 of the Indian Constitution,it had been simply stated that “No person shall be deprived of hispersonal liberty except according to procedure established by law."However, in the formulation of Article 13(1), I cannot find any reasonto suppose that a narrower meaning was intended by'the substitutionof the word “arrested" for the phrase “deprived of his personalliberty."
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It had been submitted by Counsel in Wickremabandu!!S) that anydetention other than detention pending investigation or trialconstituted a "punishment" and was therefore violative of Article 13(4)of the Constitution. H. A. G, de Silva (Fernando J. agreeing), however,said: ‘If this contention is correct, it would follow that deprivation ofliberty in relation to persons of unsound mind or suffering fromspecified diseases, (under the Contagious Diseases Ordinance, Cap.223, the Mental Diseases Ordinance, Cap 227 and the LepersOrdinance Cap. 228), or under Chapter XLVII of the Civil ProcedureCode would also be punishment – since such deprivation is not‘pending investigation or trial." We are of the view that references topublic health and public order in Article 15(7) were necessary toensure that legislation could authorise deprivation of liberty insituations of that kind.”
There is abundant persuasive authority supporting the view that aperson cannot be committed for treatment or detained for treatmentsubsequently unless it is in accordance with a procedure establishedby law to determine that a person is dangerous to himself or others.(E.g. see O'Connor v. Donaldson 1’2D): State ex rel. Doe v. MadonnaJackson v. Indiana(ia); Humphrey v. Cady{m Addington v. Texas"™.See also the decisions of the European Court of Human Rights in thecases of Winterwerp(,26); X v. U.K."X} Luberti<’27' and Ashingdane
THE CONSEQUENCES OF UNREASONABLE DETENTION -VIOLATION OF ARTICLE 13(4)While the arrest, holding in custody, detention or deprivation ofpersonal liberty of a person pending investigation or trial does notconstitute a punishment by imprisonment. (Article 13(4); and whileholding a person in preventive detention has been held not to bepunitive imprisonment violative of the Constitution, (Kumaratunge v.Samarasinghe <,(l1; Yapa v. Bandaranayake 1441; Wickremabandu v.Herath and Others1351 yet deprivation of personal liberty would amountto punitive imprisonment violative of Article 13(4) of the Constitutionwhere the person was never, or cannot any longer, be reasonablysaid to be held for purposes of investigation, trial or preventivedetention, as the case may be. (See Nanayakkara v. Henry Perera mYapa v. Bandaranayake <i6>: Nallanayagam v. Gunatilleke l,l);Sasanasiritissa Thero and Others v. De Silva and Others'™;
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Wijewardene v Zain ,,3,) Joseph Silva v. BalasuriyalK); Chandradasaand Another v. Lai Fernando & Others (iS); Guneratne et el1W);Premalal de Silva v. Rodrigo)m.
Although the duration per $e of the imprisonment wouldsometimes seem to be regarded as the criterion for deciding whetherArticle 13(4) has been violated, it is the fact of detention beyond atime when it is not warranted that is relevant. The objective of Article13(4) seems to be that no person shall be subject to death ordeprivation of personal liberty except by an order of a competentcourt. Subjecting a person to pain, or suffering or loss caused by thedeprivation of personal liberty without judicial authority is“punishment", when there is no constitutional or other legislativeauthority for doing so. (Compare Articles 13(2) and 13(4) of ourConstitution and Article 22 of the Indian Constitution, See alsoEmergency Regulation 17). Punitive imprisonment may be of anyduration. Thus in Premalal de Silva's case the petitioner who wassupposed to have been arrested on 19th May 1989 in terms of theCode of Criminal Procedure – although there were no reasonablegrounds – was produced before a Magistrate on 23rd May andenlarged on bail on 28th June 1989. Article 13(4) was held to beviolated in addition to the violations of Article 13(1) and 13(2).Duration, of course, would be relevant in assessing the amount to bepaid to a petitioner who has been detained for a longer period thanunder all the circumstances of the case is reasonable.
SEVERAL VIOLATIONS BASED ON THE SAME FACTS IS APOSSIBILITY
As a consequence of the deprivation of personal liberty otherwisethan according to procedure established by law, rights other thanthose guaranteed by Article 13 of the Constitution too may in thecircumstances of a case be held to be violated. For instance,deprivation of personal liberty in violation of Article 13(1) mayconsequentially or incidentally violate Article 14(1) (a) – freedom ofspeech, as it is in the matters before us (see also Joseph Perera v.A.G. (35) and/or Article 14(1) (b) – freedom of peaceful assembly:and/or Article 14(1) (c) – freedom of association as in the mattersbefore us – and/or Article 14(1) (a) – the freedom to engage himself
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in his lawful occupation, profession, trade, business or enterprise:and/or Article 14(1) (h) the freedom of movement (Chandradasa v.Lai Fernando)™. However, those are not matters that immediatelyconcern us, but I mention them, firstly, to acknowledge the possibilitythat the evidence adduced in support of the violation of one provisionof the Constitution may also support the violation of other provisionsof the Constitution. Persons depriving others of their personal libertyshould therefore realize that they may unwittingly lay themselvesopen to more violations of the Constitution than one. Secondly, Ishould like to emphasize that, in the circumstances of a case, theviolation of one provision of the Constitution guaranteeing afundamental right may not be necessarily violative of some otherright. The alleged violation of each right must be consideredindependently in the light of the circumstances of each case. Thus,although in Joseph Perera <3S,the arrest resulted in a violation ofArticle 14(1) (a), it did not do so in Chandradasa's Case.™
ARTICLE 13(1) VIS-A-VIS 13(2)However, is this true of violations of Article 13(1) vis-a-vis 13(2)? Inview of the fact that I have found that Article 13(1) was violated, doesit follow that Article 13(2) is also violated as a necessaryconsequence? There are dicta that might lead to such a conclusion.
It has been said, for instance, that where the arrest is "invalid”“unlawful" or "illegal" the subsequent detention is also “invalid"“unlawful” and “illegal" and the provisions of Article 13(2) aretherefore violated. (E.g. see Chandradasa and Kularatne v. LaiFernando and Others(2S); Lalanie and Nirmala v, De Silva l#);Sasanasiritissa Thero and Others v. De Silva and Others <u);Wijewardene v. Zain <n>; Dissanayake v. Superintendent, MaharaPrison™: Vidyamuni v. Jayatilleke,,2); Wijesiriv. Rohana Fernando(IQ|;Nihallage Dona Ranjanie v. Liyanapathirana
The genesis of the problem is not identifiable with certainty. Was itChief Justice “Samarakoon’s statement in Kumaranatunga v.Samarasinghe m that Article 13(1) of the Constitution “deals only
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with arrest and not with subsequent detention"? It was probably not,for it seems that His Lordship was concerned with the right of thepetitioner to be free from arrest except according to procedureestablished by law (Article 13(1)) rather than with his constitutionalrights as a person held in custody, detained or otherwise deprived ofpersonal liberty.
There were no problems until the Court (Athukorale J., G. P. S. deSilva and Bandaranayake, JJ. agreeing) in Chandradasa andKularatne v. Lai Fernando and Others ,1S) held that “The arrests of thepetitioners by the 1st respondent was not authorized in terms ofRegulation 18(1) and was thus unlawful. The detention of thepetitioners by the respondent was therefore illegal", and it was heldthat the violations of Articles 13(1), 13(2) and 13(4) had been“established" and that by reason of the “illegal detention", Article14(1) (c), 14(1) (g) and 14(1) (h) had been "consequentially" violated.
The facts certainly supported the finding that the severaltransgressions of various Articles of the Constitution had taken place.The suggestion that, since the arrests were not in accordance withthe procedure prescribed by Regulation 18(1), "therefore", by reasonof that fact, ipso facto, other provisions of the Constitution wereviolated, was, with great respect, somewhat misleading, for although,as in Chandradasa (K,the same facts may have supported violationsof several provisions of the Constitution, the violation of one provisionof the Constitution does not inevitably and necessarily result in theviolation of another provision.
Then in 1990 H. A. G. de Silva, J. (Fernando J. agreeing) inWickremabandu (supra) suggested that Article 13(1) was concernedwith the arrest of persons while Article 13(2) was concerned with “theconsequences" of arrest.
None of these cases attempted to evolve a theory that if Article13(1) is violated then Article 13(2) is also violated.
We then have the view expressed by Kulatunga J. that "arrest anddetention are inextricably linked" (see Wijewardene v. Zainm. Basedon Sharvananda J’s observation in Mariadasa Raj v. AG.,7,> that if a
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person arrested is not informed of the reason for his arrest,“hisdetention after the arrest is illegal”, a theory was evolved that if anarrest is “illegal” or "unlawful”, {Article 13(1), the subsequentdetention is therefore “illegal" or “unlawful" and consequently Article13(2) is violated. (E.g. see Nihallage Dona Ranjani v.Liyanapathirana )!53).
Conversely, it has sometimes been suggested that if the arrest is“justified” and not violative of Article 13(' 1) it automatically followsthat the detention is justified and that Article 13(2) is therefore notviolated. (Cf. Dalaguan v. Perera 1291 and Madera v. Weerasekeraim,where there were reasonable grounds for arrest, it was held in eachcase that the “arrest and detention were legal.”).
This view has lead to difficulties resulting in the need to explain theviolation of Article 13(2) by stating that if detention is “excessive" inthe sense of being long in duration, rather than in relation to aprescribed period for production before a judge, the provisions ofArticle 13(2) of the Constitution have been violated.
In Jayaratne v. Tennekoon <“> it was held that the arrest was“justified and not violative of Article 13(1) of the Constitution."Kulatunga J. there states: “It follows that his detention after his arrestis also justified and not violative of Article 13(2). The question then iswhether his continued detention up to date is justified …" HisLordship states: “…learned Counsel for the petitioner … hasstrenuously submitted that the continued detention of the detenu forso long a period is without due consideration of the relevant facts. Hehas not been charged with any offence: in these circumstances thedetention is mala fide and unwarranted … I am in agreement with thissubmission and hold that in all the circumstances the impugneddetention is excessive and hence violative of the detenu’s rightsunder Article 13(2) of the Constitution.” Kulatunga, J. later adds asfollows: "As regards the infringement of Article 13(2) I have alreadyheld that the arrest of the detenu is justified and not violative of Article13(1) and that the detention after such arrest is also justified and notviolative of Article 13(2); the infringement of Article 13(2) occurredonly by reason of excessive detention."
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In Padmakanthi v. O./.C. Matale <,1,,the petitioner had beenarrested on 10th August 1989. Although investigations werecompleted on 29th March 1990 the petitioner was stilt in custody atthe date of the hearing of the application in the Supreme Court. It washeld that detention after 29th March was "unjustified" and violative ofArticle 13(2).
In Fernando v. Kapilaratne m there were reasonable grounds forarrest and the petitioner had been informed of the reasons for arrest.Continued detention, however, was not warranted, for the petitionerwas detained merely because he was not behaving himself properlywhile in custody. It was held, that, since the petitioner was held underRegulation 17, Article 13(2) was not violated by non-productionbefore a Magistrate. However, Article 13(2) was violated on accountof the “excessiveness of the detention," which “violated" thedetention order from the date of the application to the Court.
In Godagama v. Ranatunge(W) Article 13(2) was declared violatedbecause the petitioners had been detained for over two years.
There is no discussion of, or reference to, Article 13(2) at page 403by Sharvananda J. Mariadas ‘"’was a case concerning Articles 11and 13(1). In any event, I have no difficulty at all in accepting ChiefJustice Sharvananda’s proposition that if an arrest is illegal thesubsequent detention is illegal. However, the fact that the arrest andsubsequent detention are illegal does not carry with it the corollarythat Article 13(2) is violated. Mariadas did not as a precedentembalm a principle that a detention following an illegal arrest is alsoillegal and that therefore Article 13(2) is violated. There is nothingat all in Article 13(2) that expressly or by implication warrants such aconclusion. See Article 13(2). Article 13(2) of the Constitution doesnot say that "No person shall be held in custody or detained orotherwise deprived of personal liberty except according to procedureestablished by law. Nor does it say that “No person shall be held incustody or detained or otherwise deprived of his personal libertyunlawfully or illegally or for a longer period than under all thecircumstances of the case is reasonable." What Article 13(2) doessay is that ‘Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought before the judge of the
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nearest competent court according to procedure established by law,and shall not be further held in custody, detained or deprived ofpersonal liberty except upon and in terms of the order of such judgemade in accordance with procedure established by law."
Goonewardene, J. observed in Faiz v. A.G.m that it is not only“unnecessary" to “characterize any action that does not conform tothe provisions of Article 13(1) as an “illegal arrest", it is “perhapshazardous to attempt to characterize a particular action as an "illegaldetention", an expression which carries certain overtones which maytend to colour and confuse and carry one away from an objectiveappraisal of a situation … Upon a simple reading of its languageuncomplicated by reference to the concept of “illegal detention",what do the provisions of Article 13(2) mandate or require to bedone? It demands that any person held in custody, detained orotherwise deprived of personal liberty shall be brought before thejudge of the nearest competent court according to procedureestablished by law … when the period of time is exceeded beforesuch person is brought before a judge, there would be a violation ofArticle 13(2) whereas if such period has not been exceeded, therewould be no such violation and whether or not there has been aninfringement of Article 13(1) is irrelevant.. ."
In Wijeratne v. Vijitha Perera(l15) Goonewardene J. referred to hisjudgment in Faiz<,6), reiterated the views His Lordship had earlierexpressed, and said that "a violation of Article 13(2) "can occur onlywhen there has been a failure to transfer an arrested person fromnon-judicial custody to judicial custody within the time prescribed bylaw." The phrase “judicial custody” was no doubt meant to underlinethe salutary purposes of Clause (2) of Article 13 rather than to dealwith the question of custodianship in the sense of in whose keepingan arrested person is to be – e.g. the police or the fiscal.
According to Goonewardene J. “an illegal arrest violative of Article13(1) of the Constitution is not necessarily accompanied by theconsequence that there is a violation of Article 13(2) as well."
Fernando J. in Garusinghe v. Kadurugamuwa observed that"merely describing an arrest or detention as being “illegal" does not
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amount to an allegation of an infringement of Article 13(1) or 13(2)".And as Fernando J. pointed out in Chandrasekeram v. Wijetungel5l),it may be that Article 13(1) is violated but “It does not necessarilyfollow that their subsequent detention was unlawful."
Moreover, the terms “unlawful" and “illegal" and “excessive" do notmean the same thing and are not interchangeable. For instance inWickremabandu v. Herath <2*’, H. A. G. de Silva (Fernando J.agreeing) found that the detention was “unlawful: it is not merelyexcessive detention but illegal detention."
In most of the cases, notwithstanding the dicta explaining themanner in which Article 13(2) was violated, namely by reference to"invalidity" “illegality" and “unlawfulness”, and "excessiveness" in thesense of long duration, the facts certainly justify a declaration of theviolation of Article 13(2). Thus although in Faiz v. A.G.<,e) Perera J.would appear to have decided that Article 13(2) was violatedbecause the arrest was unjustified and therefore the "subsequentdetention … was unwarranted”. Fernando J. explains that in thecircumstances of the case detention even within the twenty-four hourperiod was “unnecessarily prolonged" and therefore violative ofArticle 13(2). In Wijesiri v. Rohan Fernando mand Nihallage DonaRanjani v. Liyanapathirana ,S3) the petitioners were not producedbefore a judge within the time prescribed by section 37 of the CivilProcedure Code; and in Weerakoon v. Weeraratnet,sl within the timeprescribed by Regulation 19(2).
However as Goonewardene, J. cautions, preoccupation withquestions of legality may “carry one away" from the matters to bedecided in considering whether Article 13(2) has been violated. InWijesiri v. Rohan Fernando (,0,the petitioner was arrested withoutreasonable grounds under the Criminal Procedure Code on 23rdApril 1990. A Detention Order under Regulation 19(1) was issued on28th April 1992. The petitioner was produced before a Magistrate on1st June 1990. Article 13(2) was held to be violated. WadugodapitiyaJ. said that the production “was not for the purposes enumerated inArticle 13(2) of the Constitution, but was for the purpose of havinghim discharged as there was no material against him. “The DetentionOrder had authorized detention for 90 days at Homagama
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Police/Boosa/Poonani/Pelawatta camp. However, on 6th May thepetitioner was transferred to and thereafter detained at MaharagamaPolice Station. Wadugodapitiya J. states: “Therefore, at most, it is onlythe short perod of detention from 29th April 1990 to 6th May 1990that can be said to have been covered by the Detention Order …therest of the period is from my view of the matter, illegal … I thereforehold that the 1st Respondent is guilty of violating the provisions ofArticle 13(2) of the Constitution."
In Munidasa v. Seneviratne1191, the petitioner was arrested on 13thJuly 1991 under Regulation 18 without reasonable grounds andwithout being given a reason for his arrest. The provisions of Article13(2) were declared violated because the detention was held to be'illegal" and “unlawful" even though the petitioner had beenproduced before a Magistrate on 14th July 1991 and remanded byhim and released on 19th July 1991.
In Wijeratne v. Perera ,115 the petitioner was released within themaximum twenty-four hour period. Goonewardene, J. held that Article13(2) had not been violated. However Fernando and WadugodapitiyaJJ held that Article 13(2) was violated.
Whether as in Faiz v. A.G. 11,1 there were circumstances inMunidasa 1491 and Wijeratne 111,1 that made the detention violative ofArticle 13(2) is not evident from the judgments.
The provisions of both Articles 13(1) and 13(2) may be violated ina given case (E.g. see Samanthilaka v. Ernest Perera Prematal deSilva v. Rodrigo 1M1; Somasiri and Somasiri v. Jayasena (7S);Karunaratne v. Rupasinghduei Weerakoon v. Mahendraon Sirisena v.Ernest Perera1881; Dissanayake v, Guneratne(2ei; Munidasa and Othersv. Seneviratne and Others (48); Chandrasekeram v. Wijetunge<s'1;Vidyamuni v. Jayetilleke 02].
However, the fact that Article 13(1) is violated does not necessarilymean that Article 13(2) is therefore violated. Nor does the violation ofArticle 13(2) necessarily mean that Article 13(1) is violated. Arrestand detention, as a matter of definition, apart from other relevantconsiderations, are “inextricably linked". However, Article 13(1) and
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13(2) have a related but separate existence. Article 13(1) isconcerned with the right of a person not to be arrested including theright to be kept arrested except according to procedure establishedby law and the right to be informed of the reasons for arrest, whereasArticle 13(2) is concerned with the right of a person arrested to beproduced before a judge according to procedure established by lawand the right not to be further deprived of personal liberty exceptupon and in terms of the order of such judge made in accordancewith procedure established by law. Article 13(1) and 13(2) are nodoubt linked: For instance, the procedure under which a person isarrested may determine the period within which a person has to beproduced before a judge. Moreover, as we shall see the lack ofgrounds for arrest or subsequent cessation of reasonable groundsmight well be important in deciding whether an obligation arises toproduce a person. Article 13(1) and (2) are linked but not inextricablyso.
The fact that Article 13(1) was not violated does not necessarilymean that Article 13(2) cannot be violated. For instance, a personmay be arrested on grounds of reasonable suspicion and givenreasons for his arrest. However, if he is not produced before a judgein accordance with a procedure prescribed by law – and that is thematter dealt with by Article 13(2) – there will be a violation of Article13(2), althugh Article 13(1) was not violated. In Nallanayagam v.Gunatitekema belated production" three days after the maximumthirty-day period specified was held to be violative of Article 13(2)although the arrest and continued detention even after the specifiedperiod for production was not violative of Article 13(1).
In Pathmasiri v. tllangasiri and Others <<,4 Article 13(1) was notviolated because there were reasonable grounds and the petitionerwas aware of the reasons for his arrest. However, the petitioner whohad been arrested on 19th September, 1982 was produced before aMagistrate only on 25th September 1987 in violation of section 37 ofthe Code of Criminal Procedure and therefore Article 13(2) was heldto be violated.
In De Silva v. Mettananda and Others m there was no question ofthe violation of Article 13(1). However the "arbitrary detention" of thepetitioner for interrogation was held to have violated Article 13(2).
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In Kalyanie Perera v. Siriwardene ,63 there were reasonablegrounds for arrest, and detention for investigation was, in thecircumstances of the case warranted. The reason for arrest had beengiven. There was no violation of Article 13(1). Kulatunga, J. however,said: ‘The learned Counsel for the petitioners complained withoutcontradiction by the State that the First Petitioner was neverproduced before a Magistrate. Accordingly, I hold her detentionunder Regulation 19(2) to be unlawful and violative of Article 13(2).
In some matters no complaint is made of the violation of Article13(1) or the matter is not pressed but nevertheless a violation ofArticle 13(2) has been found. (E.g. see De Silva v. Mettananda andOthers ®; Alwis v, Raymond and Others ((,3,); Sasanasiritissa Theroand Others v. De Silva and Others (l<>. If the violation of one Articlenecessarily followed the other, it is difficult to understand why,ordinarily, resort to one might be abandoned except on the basis thatthe ingredients to constitute the other violation are wanting. Theremay, of course, be additional reasons, as for instance inSasanasiritissa "4) where perhaps the violation of Article 13(1) was notpressed also because relief was not sought within the time for doingso specified in Article 126(2) of the Constitution.
Conversely, where Article 13(1) is violated it does not follow thatArticle 13(2) is violated. For instance, where a person is not informedof the reason for his arrest he would be entitled to complain of theviolation of his rights under Article 13(1). Yet he may be broughtwithin the time prescribed by the relevant procedure prescribed bylaw before a judge of competent jurisdiction, and in thecircumstances it would not be open to him to complain that Article13(2) has been violated merely because Article 13(1) has beenviolated.
m Dharmatilleke v. Abeynaike (7,) Article 13(1) was violatedbecause the substance of the Warrant was not notified in terms ofSection 53 of the Code of Criminal Procedure, but Article 13(2) wasnot violated. Even though the petitioner was not "physically"produced before the Magistrate. Seneviratne J. observed that "Onthe facts of this application” – meaning that petitioner had beentechnically produced – "the relevant Article is only Article 13(1)".Violations of both Article 13(1) and (2) had been alleged in that case.
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It may also be the case, as it was in Manseer v. Seneviratne,imthat, although there were no reasonable grounds for arrest and Article13(1) was contravened because the arrest could not have beenmade in accordance with procedure established by law, yet therewas no violation of Article 13(2) since the person had been producedbefore the Magistrate within the prescribed time. Therefore, it seems,the petitioner did not press the matter.
THE CONSEQUENCES OF UNREASONABLE DETENTION – THEVIOLATION OF ARTICLE 13(2) OF THE CONSTITUTION BYFAILING TO PRODUCE THE DETAINED PERSON INACCORDANCE WITH THE PROVISIONS OF THE CODE OFCRIMINAL PROCEDURE
If a person stands deprived of his personal liberty otherwise thanin accordance with procedure established by law, including theEmergency Regulations, and this may be at the moment of taking theperson into the custody of the law, or subsequently when the groundsfor detention cease to exist, the person having custody of the personmust set him free forthwith if he is to avoid violating Article 13(1).
If the person is not so released, then in terms of Article 13(2) stepsmust be taken to produce the person before the judge of the nearestcompetent court according to the procedure established by law.
Ordinarily, the procedure is that which is prescribed by the Codeof Criminal Procedure. However, if a person is arrested in pursuanceof Regulation 18 of the Emergency Regulations, in terms ofRegulation 19(1) the provisions of the Code of Criminal Procedure aresuspended and the procedure laid down in Regulation 19(2) is madethe relevant procedure. The provisions relating to detention andproduction set out in Regulation 19(2) are conditional upon theperson having been arrested “in pursuance of” Regulation 18. Thearrest must have been in accordance with the procedure set out inRegulation 18. Where a person is not arrested in that way, Regulation19(1), which suspends the operation of the provisions of the Code ofCriminal Procedure when a person is arrested in pursuance ofRegulation 18., thereby making way for the provisions of Regulation19(2) to take their place, ceases to be operative. The suspension of
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the operation of the provisions of sections 36, 37 and 38 of the Codeof Criminal Procedure is conditional upon the person being arrestedunder Regulation 18. Where a person is not arrested and keptarrested in pursuance of Regulation 18, Regulation 19 has noapplicability.
The procedure established by law for the purposes of Article 13(2)of the Constitution in such a case is the procedure prescribed bySection 37 of the Code of Criminal procedure. The provisions of theCode were not swept away by the Emergency Regulations. Theprovisions of the Emergency Regulations are supplementary, “inaddition to, and not in derogation" of the provisions of the “ordinarylaw” including, of course, the provisions of the Code of CriminalProcedure. (See Regulation 54 of the Emergency (MiscellaneousProvisions and Powers) Regulations No. 1 of 1989. See also perWanasundera, J. in Joseph Perera 05); and per De Alwis, J. Yapa v.Bandaranayake.(4*' Cf also per Soza, J. (Ranasinghe, J. agreeing) inKumaranatunga v. Samarasinghe.)m
The provisions of the Code of Criminal Procedure do not, withgreat respect continue to exist merely in “truncated form", as it wassupposed by Wanasundera. J. in Edirisuriya v. Navaratne,2,) andcited with approval by Kulatunga, J. in Wickremabandu v. Herathand Others.™ They may not set out the "procedure established bylaw* applicable to the circumstances of a particular matter relating toArticle 13 of the Constitution on account of the operation ofRegulation 19(1) because the arrest or detention has been made“under” Regulation 18(1). In such a case, the conditions for theoperation of the substituted provisions having been satisfied, theprovisions of the Regulations are followed as the relevant procedureestablished by law. The operation and exercise of Article 13(2) is notabsolute; but it is subject only to “such restrictions as may beprescribed by law”. (Article 15(7) ). Where the restrictions areconditional and the conditions have not been fulfilled, the operationand exercise of Article 13(2) is subject to the ordinary proceduresestablished by law. The provisions of the Code of Criminal Proceduredo not exist in a mutilated form, but are merely conditionallysuspended by the Emergency Regulations.
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Looked at in this way, Chandradasa and Kularatne v. LaiFernando<KI; Vidyamani v. Jayatilleke <l2,and Wijewardene v. Zain,,3>where there were no reasonable grounds for arrest and detention;and Dissanayake v. Superintendent of Prisons!” Jayaratne v.Tennekoon,m Padmakanthi v. O.I.C. MataleS"1' Fernando v.Kapiiaratne1601 and Godagama v. Ranatungd**' where the detentionalthough originally under and in pursuance of a procedureestablished by law subsequently ceased to be so, the petitionersrights under Article 13(2) were violated because they were notproduced before a judge in terms of sections 36 and 37 of the Codeof Criminal Procedure, although the violations have been explainedby reference to "unlawfulness", or “illegality", or “excess” in the senseof long duration.
In the matters before us, the provisions of the EmergencyRegulations relating to production before a judge were inapplicablebecause the petitioners could not have been arrested and detainedunder or in pursuance of Regulations 17 or 18. Therefore in terms ofthe applicable procedure established by law, namely Section 37 ofthe Code of Criminal Procedure, the petitioners should have beenproduced before a Magistrate no later than twenty-four hours of thearrest. As we have seen, the petitioners in this case were not arrestedbecause they were committing or had committed any offence. Theywere not arrested because they were suspected to be concerned unor to be committing or to have committed an offence. They were notdetained for any search or investigation on account of beingconcerned in or committing or because they had committed anyoffence. I do not think they should in terms of Sections 36 and 37 ofthe Code of Criminal Procedure, have been detained except for thetime necessary to transport them from the temple, where they werearrested, to the Magistrate of the nearest competent court. Even if aperson has been incarcerated following a procedure established bylaw, that does not completely terminate his or her right to liberty. Thatis a very basic and fundamental principle enshrined in theConstitution and supported by reason and abundant precedent Inthe matters before us the petitioners were not arrested under aprocedure established by law; they were arrested on grounds ofvague suspicion, in circumstances that showed a reckless disregard
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for their right to personal liberty so that their right to be producedbefore a Judge was particularly urgent. In failing to comply with the“salutary” provision relating to the production of the petitioners beforea judge of the nearest competent court in this way, the respondentstransgressed the rights conferred on them by Article 13(2) of theConstitution.
DECLARATION AND ORDER IN RELATION TO ARTICLE 13(2)I therefore declare that the fundamental rights of the petitioners tobe brought before the judge of the nearest competent Courtaccording to procedure established by law, guaranteed by Article13(2) of the Constitution were violated.
I make order that Jayasinghe Mudiyanselage Janaka PriyanthaBandara applicant in SC Application No. 151/92 and WeerasekeraMudalige Anura Weerasekera applicant in SC Application No. 155/92who were detained from 27th February to 3rd March 1992 withoutbeing produced before a Magistrate, shall each be severally paid asum of Rs. 5000 by the State as a solatium for the violation asaforesaid of their rights guaranteed by Article 13(2) of theConstitution. I
I further order that Malinda Channa Pieris, applicant in SCApplication 146/92; M. D. Daniel, applicant in SC Applicant 147/92.Singapulli Hewage Dayananda, applicant in SC Application 148/92;Athureliye Rathana (Ranjith), applicant in SC Application 149/92;Kuruwitage Nandana Perera, applicant in SC Application 151/92;Pallimulle Hewa Geeganage Pradeep Chandanaratne, application inSC Application 153/92; Ranawake Arachchige Patali ChampikaRanawaka, applicant in SC Application 154/92; and the followingapplicants in SC Application 155/92, namely, Avalikara GalappathigeMuditha Malika Wimalasuriye; Gileemalage Janaka PriyanthaDayaratne: Karunaratne Paranavithana: Rev. KalupahanaPiyarathana; Rev. Ambalanthota Premarathana; and Rev. KithulagalaUpali who were detained from 27th February to 17th March 1992without being produced before a Magistrate be each paid severally asum of Rs. 9000 by the State as a solatium for the violation asaforesaid of their rights guaranteed by Article 13(2) of theConstitution.
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Rev. Thalapitiye Wimalasara was neither present at the meetingnor was he a member of the Peramuna. I therefore order thatRev. Thalpitiye Wimalasara the applicant in SC Application 150/92 bepaid a sum of Rs. 10,000 by the State as a solatium for the violationof his rights guaranteed by Article 13(2) of the Constitution by hisdetention without being produced before a Magistrate from 27thFebruary to 17th March 1992.
ALLEGED VIOLATIONS OF ARTICLE 11The petitioners complained that their fundamental rightsguaranteed by Article 11 of the Constitution were violated by therespondents. Article 11 provides that “No person shall be subjectedto torture or to cruel, inhuman or degrading treatment or punishment".
Three general observations may be usefully made at the outset.
Firstly, the acts or conduct complained of must be qualitatively of akind that the Court can take cognizance of. Where it is not so, theCourt will not declare that Article 11 has been violated. (E.g. see W.
K. Silva v. Chairman Fertilizer Corporation ‘,33’ – which suggestedcriteria for identifying acts that were violative of Article 11 – followedin Samanthilaka v. Ernest Perera and Others ,97); Weerakoon andAllahakoon v. Beddewala <<n; Vithanage Kumar Medagama v.Praneeth Silva and Others(,34> and Ratnasiri v. Devasurendran andOthers.03* Cf. also Lundstron v. Cyril Herath and Others W1;Gunasekera v. Kumara and Others ; Perera and Sathyajith v.Siriwardend831; Fernando v. Kapilaratne and Others m>; Kumarasenav. Sub-Inspector Shriyantha and Others.1*
Where the acts proved are qualitatively of the relevant kind, theCourt has declared a violation of Article 11 to have taken place. (E g.See Amal Sudath Silva v. Kodituwakku<,37); Pathmasiri v. Illangasiriand Others(1,4); De Silva v. Amarakond,3W; Lankapura v. LathiffAbeywickrama v. Dayaratne and Others (901; Alwis v. Raymond andOthersRagunathan v. ThuraisingharrtSS)i, Samanthilaka v. ErnestPerera and Others,BI; Geekiyanage Premalal de Silva v. RodrigoJayaratne v. Tennekoon Gamlath v. Silva m: Ekanayake v. HerathBanda and Others(2n; Liyanage v. Chandrananda m; Vidyamani v.
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Jayatiiieke and Others02': Wijesiri v, Rohan Fernando and OthersRatnasiri and Kumarana v. Devasurendran and Others (,3S>;Weerakoon v. Weeraratne(,S); Liyanagev. Chandrananda and Others(42);Wimalawardena v. Nissanka and Others Ariyatitlake v. Thalawalaand Others.<,40>
Those were cases in which physical harm of a qualitativelyrelevant nature in terms of the criteria set out in W. M. K. de Silva|1M>were satisfied. The Court was satisfied that the acts in question hadoccasioned suffering of a particular intensity or cruelty implied by theword “torture’ (Cf. Ireland v. U.K."4" decided by the European Courtof Human Rights on 18th January 1978) or that the sufferingoccasioned had attained the level of severity inherent in the notionsof "torture" and “inhuman”, “degrading" treatment. (Cf. the decisionsof the European Court of Human Rights in Ireland (supra) and inTyrer 048 and Campbell and Cosans.1'*3' As to whether a particular actsatisfies the relevant criteria is not an easy matter to determine. Theassessment is in the nature of things, relative and depends on all thecircumstances of the case including the nature and context of the actand the manner and method of its commission. (Cf. the decision ofthe European Court of Human Rights in the Tyrer case."48 As it wasobserved in Gunasekera v. Kumara and Others (supra), adoptingdicta from Hobbs v. London &S. W. Railway'44', the decision whetheran act is qualitatively of the kind that contravenes Article 11 “issomething like having to draw a line between night and day; there isa great duration of twilight when it is neither night nor day; but on thequestion now before the Court, though you cannot draw the preciseline you can say on which side of the line the case is."
The facts in Kumarasena v. Sub Inspector Shriyantha and Others(6>left the Court in no doubt that the petitioner's case fell on the side oftransgression. The petitioner was young girl who had been arrestedwithout reasonable grounds and detained for about six hours at apolice station. During that time, several police officers, accepting theinvitation of the officer making the arrest to play with the “toy" he hadfetched, touched her body, squeezed her breasts, pinched herbuttocks, addressed her as "love bird", questioned her as to whethershe wore underwear and invited her to come out with one of them.The Court held that the petitioner had been subjected to degradingtreatment.
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In that case I said: "In the circumstances of this case, the sufferingoccasioned was of an aggravated kind and attained the required levelof severity to be taken cognizance of as a violation of Article 11 of theConstitution. The words and actions taken together would havearoused intense feelings of anguish that were capable of humiliatingthe petitioner. I therefore declare that Article 11 of the Constitution wasviolated by the subjection of the petitioner to degrading treatment."
Secondly, torture, cruel, inhuman or degrading treatment orpunishment may take many forms, psychological and physical.(W. M. K. Silva v. Ceylon Fertilizer Corporation)|1M> Holding a personincummunicado, without required medication, without adequate foodand basic amenities for the performance of normal bodily functionsand requirements, including sleep, have been held to be violative ofArticle 11. See Fernando v. Silva and Others.
Thirdly, having regard to the nature and gravity of the issue, a highdegree of certainity is required before the balance of probabilitymight be said to tilt in favour of a petitioner endeavouring todischarge his burden of proving that he was subjected to torture or tocruel, inhuman or degrading treatment or punishment; and unless thepetitioner has adduced sufficient evidence to satisfy the Court that anact in violation of Article 11 took place, it will not make a declarationthat Article 11 of the Constitution did take place. (Goonewardene v.Perera & Others <,4S1; per Wanasundera, J. in Thadchanamoorthi v.A.G. & Others'14®1; see also Vijayakumar v. Gunawardena11471 read withNamastvayam v. Gunawardene<118); Wijewardene v. Za/n,,3>; Witharanav. A.G. and Another <14,>; Hameed v. Ranasinghe and Others(un ::Samanthilaka v. Ernest Perera W7'; Seneviratne v. Karunatilleke andOthers<“>; Sirisena and Others v. Ernest Perera and Others m. Would"the guarded discretion of a reasonable and just man lead him to theconclusion"? is the test I would apply in deciding the matter. If I am inreal and substantial doubt, that is if there is a degree of doubt thatwould prevent a reasonable and just man from coming to theconclusion, I would hold that the allegation has not ben established.(Cf. Bater v. Baxter(1S11 cited with approval by Wanasundera J. inVe!umurugu)w With regard to the standard of proof where arespondent denies the petitioner's averments see alsoSasanasiritissa There and Others v. De Silva and Othersl14).
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In this connection, I take note of the following observations of theEuropean Commission of Human Rights in the Greek Case ('“) quotedwith approval by Sharvananda J. in Velmurugu v. Attornery-Generalmand followed by G. P. S. de Silva, J. in Abeywickrema v. Dayaratneand Others’**
"There are certain inherent difficulties in the proof ofallegation of torture or ill-treatment. First, a victim or a witnessable to corroborate his story might hesitate to describe or revealall that has happened to him for fear of reprisals upon himself orhis family. Secondly, acts of torture or ill-treatment by agents ofthe Police or Armed Services would be carried out as far aspossible without witnesses and perhaps without the knowledgeof higher authority. Thirdly, when allegations of torture or ill-treatment are made, the authorities, whether the Police orArmed Services or the Ministries concerned, must inevitablyfeel that they have a collective reputation to defend, a feelingwhich would be all the stronger in those authorities that had noknowledge of the activities of the agents against whom theallegations are made. In consequence there may be reluctanceof higher authority to admit or allow inquiries to be made intofacts which might show that the allegations are true. Lastly,traces of torture or ill-treatment may with lapse of time becomeunrecognizable, even by medical experts, particularly where theform of torture itself leaves … few external marks."
The Supreme Court has been conscious of the difficulties in theproof of allegations of torture and stated that it will have regard to thecircumstances of a case and not impose undue burdens on apetitioner which might impede access to justice. (See Samanthilakav. Ernest Perera and Others m followed in Liyanage v. Chandranandaand Others ‘“’.There were no special difficulties of proof alleged in thematters before us. The petitioners experienced no constraints indescribing their grievances. As Wimalasuriya states in his affidavit,when the representatives of the Red Cross visited them at the PoliceStation “We described to them exactly how we were treated.”According to Seneviratne, the petitioners obtained relief bycomplaining to the Assistant Superintendent of Police. Moreover, thepetitioners have quite freely, in their several affidavits, narrated theirstories without reservation. The difficulties in the matters before us, as
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far as the petitioners are concerned, are not based on a want ofevidence due to hesitation on their part to describe what happened,but rather, in several instances, on account of complications causedby their freedom to say as much as they did. It was an embarrass derichesse situation that impeded proof of the violation of Article 11 ofthe Constitution in several instances.
Nor was there a tack of witnesses. Their alleged infringements inthe matters before us are supported by affidavits of the otherpetitioners who state they were spectators of those acts and auditorsof the statements that gave rise for complaint.
There is no complaint that might even remotely suggest that“higher authorities" allied themselves with their subordinates. On theother hand, Seneviratne states that when complaints were made tothe Assistant-Superintendent, he took steps to make life moretolerable by ordering the removal of handcuffs. Not only wereinquiries made but positive remedial action was also taken by thehigher authorities.
The observations in the Greek Case 0521 are limited to a physicalharm. In Sri Lanka, we have gone beyond regarding torture, cruel,inhuman and degrading treatment or punishment as being limited tophysical injury, hurt, impairment or ill-treatment, see W. M. K. de Silva(supra) and Fernando v. Silva (supra). See also Kumarasena v. Sub-Inspector Shiyantha and Others, (supra). However, where such harmis alleged, as G. P. S. de Silva, J. observed in Abeywickrema v.Dayaratne and Others (supra) “from a practical point of view, “it isoften only the medical evidence that could afford corroboration.1'These observations, as we shall see, are particularly applicable toDayananda’s case, (Application 148/92 and Bandara’s case (152/92).As for the supposition that the police have techniques of assaultingpersons without leaving traces, which the Greek case, on account ofits reference to “forms of torture”, is sometimes said to have noted,and which loomed large in Dayananda’s case, I must draw attentionto the words of Wanasundera, J. in Thadchanamoorhi v. A.G. andOthers : “I do not think … the Police have so perfected the art ofassaulting that even when they use force … one should not expect tofind any marks of violence." The difficulty of recognition due to thehealing process of time is another matter.
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The evidence adduced appears in the several affidavits of thepetitioners and respondents and by other persons. In setting out thefacts, I shall refer to the deponent, the application number to whichthe affidavit relates, and relevant paragraph of the deponent'saffidavit.
After the arrests were made, the hands of the lay petitioners weretied with strips of cloth from a torn sarong. (Bandara 152/92, 3.4 saidit was his sarong). The priests were not tied. (Seneviratne 146/92, 5:3;Daniel 147/92, 3:1; Dayananda 148/92, 3.6; Rathana 149/92, 2.10;Wimalasara 150/92, 2.3). Bandara (152/92, 3.4) complained that thebinding was so tight that he suffered from numbness.
The petitioners were then transported in a van and a jeep to theWadduwa police station. (Seneviratne 146/92, 5.3; Daniel 47/92. 3.1;Dayananda 148/92, 3.6; Wimalasara 150/92, 2.3). Those who were inthe van were kept in it until 4.30 or 5 p.m. which some of thepetitioners regarded as a long time. (Bandara 152/92, 3.4). Danielwho wanted to answer a call of nature was particularly distressed.(Daniel 147/92, 3.10).
At the Wadduwa Police Station, Rev. Rathana, the petitioner inApplication 149/92, and Champika Ranawake, the petitioner inApplication 154.92, were confined in two separate cells. (Seneviratne146/92, 6.1; Daniel 147/92, 3.2; Dayananda 148/92, 4.1; Rathana149/92, 2.10; Wimalasara 150/92, 3.1; Nandana Perera 151/92, 3.1;Bandara 152/92, 4.1).
According to the petitioners, the others were tied or chained orhandcuffed to each other and made to sit here and there linked byhandcuffs fastened on their ankles or otherwise to the bannisters ofthe. stairway at the Police Station. Bandara complained that thehandcuffs out on his leg (sic.) at the Police Station were tight.Seneviratne. (146/92), 6.1) M. D. Daniel (147/92, 3.2) and Dayananda(148/92, 4.1) sat on the floor. However, the priests were given abench. (Daniel 147/92. 3.5; Dayananda 148/92, 3.4; Wimalasara150/92, 3.1; Nandana Perera 151/92, 2.6 and 3.1; Jayalin Silva’saffidavit of 3.11.1992 paragraph 7 filed in 150/92).
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The third respondent states in his affidavit that, due to the lack ofaccommodation in the cells, some of the petitioners were keptoutside the cells under police supervision but that all of them weregiven benches to sit on and that they were not handcuffed or chainedto the bannister, nor tied with strips of cloth. (See the thirdrespondent's affidavit in 146/92, 7; 147/92, 8; 148/92, 6; 151/92, 7;152/92, 6; 153/92. 7; 154/92. 7; 155/92, 7).
Dinner was provided at 10 p.m. (Seneviratne 146/92, 6.2; Rathana149/92, 4.1; Wimalasara 150/92, 3.1; Nandana Perera 151/92, 3.3).They were served with dhal and bread. They were not faring toobadly, for dhal and bread was what they had eaten by choice on theprevious night. (See Seneviratne 146/92, 5.1). However, Seneviratnesays the dhal supplied by the Police was “uneatable” (146/92, 6.3);and Nandana Perera (151/92, 3.3) and Chandanaratne (153/92, 3.3)complained of "too much salt”. Ranawake (154/92, 4.14) complainedof the lack of water at the Pettah Police Station. He complained “wewere infected with diarrhoea." No one else made such a complaintand so Ranawake’s ailment may have been related to somethingother than the quality of the water supplied. There were no othercomplaints about the food except Bandara's comment (152/92, 4.5)that it was “not palatable.” Whatever was normally required by way offood to support life was supplied. The third respondent in bisaffidavits (151/92, 11; 146/92, 5; 153/92, 9) states that the petitionerswere served with meals "normally supplied to police officers". It is ofinterest to observe that Seneviratne in his affidavit (146/92, 6.2; lastline) refers to the petitioners offering biscuits to some person otherthan one of their group who had been brought to the police station.The biscuits and other items of food may have been brought bymembers of their families or by their friends and well-wishers whovisited them and augmented and supplemented their supplies offood. However, from-whatever the source, wholesome food wasavailable although fastidious persons like Seneviratne.Chandanaratne and Bandara might have been somewhatdisappointed with the quality of food police officers and those in theirkeeping are required to eat.
Ranawake (154/92, . 4.12) states that his parents were allowed tosee him to hand him food and to check if he needed anything. He
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complained, however, that visits were limited to such purposes.Others complained that only family members were allowed to visitthem and that friends had to be accompanied by either parent of thepetitioner (Seneviratne 146/92, 6.8), or that they were not allowed totalk “freely" with their visitors (M. D. Daniel 147/92, 3.10; Wimalasara150/92, 3.2). Dayananda (148/92, 4.6) and Rathana (148/92. 4.2)state that those who came to see them were only allowed to ask ifthey needed anything. Dayananda adds that his wife “was notallowed to speak even a word.” He states, however, that they werevisited by the Red Cross. Wimalasuriya (155/92, 4.7) also recalls thevisit of the Red Cross and says: “We described to them exactly howwe were treated." Ranawake (154/92, 4,6) recalls that he was visitedby the Vice Chancellor of the Moratuwa University.
No affidavits or reports from the Red Cross or the Vice Chancellorhave been filed in these proceedings, and the learned DeputySolicitor-General pointed out that information from disinterestedpersons would have helped to ascertain the truth relating to thealleged violations of Article 11 of the Constitution,
The conversations might have been limited: but the petitionerswere not held incommunicado. The affidavits of the petitioners,supporting petitions from others filed in 146/92 and 155/92 by thepetitioners, the third respondent's affidavits, and extracts from theRoutine Information Book he has filed, make this very clear.
Nor was it denied that anyone in need of medication had to sufferwithout it. Wimalasara (150/92, 3.1) states that he was taken back tothe temple at about 7 p.m. on the date of the arrest "to collect someclothes and some medicine for my illness." Ranawake (154/92. 4.9)says he was given “Panadol" for his fever. Bandara says (152/92,4.9)he had Panadol and used “Siddhalepa" to ease his “aches andpains.”
Nandana Perera (151/92, 3.12) complained that the petitionerswere permitted to answer calls of nature only once a day andBandara (152/92, 4.5) and Wimalasuriya complained that thepetitioners were allowed to bathe only once. Chandanaratne(153./92, 3.5) says that although he was allowed to go to the toilet on
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the day after the arrest, he was not allowed to wash himself, but thatafter the Red Cross personnel arrived, the petitioners were allowed tobathe and wash their clothes. These allegations are denied by thethird respondent. (See affidavits in 152/92,10, and 153/92,11).
According to their affidavits, the petitioners seem to have found itirksome that they were interrogated, finger-printed, photographed,and constantly placed under guard.
Seneviratne (146/92, 6.8) complained of the discomfort of havingto sleep handcuffed during the first two days. However, he says that“this practice was stopped" after complaints were made by thepetitioners to the Assistant Superintendent of Police. Seneviratneadds that “Although there was no physical ill-treatment, many of theofficers passed remarks which caused us great pain of mind."
The use of opprobrious, abusive, rude, offensive and coarselanguage by the third and fourth respondents is referred to by all thepetitioners but denied by the respondents.
It is alleged that menacing references were made. It is said bysome of the petitioners, that “One Sergeant threatened us saying'parana tyre thevama (sic,) ivara nehe, thava ona tharam thiyenava.’We were not allowed to speak with each other." (Dayananda 148/92,4.2; Nandana Perera 151/92, 3.2; Bandara 152/92, 4.2;Chandararatne 153/92 3.2; Wimalasuriya 155/92, 4.2) Ranawake154/92. 4.4 is supposed to have been told by “several PoliceOfficers: 'Bandaragama Avi deepang’ 'thova ada mas karanava’ andother such threats. One person said Thova tyre vala yavanava.' Iheard the others being threatened in a similar way.'
Stated as it is in exactly identical terms, including the unrelatedcomplaint of not being allowed to speak to each other, the version ofDayananda, Nandana Perera, Bandara, Chandanaratne andWimalasuriya appear to me to be artificial. In fact, I believe that theirstory and the threats reported by Ranawake seem to have beeninvented to tie up with their version of the fears they were supposedto have entertained when they were taken into custody.
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At the time of the arrest, some of the petitioners (M. D. Daniel147/92, 2.4; Dayananda 148/92, 3.4; Nandana Perera 1512/92, 2.5;Bandara 152/92, 3.3; Chandanaratne 153/92, 2.4 and Wimalasuriya155.92, 3.3) say – in he course of a long passage, couched again inidentical terms – that they conjured up "visions of dead bodies"during the so called "beeshanaya". (Would “reign of terror" be anappropriate translation?). Imagination, rather than the facts, seem tohave played the dominant part in causing fear. One petitionerfrightened himself by recalling “films" he had seen. SoChandanaratne says in paragraph 3.3 of his affidavit (153/92). Theyhad supposed that the respondents were, as they say, members of a“vigilante group". However, at least by the time the statementsreferred to above were supposed to have been uttered, thepetitioners had no illusions as to who the respondents were andtherefore had no rational basis for fears of the sort they weresupposed to have at first entertained. In fact they must have knownthis even before they were transported to the temple, for although thefourth respondent and some others were supposed to be in “civils",the third respondent was in uniform and he was identified by thepetitioners on account of his distinctive clothes as a “PoliceInspector”. (Seneviratne, 146/92, 5.3; Daniel 147/92, 3.1; Dayananda148/92, 3.6; Rathana 149/92, 2.10; Nandana Perera 150/92, 3.4;Chandanaratne 153/92, 2.5; Ranawake 154/92, 4.3; Wimalasuriya155/92, 3.4).
The petitioners may have experienced feelings of apprehension ordisquiet, but that was insufficient to bring them within the provisionsof Article 11. (Cf. the dicta in the case of Campbell and Cosans<l<3)decided by the European Court of Human Rights on 25th February1982). There was nothing said or done that subjected them to intensephysical or mental anguish or that aroused such intense feelings ofanguish and inferiority as were capable of humiliating and debasingthem so as to break their physical and moral resistance. (Cf. thedecision of the European Court of Human Rights in Ireland |U'Tyred'**; Campbell and CosanS,43)
None of the matters referred to so far amount to any transgressionof Article 11 of the Constitution in terms of the criteria proposed inW. M. K. de Silva<mNor do they even remotely resemble the facts in
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Fernando v. Silva <Mtor Kumarasena v, Sub-Inspector Shriyantha andOthers<6t. The petitioners might have been greatly distressed and feltkeenly the loss of their personal liberty and accustomed comforts, yetthere was no torture, cruel, inhuman or degrading treatment withinthe meaning of Article 11.
Indeed, on the whole, the petitioners had very little to complainabout.
Nandana Perera (151/92. 3.12} makes the following interestingobservation: “Although some of the officers were very cruel, a lot ofthem treated us kindly." Ranawake (154/92, 4.14) says that “The onlycause for complaint at Pettah was the lack of water. We were infectedwith diarrhoea." However, Chandanaratne (153/92, 3.10) wascontented during his detention at the Pettah Police Station. He says:“Here we were treated very well, food being given regularly, and norestrictions being placed on talking amongst ourselves."
I might say at once that there are no allegations in any of theaffidavits relating to the violation of Article 11 by any of therespondents except those in relation to the third respondent.Inspector of Police Karunatilleke, the Officer-in-Charge of theWadduwa Police Station, and the fourth respondent, Sub-inspectorPiyaratne of the Wadduwa Police Station. I therefore declare thatthere are no violations proved or even suggested in the petitioners'affidavits against any of the respondents in the matters before thisCourt except with regard to the third and fourth respondents againstwhom certain matters are alleged. There are certain allegations madein some of the affidavits against Sergeant Chumley, who was,however, not named as a respondent. (See my observations in thisregard later in this judgment in considering Wimalasara's Case).
Ranawake (154/92) and following petitioners in Application 155/92- Wimalasuriya, Rev. Piyarathana, Rev. Premarathana and Rev.Kithulgala Upali – made no complaints of assault.
Nandana Perera’s complaint (151/92, para 3.5) was that he was“poked" with a stick by the third respondent as he passed him.
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According to Daniel (147/92, 3.8). Dayananda 148/92, 4.7;Nandana Perera (151/92, 3.9) and Chandanaratne (153/92, 3.7),expressing themselves in their separate affidavits in identical words:‘one day SI Piyarathana asked something from Anura Weerasekeraand slapped him saying “thopi police karayo ponnayo kiyalahithuvade? Police report aavama thope ellala api ahagannam."
Even if they did take place, I cannot regard the trivial acts relatingto Nandana Perera and Weerasekera as violations of Article 11.
Daniel (147/92, 3.7) says that “One particular Sergeant was in thehabit of kicking me on my head as he passed me." Who thatSergeant was is not known, nor is Daniel supported by any otherpetitioner. Daniel also complains (3.8) that the fourth respondentonce pulled his hair. Even if this were true, it was too trivial a matter tobe taken cognizance of under Article 11.
The alleged assaults which might support some of the otherpetitioners’ complaints in relation to Article 11 took place betweenabout 1.30 a.m. and 3,30 a.m. on 28th February 1992. AlthoughNandana Perera (151/92, 3.3) states that from dinner time till 1.30a.m. the petitioners were subjected to threats, he does not state whouttered the threats or what they were. They were certainly not utteredby the third and fourth respondents who, he says, came in at 1.30a.m. The more likely position is that after dinner, as many of thepetitioners say (Seneviratne 146/92, 6.2; Rathana 149/92, 4.1;Wimalasara 150/92, 3.1; Bandara 152/92, 4.3; Wimalasuriya 166/924.3), the petitioners fell asleep or tried to sleep, albeit in theiruncomfortable positions, (in the case of Chandanaratne 153/92 – 3.3- with his head on his knees), until about 1.30 a.m.
Bandara’s Case:The essential features of his own case as stated by Bandara(152/92), and certain matters stated by him relating to the allegationsof assault on certain other petitioners, are as follows: *
*4.1 I was taken up the stairs and chained to one of the bannisterswith a pair of handcuffs. These were actually put upon my left ankle.
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Sergeant Chumley without taking any notice of my request not totighten it too much, he tightened the handcuffs.
That night I had to sleep on the stairs. The OIC, the thirdrespondent, "came around 1.30 a.m. He was wearing a white pair ofsharts" (sic.) "and T shirt (white, with stripes). He said: "geri JVPkaaraya, thopi konaka indala hamagahanava, den ithin eththakiyapiyav, neththeng gahanne eilala. “ He also said “thopi aanduvaperalannada hadanne? Thope nayakaya Wijeweera merenna bayepaava deepuy ekkek. Oo merenna baye Gamanayake paava dunna.Paava dunne nethi ekama eka JVP karayay mata hambavune, Ugenama… (he said a name which I can't remember), umbala hitapaupansale haamuduruvo marapu eka thamey oo. Oo vitharay merennabaye paava dunne neththe. 'Sir, ekaparata oluvata vedi thiyalamaranna' kiyala, vedi thiyanakotama uda penala ‘Janatha VimukthiPeramunata Jayawewa' kiyala vedi kata maruna. Thopith nikangmerun noka aththa kiyapang. "
The OIC said “onna oyahaamduruva huththige puthavamehata ganing sivura galola. “ and went upstairs. Rev. Wimalasara(from the temple) was taken up. I heard Rev. Wimalasara beingbeaten. I started shivering, thinking that he would do the same to me.
Then they asked Chandana about his family. After that the OICkicked and hit Chandana and hammered his head many timesagain” (sic.) “the wooded" (sic.) "hand rail of the staircase. He thenpointed to me and [there is a long blank space here in the affidavit]"ganin okava udata”. While I was being taken upstairs I was beatenon my face, head and chest. I was thrown off balance and got throwna few feet away and fell down. The OIC said “oya polla genen" andtaking the stick which SI Piyarathana was carrying, he hit me on mythighs and on my calves. He said “thoge athapaya kadanava.Kiyapiya gihilla geval bindaneda?” I was in extreme pain. He kicked. me once more and said: “meeta vediya gehuvoth ila eta kedeneva,guti kannavath puluvan ekek nemey, violava karanna heduvata." Iwas tied upstairs. I was bleeding from a wound inside my mouth. I feltdizzy and felt that I was going to faint. Expecting another round ofassault I was terrified and was shivering. The OIC then went up to
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Priyantha who was tied up upstairs and said “geri vesige putha, thonidida?" and hit him with a stick and trampled him. I saw Priyanthasquirming in paid, sobbing and shivering. Chandana who had beenbeaten earlier also, was brought up again and beaten again by theOIC. "Kiyapiya tho mokatada aave kiyala, kamkaruvage puth, belligeputha. After beating him the OIC asked him many questions aboutsome “pamunugama incident". Meanwhile Piyarathana came up tome and said “kiyapiya tho pita palath keeyaka veda karalathiyenavada?" He hit me in the area below my right ankle and on mysole. After that the two of them went downstairs. I continued to hearfoul language and the sound of someone being beaten and cries ofpain. Meanwhile, I could hear Sergeant Chumley taking down Rev.Wimalasara's statement. I heard him shouting and the sound ofassault. After some time the OIC came up again and startedlecturing Chandana “apita onanam thopi okkama maranna puluvang,evata apita balaya thiyenava, thopi dannavada hadisi neethiyagene?"
The words I have italicized, in paragraph 4.3 of Bandara's affidavit,including the curious word "shads" and the words “uge nama. . (hesaid a name which I can't remember)”, are produced in identicalterms in paragraph 3.3 of Nanda Perera’s affidavit in Application151/92 as well as in paragraph 4.3 of the affidavit of Wimalasuriya(155/92).
The words I have italicized in paragraph 4,4 of Bandara's affidavitare reproduced in identical terms in paragraph 4.3 of Wimalasuriya’saffidavit in Application 155/92.
The affidavits have obviously been prepared using (or moreaccurately in this case, abusing) the facilities of a word-processingdevice. Blocks of data have been mechanically transferred from oneaffidavit to another. The little speech by the man in what has beendescribed in three separate affidavits as “white sharts and a T shirt(white with stripes)", was, it seems, remembered and recalled withprecision, except for a certain name with regard to which all threedeponents not only, inexplicably, suffer amnesia, but also record theirinability to remember precisely in the same way. The remarkably
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consistent way in which the events have been reported make theaffidavits of Bandara, Nandana Perera and Wimalasuriya suspect.
When variations were sought to be introduced, the amendmentswere made without due care. Wimalasuriya’s affidavit has beenamended to enable Bandara to fit in his story into his own affidavit. Inthe process of manipulation, “against’’ in the affidavit of Wimalasuriyahas been retyped as "againd" in Bandara’s application. In thefollowing sentence, Wimalasuriya says: "He then pointed to JanakaBandara and said "ganin okava udata.” The words “Janaka Bandaraand said" were deleted in turning out Bandara's affidavit andreplaced only with the word “me”. By failing to retype the word “said"the sentence is left incomplete, leaving a tell-tale blank space inBandara’s affidavit.
Wimalasuriya does not say that he witnessed Bandara beingassaulted. He merely states that he and the second petitioner inApplication 155/92, Dayaratne, "heard Janaka’’ Bandara “beingbeaten," There is no affidavit from Dayaratne supporting Bandara’scomplaint of assault. Nor is it supported by anyone else.
Bandara has said that he was already on the stairs when he wasordered to be brought up. If, as he says, he lost his balance and was“thrown a few feet away and fell down”, he must have fallen down thestairs and, if so, sustained serious injuries? There is no complaint ofsuch injuries. In paragraph 4.9 of his affidavit, Bandara states thatdue to the beating he received, a section of the right sole of a footwas numb. He says he was told by his family doctor that somenerves had been damaged and that he was treated for his ailment.Bandara has not filed an affidavit or medical report from the doctor.However, he filed an affidavit to meet the third respondent’s denial ofassault but in doing so merely reaffirmed what he had said in hisearlier affidavit in broad, general terms. He tiled a supporting affidavitfrom his sister who, on 1st March 1992, accompanied by her mother,saw him at the Police Station. However, she does not report him tohave been in pain. She merely says he was handcuffed to a bannisterand that she was not permitted to speak to him. From a “practicalpoint of view’1 (Abeywickrama v. Dayananda, (supra)) why did he notadduce supporting medical evidence?
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In this state of the evidence, I entertain very real and substantialdoubts about the truth of Bandara’s allegations of assault and ltherefore declare that he has not established that his rightsguaranteed by Article 11 of the Constitution have been violated.
Wimalasara’s CaseRev. Wimalasara (150/92) in paragraph 3.1 of his affidavit statedthat he fell asleep after dinner and woke up “around 1.30 p.m. (sic.)when the OIC started shouting “Ko ara thalpitiye eka mehata genen."He says he was then taken upstairs into a room where he was madeto sit next to Sergeant Chumley. There was, he says, “an RWPC neara typewriter.* Wimalasuriya continues as follows: “The OIC came upto me wearing a pair of shorts and a T shirt smelling of liquor. Hesaid: ‘galopiya paaharaya sivura, tho eththe kiyapiya, netham thovavedi thiyala maranava." He made me sit on the floor and kicked meon my'neck, saying that I was hiding some guns. I denied this. Afterthat he went out. I heard him beating someone else. SergeantChumley then beat me saying: me vidihe kata uththara vissak vitharagannava, udeth retath danduvam denava, eththa kiyapiya. He also hitme on my neck and back.”
Bandara, Nandana Perera and Wimalasuriya, as we have seen,said that the third respondent made a speech about Wijeweera andthe assassination of Wimalasara’s predecessor at the temple. Thisdid not awaken Wimalasara. He woke up only when he was orderedto be fetched. Wimalasuriya’s version (155/92, 4.4) is that after hisspeech, the third respondent said: “ ’onna oya hamuduruva huthigeputhava mehata ganing sivura galola’ and went upstairs. Rev.Wimalasara (from the temple) was taken up. I heard Rev. Wimalasarabeing beaten … I and the second petitioner could hear SergeantChumley taking down Rev. Wimalasara’s statement. I heard himshouting and the sound of assault.”
Was the order to disrobe in the terms stated by Wimalasara or byWimalasuriya? Where was Wimalasara disrobed, if at all? WasWimalasara who was at first seated next to Sergeant Chumley laterordered to sit on the floor to be kicked on his neck? No otherpetitioner says he saw Wimalasara disrobing or being disrobed or
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being kicked. Wimalasuriya says he “heard" Wimalasara beingbeaten, On what basis did Wimalasuriya come to that conclusion?Wimalasara says that after he was kicked on the neck, the thirdrespondent went downstairs. Wimalasuriya, however, states that theOIC proceeded to kick and hit Chandana, ordered Bandara to bebrought up and beaten, he then beat Dayaratne and trampled him,spoke to and beat Chandana again and then, after all that, "the twoof them", the third and fourth respondents, went downstairs.“Meanwhile”, Wimalasuriya says, he and Dayaratne “could hearSergeant Chumley taking down Rev. Wimalasara’s statement. I heardhim shouting and the sound of assault.” If the third and fourthrespondents went downstairs, the assault could not have been madeby them, Wimalasara says that Chumley beat him, but Chumley hasnot been made a respondent and he has been given no opportunityof stating his case. As it was observed in Alwis v. Raymond andOthers 03' “natural justice demands that we should refrain fromcoming to any finding or order as to the involvement or liability of sucha person." In any event how did Wimalasuriya, who was downstairs,conclude that he “heard" Chumley taking down the statement? In thelight of the inconsistent versions of what was supposed to have takenplace, and in the absence of corroboration. I cannot hold that thealleged assault on Wimalasara has been established.
Paranavithana's CaseParanavithana (155/92) has not personally filed an affidavit, but atparagraph 3.3 of the petition filed in his name as one of severalpetitioners, and in several affidavits filed by other petitioners in anarration of events regarding the arrest at the temple in identicalterms, and it seems to me, in a highly artificial way (M.D. Daniel147/92, 2.4, Dayananda 148/92, 3.4; Bandara 152/92, 3.3;Chandanarathna 153/92, 2.4; Wimalasuriya 155/92, 3.3. Cf.Seneviratne 146/92, 5.3) he is supposed to have been “slapped” bythe fourth respondent at the time of arrest. Rathana does not mentionthe incident. Even assuming it to be true. I cannot regard such atrivial act as a violation of Article 11. Nor, for the same reason, can Iregard the alleged subsequent (M. D. Daniel 147/92 3.5; Dayananda148/92 4.4) slap given at the police Station as a violation. Seneviratne(146/92 6.2) said that Paranavithane was hit with a stick. In the
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petition in Application 155/92 in which Paranavithana is the thirdpetitioner, the Attorney-at-Law who has signed the Application states:“I verily believe and have been informed that the OIC had beaten thethird petitioner that night. He had been assaulted and kicked and hadbeen beaten with the pole that SI Piyarathana was carrying." It isstrange that Rathana, outside whose cell Paranavithana was kept,did not see the incident or if he did why he chose to ignore it in hisaffidavit. Nor does Seneviratne mention Paranavithana being kicked.No violation of Paranavithana's rights guaranteed by Article 11 of theConstitution have been established.
Dayananda’s CaseSunny Dayananda (Application 148/92) says in paragraph 4.3 ofhis affidavit that the third respondent came up to him and hit him onthe face. Then he hit him on his knees “and the head many times(over 20) with the stick saying “baya venna epa, thuvala venne ne,thuvala venne nethi vidihatagahanna api igenaganay thiyenne.”Seneviratne (146/92, 6.2) says: “He hit Sunny 25 times on the headwith the same stick saying, “Thuvala venne ne. thuvala novennagahana heti api igena genay thienne.” Nandana Perera says (151/92,3.5): “Next he went up to Sanidayananda and hit him on the face.Then he hit him on the head many times (over 20) with the sticksaying “baya venna epa, thuvala venne ne. thuvala venne nethividihata gahanna api igenegenay thiyenne.” Chandanaratne (153/92,3.3) says: “Next he went up to Sanidayananda and hit him on theface. Then he hit him on the head many times (over 20) with sticksaying “Baya venna epa, thuvala venne ne. thuvala venne nethividihata gahanna api igenagenay thiyenne.” What sort of credibilitycan one be reasonably expected to attach to affidavits prepared inthis way? And what does one make of the following statement inparagraph 4.4 of the affidavit of Bandara (152/92): “He kicked meonce more and said “Meeta vediya gehavoth ila eta kedenava, gutikannavath puluvan ekek nemey, viplava karanna heduvata." Did thethird respondent act with restraint because when it came toBandara's turn he had forgotten to use the special skills relating toassault he was supposed to have acquired? If the observations in theGreek case quoted in Vetmurugu and in Abeywickrama guided theperson who prepared the affidavits supporting Dayananda's
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allegations, it is a matter for regret that he chose to ignore theobservations of Wanasundera, J. in Thadchanamoorthi with regard tothe supposed techniques of assault, and the observations of G. P. S.de Silva, J. in Abeywickrama on the question of proof.
The “stick” with which the man was supposed to have been hit,“over 20" times, according to those who appear to have given upcounting at a certain point in time, and exactly 25 times according toSeneviratne, needs to be described in order to understand the feltneed on the part of the deponents to introduce the supposed boastby the third respondent of the skills he had learnt in hitting peoplewithout leaving incriminating injuries. The stick was said to be ‘aboutfour feet long, and slightly thicker than a brook-stick” which the fourthrespondent was carrying and from time to time handed to the thirdrespondent for beating someone. (Wimalasuriya 155/92, 4.4;Seneviratne 146/92, 6.2; M. D. Daniel 147/92, 3.4 and 3.6;Dayananda 148/92, 4.4 and 4.5; Rathana 149/92, 4.1; NandanaPerera 151/92, 3.5; Bandara 152/92, 4.4; Chandanaratne 153/92, 3.3,3.4). There is no medical evidence to support the allegation of theassault (see the observations of G. P. S. de Silva, J. in Abeywickramav. Dayaratne quoted earlier). If he was assaulted in the manneralleged on the night of 27th February, surely the marks of the assaultmust have been evident at the time of his release on 17th March? Thelapse of time could not have obliterated or made uncertain the harmsustained? Why was no medical evidence submitted? In thecircumstances, I hold that Sunny Dayananda has failed to establishthat his rights under Article 11 of the Constitution have been violated.
Rathana’$ CaseAthureliya Rathana (149/92) in paragraph 4.1 of his affidavit statesthat after dinner he fell asleep. He says: "I woke up around 1.30 a.m.upon hearing the sound of someone being beaten. Mulinda also gotup. A little while later, the OIC came up to the cell and said: “Kawdamethenta dennek damme? Moo kawda?" He then took out Milindaand beat him. After that he removed my robe and beat me, using hisfists. He also kicked me and banged my head against the wall.SI Piyarathana was carrying a stick. I started chanting the “karaniya
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metta suthra”. He said “thoge karaniya muththa” (sic.) ‘andcontinued to hit me. He also said “Mo (sic.) thamay naayakaya, arakollo okkama amaruve demme moo. Huthige puthava maranava,balla." After that I heard him beating several others.”
Seneviratne, who shared a cell with Rathana, (146/92, 6.2) saysthat after he himself was assaulted by the third respondent, “He thenpulled Rev. Rathana and started hitting him. Rathana started sayingthe 'karaniya metta sutta’ and the OIC continued to hit him saying‘Karaniya metta; thota dennang karaniya huththa." Seneviratne doesnot mention the disrobing, nor the allegation that Rathana was kickedand that his head was banged against the wall. Nor does Seneviratnemention the alleged statement about Rathana's role in misleading theothers and the vituperative words referred to by Rathana.
M. D. Daniel (147/92, 3.5), Dayananda (148/92, 4.4) and NandanaPerera (151/92, 3.4) say that the third respondent asaultedSeneviratne. “Then I heard him saying “galavapang hamudurvangesivura, tho thamay mun serama amaaruve danne" and startedassaulting the priest. Rev. Rathana started telling the Karaniya mettasitra" (sic. – this is how it is in the affidavits of Daniel, Dayananda andNandana Perera), "The OIC said "Karaniya metta, thoge karaniyahuththa." and continued to beat him using foul language.” NeitherDaniel nor Dayananda nor Nandana Perera make reference toRathana being kicked or of his head being banged against a wall.And whereas Rathana says he was disrobed by the third respondent,Daniel, Dayananda and Nandana Perera say they heard the thirdrespondent ordering someone to remove the robe, adding at thattime a statement relating to Rathana’s responsibility for getting theothers into difficulties. However, according to Rathana, thatstatements came after the Karaniya-metta-sutra episode.
Ranawake (154/92, 4.5) has yet another version. He does not sayhe saw him doing so but that he “heard” the third respondent"beating Rev. Rathana saying “sivura galopiya huththige putha." Rev.Rathana started chanting the (sic.) “Karaniya metta Sutra” and theOIC said “Karaniyametta, thoge karaniya huththa." I heard peoplebeing beaten up and cries of pain and the voices the OIC and SIPiyarathana using bad language for about 1 hour…" Was Rathana
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disrobed by the third respondent, or ordered to be disrobed by athird party or ordered to disrobe himself? was he disrobed at all?
Wimalasuriya is one of the seven petitioners in SC Application155/92. The only affidavit filed with the petition is that ofWimalasuriya. In paragraph 4.4 of that affidavit he says: "I and theother petitioners heard the OIC abusing Rev. Rathana – “Ko oyahamuduruvo huththige putha? Oka thamay me kollo okkoma amaruvedemme." While he was beating Rev. Rathana, he started chanting theKaraniya metta suthra. The OIC said “Karaniya metta? thogekaraneeya huththa.” The third respondent was not looking forRathana; and so a question with regard to where Rathana was, ortrying to establish his identity seems hardly probable. Wimalasuriyadoes not say a word about the alleged disrobing of Rathana, norabout the precise nature of the assault alleged by Rathana.
Chandanaratne (153/92, 3.3) says he saw Seneviratne beingkicked by “him" and that “he" hit him with the stick the fourthrespondent was carrying and heard him saying certain things toSeneviratne. Were the references to “him" and “he" to the thirdrespondent? Chandanaratne makes no mention at all of what wassupposed to have happened to Rathana.
If the attempt of Athureliya Rathana, the petitioner in S.C.Application 149/92 to seek solace at a time of personal crisis by therecitation of the karaniya metta sutra was, in the manner described,met with coarsely expressed disapproval by the third respondent, Iam of the opinion that such conduct was extremely disappointing anddeplorable. Nevertheless it did not constitute a violation of Rathana'srights guaranteed by Article 11 of the Constitution. According to hisown affidavit, he was a well-seasoned man who by experience wasfortified against the sort of things he experienced so, as not to bedisturbed by them. Even if the things he complains of did take place,they could not have reached such levels of intensity so as to havebroken his moral resistance. Indeed, he is supposed to haveobserved with perspicacity, that even a cuff or two was not somethingof an unexpected or shocking nature. The evidence does not in myopinion establish that Rathana’s rights under Article 11 of theConstitution had been violated.
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Seneviratne’s CaseMalinda Seneviratne (146/92) in paragraph 6.2 of his affidavit saysthat he was put into Rathana’s cell “around 7.30". Rathana (149/92,4.1) confirms this. Nandana Perera (151/92, 3.3) says that dinner wasserved “around 10 p.m." and that “By this time Malinda had been putin the same cell as Rev. Rathana." However, Daniel (147/92, 3.5) andDayananda (148/92, 4.4) state that Seneviratne was put intoRathana’s cell after dinner. All the petitioners, including Seneviratneand Rathana, agree that dinner was served at 10 p.m.
It is sufficient to assume that at sometime before dinner wasserved – 10 p.m. – or not long thereafter, Seneviratne was placed inthe same cell as Rathana, although one begins to become cautiousabout Seneviratne’s ability to accurately recall the events of thatnight.. .
Caution begins to turn into doubt as I proceed to further considerSeneviratne’s affidavit. He says, ul was woken by the sound ofsomeone being beaten by someone who was shouting in filth. I heardhim say "umbalava ada mas karanava, Hama galavanawa huththigeputhage." I was terrified. Rev. Rathana said: “baya venna epa.gutiyak dekak kanna vey. Bayada?" I said “ne, upset ekak ne." Notone of the other petitioners refers to what Seneviratne says he heardat the time of waking. Ranawake says (154/93, 4.4) that one of thethreats uttered was ‘Thova ada mas karanava". However, it appearsfrom Ranawake’s affidavit that remark was made at about dinner time,while he was eating his meal. Later 154/92, (444.5), after the allegedassault on Seneviratne and Rathana and others, the third and fourthrespondents were supposed to have abused the petitioners “forabout 1 hour". And after that the OIC went up to Ranawake’s cell witha stick and said: “mata den hathi, heta udeta thova mas karanawa."Nandana Perera (1511/92, 3.5) says the threat “Heta mas karanawa"was made. However, that was said according to Nandana Pereraafter the third respondent had inquired how Seneviratne had come tobe put into the cell occupied by Rathana. That questioning,according to Seneviratne, was after he had conversed with Rathanasoon after waking up.
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After referring to his conversation with Rathana, Seneviratne statesas follows: “About 10 minutes later the OIC of the Police Station,Mr. Karunatillake, came near the cell and said: "Kawda methannatadennek damme, gannawa moova (that's me) eliyata." I was asked tocome out and he assaulted me beating me with his fists (I got blowson my face, back and upper arms). He was smelling of alcohol (sic.).While he was hitting me he was shouting in filth: “Ombalava maranaeka sulu deyak yako. Kariyo ayeth patangannada hadanawa veda?1'Finally, he kicked me (?)" (sic.) “and instructed one of the policemento tie my wrists and beat me on against (sic.) the wall of the room."Seneviratne then gives his version of the alleged assault on Rathanaand says: “After that he hit Paranavithana with the stick that SIPiyarathana was carrying and he came up to me and said "Thoemarican karaya neda. Api dannawa tho emarikavata giye aykiyala ". He kicked me again and hit me on my fingers with the stick(it was about 4 feet long and slightly thicker than a broom stick),handed to him by SI Piyarathana."
Rathana (149/92, 4.1) says the OIC said: “Kawda methenatadennek damme, Moo kawda? “He then took out Malinda and beathim.'' None of the other things mentioned by Seneviratne are referredto by Rathana, his cell-mate.
Daniel (147/92., 3.5) however says that when the OIC came to thecell he hit Paranavithana on the face before dealing with Rathanaand Seneviratne and not afterwards as Seneviratne recalls.Moreover, Daniel (147/92, 3.5) and Nandana Perera (151/92, 3.4) saythat the third respondent, seeing Seneviratne, asked "Me mokada?";to which someone replied “Oya ara ingreesi guruwaraya". It was thenthat the OIC was supposed to have asked who put them together.Dayananda (148/92, 4.4) supports the version of Daniel andNandana Perera.
According to Daniel, Dayananda and Nandana Perera, the OICsaid "emarican karayava gannava eliyata”, and not "moova gannavaeliyata", as Seneviratne states. Neither Daniel nor Dayananda referto the threats which Seneviratne says were made when he was beingassaulted.
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The alleged second assault on Malinda Seneviratne is referred toin an identically worded paragraph in the affidavits of Daniel (147/92,3.6) and Dayananda (148/92, 4.5). The first sentence of those twoparagraphs are as follows; "He next came up to Malinda again,kicked him saying, "Emarican karaya, api dannava tho emericavatagiye ay kiyala" and hit him with the stick that Piyarathna wascarrying."
Chandanaratne (153/92, 3.3) says nothing else aboutSeneviratne's case except as follows; “I saw him come up to Malindaand kick him saying “Emarican karaya, api dannawa thoemaricavata, giye ay kiyala" and hit him with the stick thatPiyarathana was carrying."
Ranawake (154/92, 4.5) has a unique version. He says “I heardhim say; “thoda emaricaven aave?” and beating Malinda".
Wimalasuriya (155/92, 4.4) has merely this to say; “I and the otherpetitioners saw while the others heard Malinda and Sani Dayanandabeing beaten".
The evidence relating to Seneviratne’s case has too manyinconsistencies to make it probable, In any event, even assuming thathe may have received a blow or two, it was probably not somethingthat so troubled or distressed him as to cause discomposure. WhenRathana told him that a blow or two might be expected and inquiredwhether he was afraid, Seneviratne replied “ne upset ekak ne".Seneviratne has failed to establish that his rights under Article 11 ofthe Constitution have been violated.
Chandanaratne’s CaseChandanaratne (153/92, 3.3) states that their hands were notuntied to enable the petitioners to eat. He kept his head on his kneesand tried to sleep while he was on the stairs. Around 2 p.m. he was"awaken by the sound of someone shouting in pain." After relating hisversion of the alleged assaults on Seneviratne, Dayananda and “apriest", he says that “all of a sudden the OIC kicked me on my head
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several times saying: "mokoda yako katha karanne?” When he waswith his head on his knees “without looking back or saying a word."He says he was in a state of “complete shock", and “extremely downhearted". He says "his head was full of all kinds of fearful thoughts"remembering films I had seen of people being beaten" and felt his“body was burning".
After some time (Chandanaratne says 3.4) the OIC came up to himand said “Moova lihagena varella, oka eththa kiyanawa”. He was thentaken upstairs where the third respondent made him sit down, benthis neck and started beating him. He then took the stick from thefourth respondent and hit him on his knees while kicking his ribs.After some time he stopped hitting him, threatened to break his skullin two, asked him about the meeting in the temple and hisoccupation, "lectured” him “at length" about the JVP, ordered him tobe re-chained and said: “Thopita hariyata gehuve ne. Thava davasanoovak innavane, eththa nokivoth thopi serama ivaray."
Bandara (152/92, 4.4) does not mention the alleged kicks fortalking. However he says “Chandana" was questioned about hisfamily, after which the OIC “kicked and hit Chandana and hammeredhis head many times again (sic) the wooded (sic) hand rail of thestaircase.” After referring to other incidents, Bandara says“Chandana who had been beaten earlier also was brought up againand beaten again by the OIC.”
Dayananda (148/92, 4.5) and Daniel (147/92, 3.6) each make asingle reference in identical terms to Chandanaratne: “I heard himbeating Chandana again"
Seneviratne (146/92, 6.2) says he heard the third respondentasking that “Chandana be freed. He was taken up and assaulted forabout 20 minutes",
Bandara and Seneviratne seem to exaggerate Chandanaratne’sown story. Chandanaratne does not complain of his head beingstruck on the rail nor does he complain of an assault lasting twentyminutes.
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In my view of the evidence, I have serious doubts about the truthof Chandanaratne's allegation and I hold that Chandanaratne hasfailed to establish that his rights guaranteed by Article 11 of theConstitution have been violated.
Declaration in respect of Article 11For the reasons given, I declare that none of the respondents,including the third and fourth respondents, have violated thefundamental rights of any of the petitioners guaranteed by Article 11of the Constitution.
Infringements of Article 14(1) (a)When the matter was supported on 11.5.92 for leave to proceed,learned Counsel for the petitioner moved to amend the petition byadding the following additional averment; “The respondents above-named by their action as aforesaid have violated the petitioner’sfreedom of speech and expression guaranteed by Articles 14(1) (a)of the Constitution." Learned Counsel further moved to amend theprayer “(b)" by adding a reference to Article 14(1) (a).
The amendments were allowed and leave to proceed was grantedin respect of the alleged violations of Articles 11, 13(1), 13(2). 14(1)(a) and 14(1) (c) of the Constitution. Duly amended petitions withnotice to the Attorney-General were filed on 18th May 1992.
According to the petitioners, when they were about to resumetheir discussions after lunch, a police party stifled any furtherproceedings by arresting and incarcerating them. According to thethird and fourth respondents, the petitioners had resumed theirdiscussions, but after listening to them for a time, further discussionwas prevented by arresting and detaining them.
In either case, the petitioners’, claim that their rights under Article14(1) (a) of the Constitution were thereby violated: Article 14(1) (a)provides that “every citizen is entitled to the freedom of speech andexpression including publication."
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The solicitude shown by this Court for the freedom of speech andexpression in such decisions as Ratnasara Thero v. Udugampola<l53’;Joseph Perera v. Attorney-General,35) Deniyakumburugedera SriyaniLakshmi Ekanayake v. Inspector Herath and Others m: Abeyratne v.Edison Gunatilleke and Others ('541; Dayasena Amaratunga v. P.Sirimal and Others (35l; and Shantha Wijeratne v. Vijitha Perera andOthers "7’. should be sufficient assurance of its importance. However,one notes with genuine dismay that transgressions continue.
Yet this hardly comes as a surprise. When one considers thestruggle of the U. S. Supreme Court from the now famous “footnote 4“of the opinion of Chief Justice Stone in United States v. CaroleneProducts Co.11551 to Brandenberg v. Ohidm} and Hess v. Indiana<<571 ininterpreting the First Amendment, so as to be able to evolveguidelines that, on the one hand protect free speech, and on theother, the safety of the State, one begins to have some sympathy forlaw enforcement officers “on the beat” who may, given the curriculain schools and other institutions, have at best a vague ideal of thevalues of freedom of expression and little else to guide them.
It is not easy to understand the system of freedom of expressionas envisioned by the language of the Constitution. As ProfessorThomas Emerson observed (Toward a General Theory of the FirstAmendment, 1963 72 Yale LJ 877, 894): “The theory of freedom ofexpression is a sophisticated and even complex one. It does notcome naturally to the ordinary citizen but needs to be learned. It mustbe restated and reiterated not only for each generation, but for eachnew situation.”
I appreciate the dangers of encapsulation. Yet l shall endeavour tocall attention to some matters of importance in understanding Article14(1) (a) and the cognate provisions of the Constitution that arerelevant to the circumstances of the matters before me. I shallendeavour to focus attention on the three intrinsic bases of the rightto freedom of expression, namely, the desire to discover the truth, theneed of every man to achieve personal fulfillment, and the demandsof a democratic regime.
The very first Article of the Constitution proclaims Sri Lanka to be ademocratic State. "Democratic" is derived from the Greek words
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demos meaning “the people" and kralos meaning “rule”.‘Democracy is the rule of the people. Although at a time when theGreek States had small populations and limited franchise it waspossible for the people to directly decide every important issue,today, with large populations, and universal suffrage, in an infinitelymore complex society, the people cannot do so. For practicalreasons, the people must act in a modern democracy through theirelected representatives. Although, as Article 3 of the Constitutionsays, Sovereignty is with the people, the right to make politicaldecisions is not exercised directly by the whole body of citizens butthrough representatives chosen by and answerable to them.
And so Article 4 of our Constitution provides, among other things,that the legislative power of the people shall be exercised byParliament consisting of elected representatives of the people; thatthe executive power of the people shall be exercised by thePresident elected by the people, and that the judicial power of thepeople shall be exercised by Parliament, which consists of electedrepresentatives of the people, through courts and tribunals andinstitutions.
Although the system of self-Government thus envisaged is one inwhich the representatives of the majority of electors are entrustedwith the powers of the State, such powers are exercised within aframework of constitutional restraints designed to guarantee allcitizens the enjoyment of certain fundamental rights which are set outin Chapter 11 of the Constitution. These rights, including the right offree speech, are important both as values unto themselves,benefitting the individual, and as having an instrumental value,bringing aggregate benefits to society.
Freedom of thought and expression is an indispensable conditionif Sri Lanka is to be more than a nominally representative democracy.Speech concerning public affairs is more than self-expression: it isthe essence of self-government. To make an informed and educateddecision in choosing his elected representative, in deciding to votefor one group of persons rather than another, a voter mustnecessarily have the opportunity of being informed and educatedwith regard to proposed policies. The election of representatives isbased on an appeal to reason and not to the emotions. Party symbols
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and faces on posters Tnerely stand for ideas. That sometimes is notthe case in practice; but a system of government based onrepresentative democracy assumes it to be so. There can be noappeal to reason without the freedom to express ideas andpropagate them and discuss them with a view to forming privateopinions and mobilizing such ideas to be accepted in thecompetition for the right to represent the people. How else can avoter be convinced of the validity and benefit of what a candidatesays he stands for and promises to espouse? {As to the way in whichpublic opinion is mobilized though party politics, see theobservations of Sharvananda C.J., in Gooneratne v. De Silva and theAG.Im).
He must be able to freely and openly, without previous restraint orfear of harassment, discuss such matters and obtain clarification soas to be able to form his own judgment on matters affecting his life.
Moreover, it is only by discussion that proposals adduced can bemodified so that the political, social and economic measures desiredby the voter can be brought about. The right of free speechenhances the potential of individual contribution to social welfare,thus enlarging the prospects for individual self-fulfilment.
And in between elections it is only through free debate andexchange of ideas that the elected majority can be made to remainresponsive to and reflect the will of the people. In respect of a few,exceptional matters the Constitution insists that the people shalldirectly decide the matter at a Referendum. However there are manyother matters of public concern which arise in between electionswhich cannot be decided by universal suffrage but are neverthelessmatters on which the individual citizen must communicate his ideas ifrepresentative democracy is to work. The election of representativesdoes not imply that such representatives may always do as they will.Members of the public must be free to influence intelligently thedecisions of those persons for the time being empowered to act forthem which may affect themselves. Every legitimate interest of thepeople or a section of them should have the opportunity of beingmade known and felt in the political process. Freedom of speechensures that minority opinions are heard and not smothered by a
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tyrannizing majority. It is the only way of enabling the majority inpower to have an educated sympathy for the rights and aspirations ofother members of the community. The health of a society of self-government is nurtured by the contributions of individuals to itsfunctioning. It is the way that makes possible the valuable anddistinctive contribution of a minority group to the ideas and beliefs ofour society.
Moreover, in a representative democracy there must be acontinuing public interest in the workings of government whichshould be open to scrutiny and criticism. Indeed, a central value ofthe free press, free speech, and freedom of association andassembly lies in checking the abuse of power by those in authority.
The unfettered interchange of ideas from diverse and antagonisticsources, however unorthodox or controversial, however shocking oroffensive or disturbing they may be to the elected representatives ofthe people or any sector of the population, however hateful to theprevailing climate of opinion, even ideas which at the time a vastmajority of the people and their elected representatives believe to befalse and fraught with evil consequences, must be protected andmust not be abridged if the truth is to prevail. Freedom of speechdoes not mean the right to express only generally accepted, but alsodangerous, aggravating and deviant ideas which the communityhated and from which it recoiled. As Justice Jackson of the UnitedStates Supreme Court once observed: “Freedom to differ is notlimited to things that do not matter much. That would be a mereshadow of freedom. The test of its substance is the right to differ as tothings that touch the heart of the existing order." Wide open androbust dissemination of ideas and counter thought are essential tothe success of intelligent self-government.
No person or group of persons, not even majorities, can claim tohave a monopoly of good ideas. Many a strange and singular ideahas in time, through argument and debate, had the power to get itselfaccepted as the truth. Most people once believed Galileo to be adangerous food and a large number of people with fanatical zealbehind the iron curtain once founded their systems of Government onthe philosophy of Marx and Lenin until Glasnost opened the way to
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the free flow of information and ideas and the collapse of a repressivesystem. There is a vital societal interest in preserving an uninhibitedmarket place of ideas in which truth will ultimately prevail. (Red LionBroadcasting Co. v. FCC)(,59). An assumption underlying Article 14(1)(a) is that speech can rebut speech, propaganda will answerpropaganda and that free debate of ideas will result in the wisestpolicies at least for the time being.
Indeed, the initial justification for a system of free speech was itsvalue in preventing human error through ignorance. In 1644, JohnMilton, during his battle with the English censorship laws, in his tract,Aeropaqitica, A speech for the Liberty of Unlicensed Printing tothe Parliament of England, said:
“Though all the winds of doctrine were let loose to play uponthe earth, so truth be in the field, we do injuriously, by licensingand prohibiting, to misdoubt her strength. Let her and falsehoodgrapple; whoever knew truth put to the worse in a free and openencounter?"
In 1859, Hohn Stuart Mill in his essay On Liberty expandedMilton's arguments by his recognition of the public good – the publicenlightenment – which results from the free exchange of ideas. He
said;
“First, if any opinion is compelled to silence, that opinion foraught we can certainly know, to be true. To deny this is toassume our own infallibility. Secondly, though this silencedopinion be in error, it may, and very commonly does, contain aportion of the truth; and since the generally prevailing opinionon any subject is rarely or never the whole truth, it is only by thecollision of adverse opinions that the remainder of the truth hadany chance being supplied. Thirdly, even if the received opinionbe not only true but the whole truth; unless it is suffered to be,and actually is, vigorously and earnestly contested, it will, bymost of those who receive it, be held in the manner of aprejudice, with little comprehension of feeling of its rationalgrounds. And not only this, but fourthly, the meaning of thedoctrine itself will be in danger of being lost or enfeebled …"
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Among the earliest and best known judicial articulations of thevalue of free speech in promoting the search for knowledge and truthis that of Justice Holmes in his dissenting opinion in' Abrams v.United States {'K He said:
Persecution for the expression of opinions seems to meperfectly logical. If you have no doubt Of your premises or yourpower and want a result with all your heart you naturally expressyour wishes in law and sweep away all opposition. To allopposition by speech seems to indicate that you think thespeech impotent, as when a man says that he has squared thecircle, or that you do not care wholeheartedly for the result, orthat you doubt either your power or your premises. But whenmen have realized that time has upset many fighting faiths, theymay come to believe even more than they believe the veryfoundations of their conduct that the ultimate good desired isbetter reached by free trade in ideas – that the best test of truthis the power of the thought to get itself accepted in thecompetition of the market, and that truth is the only ground uponwhich their wishes safely can be carried out. That at any rate isthe theory of our Constitution. It is an experiment, as all life is anexperiment. Every year if not every day we have to wager oursalvation upon some prophecy based upon imperfectknowledge. While that experiment is part of our system I thinkthat we should be eternally vigilant against attempts to checkthe expression of opinions that we loathe and believe to befraught with death, unless they so imminently threatenimmediate interference with the lawful and pressing purposes ofthe law that an immediate check is required to save thecountry. [Only] the emergency that makes it immediatelydangerous to leave the correction of evil counsels to timewarrants making any exception to the sweeping command,congress shall make no law abridging the freedom of speech.Of course I am speaking only of expressions of opinion andexhortations, which were all that were uttered [here].
An equally well known judicial articulation of the values of freespeech was the opinion of Justice Brandeis, (with Justice Holmesconcurring) in Whitney v. California 1391. Although freedom of speech
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is recognized as one of the pre-eminent rights of democratic theoryand the touchstone of individual liberty, the framers of the AmericanConstitution (1787) felt no need to include in the original document aprovision upholding a general theory of freedom of speech. It was in1791 by the First Amendment – the progenitor of Article 14(1) (a) (b)and (c) of our own Constitution – that provision was made that“Congress shall make no law … abridging the freedom of speech, orof the press, or the right of the people peaceably to assemble …”Justice Brandeis, said:
Those who won our independence believed that the final endof the State was to make men free to develop their faculties; andthat in its government the deliberative forces should prevail overthe arbitrary. They valued liberty both as an end and as ameans. They believed liberty to be the secret of happiness andcourage to be the secret of liberty. They believed that freedomto think as you wish and to speak as you think are meansindispensable to the discovery and spread of political truth; thatwithout free speech and assembly discussion would be futile;that with them, discussion affords ordinarily adequate protectionagainst the dissemination of noxious doctrine; that the greatestmenace to freedom is an inert people; that public discussion isa political duty; and that this should be a fundamental principleof the American Government. They recognized the risks towhich all human institutions are subject. But they knew thatorder cannot be secured merely through fear of punishment forits infraction; that it is hazardous to discourage thought, hopeand imagination; that fear breeds repression; that repressionbreeds h^te; that hate menaces stable government; that thepath of safety lies in the opportunity to discuss freely supposedgrievances and proposed remedies; and that the fitting remedyfor evil counsels is good ones. Believing in the power of reasonas applied through public discussion, they eschewed silencecoerced by law – the argument of force in its worst form.Recognizing the occasional tyrannies of governing majorities,they amended the Constitution so that free speech andassembly should be guaranteed.
One may think what one may wish, but no intelligent person in hissenses articulates everything he thinks. As Stanford J. observed in
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Gitlow v. New York™. "It is a fundamental principle, long established,that freedom of speech and the press which is secured by theConstitution, does not confer an absolute right to speak or publishwithout responsibility, whatever one may choose.” And those whocannot restrain themselves are in many ways prevented by law fromspeaking as they think, for the societal value of speech must onoccasion be subordinate to other values and considerations. AsProfessor A. Meiklejohn (Free Speech and Its Relation to SelfGovernment) once observed, the constitutional provision relating tofree speech “is not the guardian of unregulated talkativeness." Lawsrestraining speech are commonplace. The limitations imposed by thetaw of defamation are well known. Laws against perjury, extortion andfraud prohibit speech. So does much of the law of contracts. Indeed,no one contends that citizens are free to say anything, anywhere atany time. As Holmes, J. observed, in Schenck v. United States1,8,1, adecision cited with approval in Mallawarachchi v. Seneviratne ,40).“The most stringent protection of free speech would not protect aman in falsely shouting fire in a theater and causing panic.” Certainforms of speech, or speech in certain contexts, or laws or regulationsnot intended to control the content of speech but incidentally limitingits unfettered exercise, have often been considered outside thescope of constitutional protection. As Justice Brandeis observed inWhitney v. California , a decision followed in Ekanayake v. HerathBanda(77); and in Amaratunga v. Sirimal™:
“The right of free speech, the right to teach and the right ofassembly are of course, fundamental rights … But, although therights of free speech and assembly are fundamental, they arenot in their nature absolute. Their exercise is subject torestriction, if the particular restriction proposed is required inorder to protect the state from destruction or from serious injury,political, economic or moral.”
In Dennis v. United States<58t Chief Justice Vinson said:
“Whatever theoretical merit there may be to the argument thatthere is a “right" to rebellion against dictatorial governments iswithout force where the existing structure of the governmentprovides for peaceful and orderly change. We reject any
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principle of governmental helplessness in the face ofpreparation for revolution, which principle, carried to its logicalconclusion, must lead to anarchy. No one could conceive that itis not within the power of Congress to prohibit acts intended tooverthrow the Government by force and violence … Overthrowof the Government by force and violence is certainly asubstantial enough interest for the Government to limit speech.Indeed, this is the ultimate value of any society, for if a societycannot protect its very structure from armed internal attack, itmust follow that no subordinate value can be protected."
It has never been doubted that when the Government is in thethroes of a struggle for the very existence of the State, the security ofthe community may be protected. (Per Holmes J. in Abrams v. U.S.A.(supra); Whitney v. California (supra), Gitlow v. New York (supra).Near v. Minnesota"**.
Article 15 of the Constitution makes it very clear that the rights offree speech, (14) (1) (a), assembly (14) (1) (b) and association (14)
(c) are not absolute. Article 15 provides, inter alia, as follows:
(D…
The exercise and operation of the fundamental rightdeclared and recognized by Article 14(1) (a) shall be subject tosuch restrictions as may be prescribed by law in the interests ofracial and religious harmony or in relation to parliamentaryprivilege, contempt of court, defamation or incitement to anoffence.
The exercise and operation of the fundamental rightdeclared and recognized by Article 14(1) (b) shall be subject tosuch restrictions as may be prescribed by law in the interests ofracial and religious harmony or national economy.
The exercise and operation of the fundamental rightdeclared and recognized by Article 14(1) (c) shall be subject tosuch restrictions as may be prescribed by law in the interests ofracial and religious harmony or national economy.
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…
…
The exercise and operation of all the fundamental rightsdeclared and recognized by Articles 12, 13(1), 13(2) and 14shall be subject to such restrictions as may be prescribed bylaw in the interests of national security, public order and theprotection of public health or morality, or for the purpose ofsecuring the recognition and respect for the rights andfreedoms of others, or of meeting the just requirements of thegeneral welfare of a democratic society. For the purposes of thisparagraph “law" includes regulations made under the law forthe time being relating to public security.
The exercise and operation of the fundamental rightsdeclared and recognized by Article 12(1), 13 and 14 shall, intheir application to members of the armed Forces, Police Forceand other forces charged with the maintenance of public order,be subject to such restrictions as may be prescribed by law inthe interests of the proper discharge of their duties and themaintenance of discipline among them.
After balancing interests, albeit at a very general, wholesale level,the makers of the Constitution have in Article 15 made a threshold,exclusionary categorization, inter alia, of the varieties of speech,assembly and association that are not protected absolutely but theexercise and operation of which may be limited by law. Whererestrictions in respect of those classes are imposed by an Act ofParliament we are precluded from inquiring into or pronouncingupon or in any manner calling in question the validity of such an Acton any ground whatsoever (Article 80(3) of the Constitution). Article15(7) of the Constitution provides that "law” includes regulationsmade under law for the time being relating to public security. While itis a matter for the President and not Courts of Law to decide whetherthere is a state of Emergency and to decide that regulations may benecessary or expedient to deal with such a situation – See Yasapalav, Wickramasinghe <'S31 ; Abeywardene v. Perera ,,M), yet, in certaincircumstances, the validity of the regulations may be subject to
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judicial scrutiny. {See Siriwardene v. Liyanage<7n; Joseph Perera v. A.G.l35>. See also Wickremabandu v. Herath<26>).
In addition to restrictions prescribed by law in respect of thecategories referred to by the Constitution, there may be utterancesthat are no essential part of any exposure of ideas and are of suchslight social value as a step in truth that any benefit that may bederived from them is outweighed by the social interest in order andmorality. (Chaplinsky v. New Hampshire'™'). Thus it has been said thatresort to rude epithets or personal abuse is not in any proper sensecommunication of information or opinion safeguarded by theConstitution. (Cantwell v. Connecticut™'). What value is to be attachedto a speech claiming protection and whether the right is outweighedby competing state interest and societal concerns is a matter for thedetermination of the Court having regard to the circumstances of eachcase, for speech interacts with too many values, in too manycomplicated ways to be subject to a single formula.
The respondents did not deny that a necessary consequence ofthe arrests and detentions was a termination for the time being of theexpressive and communicative activities of the petitioners and aprobable chilling of such future activities. However, they denied theaverments of the petitioners that there was a contravention of Article14(1) (a)
The respondents did not seek to justify the alleged violations ofArticle 14(1) (a) by reference to any law made in accordance withArticle 15 or otherwise proscribing the use of language designed toprevent any substantive evil which expressly required, empowered orenabled them to extinguish or in any way temporarily limit thepetitioners’ rights under Article 14(1) (a) of the Constitution. Nor arethese appeals from convictions for offences committed under anylaw. In these proceedings Regulation 23(a) of 1989 was the principalprovision relied upon by the respondents as a justification. ThatRegulation makes it an offence to conspire to overthrow theGovernment of Sri Lanka otherwise than by lawful means. Attemptingor preparing to overthrow or doing any act or conspiracy to do orattempting or preparing to do any act “calculated to overthrow" orwith the "object or intention of overthrowing", or as a "means of
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overthrowing" the Government otherwise than by lawful means arereached by the provisions of the Regulation. That provision does notcontrol the content of speech but incidentally limits its exercise incertain circumstances.
The respondents arrested the petitioners and prevented them fromproceeding with their discussions. Although they were not by expressstatutory provision empowered to prohibit the use of speechadvocating the overthrow of the Government, yet if there wereutterances directed to inciting or producing imminent action tooverthrow the Government otherwise than by lawful means and suchutterances were likely to incite or produce such action, therespondents were entitled to terminate the discussion. (Cf.Brandenberg v. Ohio0*1; Hess v. Indians|157)).
As we have seen in discussing the question of arrest in relation tothe violation of Article 13(1), there was no action to overthrow theGovernment by unlawful means being advocated at all. Thepetitioners had no purpose of helping to make the RatawesiPeramuna an instrument of terrorism or violence which would menacethe peace and welfare of the State. They were not engaged in thedevelopment of an apparatus designed and dedicated to overthrowthe Government by unlawful means. The petitioners were consideringmatters of personal concern and were anxious to mobilize publicopinion to accept their views so that they might replace those inpower with other representatives who may give effect to their views.They were critical of what they regarded as a "sorry scheme ofthings" and, like Omar Khayyam, wanted to remould things nearer totheir "heart’s desire". This was, as we have seen in considering thequestion of the violation of Article 13(1) of the Constitution, perfectlylegitimate, even with regard to agitations for changes of theConstitution which permitted a supposed unsatisfactory state ofaffairs. (See especially the reference to the comments of Jefferson).Moreover, as we have seen, such activities, for several reasons in ademocratic society such as our own, in addition to the “safety-valve"aspect referred to earlier, must be regarded as not only permissibleand highly desirable, but also as necessary.
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DECLARATION AND ORDER IN RESPECT OF ARTICLE 14(1) (A)For the reasons explained I declare that the fundamental right offreedom of speech and expression guaranteed by Article 14(1) (a) ofthe Constitution were violated by the respondents in respect ofMalinda Channa Pieris the applicant in S.C. Application 146/92; M. D.Daniel the applicant in S.C. Application 147/92; Singappuli HewageDayananda, the applicant in S.C. Application 148/92; AthureliyeRathana (Ranjith), the applicant in S.C. Application 149/92;Kuruwitage Nandana Perera, applicant in S.C. Application 151/92;Jayasinghe Mudiyanselage Janaka Priyantha Bandara, the applicantin S.C. Application 152/92; Pallimulla Hewa Geeganage PradeepChandanaratne, the applicant in S.C. Application 153/92; RanawakeArachchige Patali Champika Ranawake, the applicant in S.C.Application 154/92 and the following applicants in S.C. Application155/92, namely, Avalikara Galappathige Muditha MalikaWimalasuriya, Gileemalage Janaka Priyantha Dayaratne, KarunaratneParanavithana, Weerasekera Mudalige Anura Weerasekera, Rev.Kalupahana Piyarathana, Rev. Ambalanthota Premarathana and Rev.Kuthulgala Upali.
I make order that each and every one of the persons named in thepreceding paragraph – Wimalasara, the applicant in SC Application150/92 is not included – shall be severally paid a sum of Rs. 5000 bythe State for the violation of the right of free speech guaranteed byArticle 14(1) of the Constitution.
VIOLATION OF ARTICLE 14(1) (C)The petitioners state that by arresting and detaining them, theirrights guaranteed by Article 14(1) (c) of the Constitution wereviolated. Article 14(1) (c) provides that "Every citizen is entitled to thefreedom of association."
Free speech is so linked with other rights guaranteed by theConstitution that one might say with Justice Cardozo that it is “thematrix, the indispensable condition of nearly every other form offreedom." (Palko v. Connecticuttm). And freedom of association isequally linked with other freedoms including freedom of thought,
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conscience and religion, including the freedom to have or to adopt areligion or belief of his choice (Article 10), the right not to bediscriminated against on the grounds of race, religion, language,caste, sex, political opinion, place of birth (Article 12(2) and the rightof free speech and expression (14) (1) (a), the freedom of peacefulassembly (14) (1) (b), the freedom to form and join a trade union (14)(1) (d), the freedom to manifest his religion or belief in worship,observance, practice and teaching (14) (1) (e), the freedom to enjoyand promote his own culture and to use his own language (14) (1) (f)and the freedom to engage by himself or in association with others inany lawful occupation, profession trade, business or enterprise.Group association does advance the enjoyment of certain rights.
For instance, effective advocacy of both public and private pointsof view, particularly controversial ones, is undeniably enhanced bygroup association. Freedom of expression includes not only theindividual’s right to speak, but also his right to advocate, and his rightto join with his fellows in an effort to make that advocacy effective.(See NAACP v. Alabama per Haarlan J. in NAACP v. Button,Hai).Freedom of speech, freedom of assembly and freedom of associationare cognate rights. However the right to freedom of association is ageneral, independent constitutional right recognized specifically byArticle 14(1) (c), and not merely one that is keyed to the exercise ofthe right of free speech.
Freedom of association is protected in two distinct senses: (a)freedom of expressive association and (b) freedom of intimateassociation, {Roberts v. United States Jaycees <,7°'). There is noindication in the petitions as to how Article 14(1) (c) was violated.
In the Roberts case(,70) Brennan J. pointed out that in one line ofdecisions the Court had concluded that “choices to enter into andmaintain certain intimate human relationships in safeguarding theindividual freedom that is central to our constitutional scheme,”should be protected. This type of freedom of association isconcerned with the formation and preservation of certain highlypersonal relationships connected with family relationships andpersonal decisions such as the freedom to choose one’s spouse. Thefreedom of intimate association is deemed important enough to be
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constitutionally protected because certain kinds of personal bondsplay a critical role in the culture and traditions of a nation by“cultivating and transmitting shared ideals and beliefs; they therebyfoster diversity and act as critical buffers between the individual andthe power of the State. Moreover, the constitutional shelter affordedsuch relationships reflects the realization that individuals draw muchof their emotional enrichment from close ties with others. Protectingthese relationships from unwarranted state interference thereforesafeguards the ability independently to define one's identity that iscentral to any concept of liberty. The personal affiliations thatexemplify these considerations [are] distinguished by such attributesas relative smallness, a high degree of selectivity in decisions tobegin and maintain the affiliation, and seclusion from others in criticalaspects of the relationship,”
The Ratawesi Peramuna, lacking these qualities, seems remotefrom the concerns giving rise to this constitutional protection. It was,as the petitioners say, a "broad front" comprising persons from allsections of the community. As Rathana (SC Application 149/92)states in paragraph 2.5 of his affidavit “we tried to bring together thealternative forces in the opposition – intellectuals, students, artists,youth, workers, farmers etc." There was neither selectivity norseclusion. There is no evidence of the number of members., butBandara states in his affidavit in Application 152/92 paragraph 2.1that he "along with a large number of students" strongly supportedit." I therefore hold that the petitioners' freedom of association in thesense of intimate association was not violated.
The right of association is not only guaranteed by the Constitutionto protect the freedom of intimate association but also as anindispensable means of preserving other individual libertiesconcerned with a wide variety of political, social, economic,educational, religious and cultural ends. The associational rightsconnected with certain matters are expressly referred to in theConstitution. The right to form and join a Trade Union is referred to inArticle 14(d). The freedom in association with others to manifest hisreligion or belief is referred to in Article 14(1) (e). The freedom toenjoy and promote his own culture and to use his own language inassociation with others is referred to in Article 14(1) (f). And the
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freedom so engage in association with others in any lawfuloccupation, profession, trade, business or enterprise is referred to inArticle 14(1) (g). However no specific mention is made of thefreedom of expressive association. What the Constitution does is tostate in Article 14(1) (a) that every citizen is entitled to the freedom ofspeech and expression, including publication, and then recognizethe indispensable means of preserving individual libertiesguaranteed by the Constitution, including the fundamental right of thefreedom of speech and expression, by declaring in Article 14(1) (b)the fundamental right of freedom of peaceful assembly; and in Article14(1) (c), the fundamental right of freedom of association. In essencethe petitioners' complaint in the matters before us is that their right ofassociation for the advancement of certain beliefs and ideas wasviolated by their arrest and detention.
There was in the matters before us no direct call to desist fromexpressive activities as there was in ’Mudiyanselage TillekeratneBandara Ekanayake v. Edison Gunatiiake and the Attorney-General"'”. The fact that the respondents took no direct action torestrict the right of the petitioners and members of the RatawesiPeramuna to associate freely in orderly group activity however, doesnot end the matter. Freedoms such as these are protected not onlyagainst obvious and heavy-handed frontal attack, but also from beingsmothered or stifled or chilled by more subtle interference. We needto consider the probable deterrent effect of the arrest and detentioneven though such effect may have been unintended. In delivering theopinion of the Court in NAACP v. Alabama, (supra) Justice Harlansaid:
“It is beyond debate that freedom to engage in associationfor the advancement of beliefs and ideas is an inseparableaspect of the ■liberty’ assured by the Due Process clause of the14th Amendment, which embraces freedom of speech. Ofcourse, it is immaterial whether the beliefs sought to beadvanced by association pertain to political, economic,religious or cultural matters, and state action which may havethe effect of curtailing the freedom to associate is subject to theclosest scrutiny. The fact that Alabama [has] taken no directaction [to] restrict the right of petitioner's members to associate
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freely does not end inquiry into the effect of the productionorder, [1] in the domain of these indispensable liberties, whetherof speech, press or association, the decisions of this Courtrecognize that abridgement of such rights, even thoughunintended, may inevitably follow from varied forms ofgovernmental [action]."
In the matters before us, the arrest and detention of the petitionersmust be regarded as entailing the likelihood of a restraint upon theexercise by them of their right to freedom of association in much thesame way as manifestations of hostility to their activities by the armedpersons who stole their posters at Matara. The arrest and detentionwas in my opinion likely to adversely affect the ability of thepetitioners to pursue their collective effort to foster beliefs which theyadmittedly have the right to advocate, in that it may induce some ofthem to withdraw from the Peramuna and dissuade others fromjoining it because of fear of police action. It must also have certainlyhad a chilling effect on the expressive and associations activities ofthose who had the temerity to continue to be members of theRatawesi Peramuna.
The right to associate for expressive purposes, is not absolute.(See Article 15(4) and Article 15(7) quoted above). However, theRatawesi Peramuna was not an organization whose members oradherents were engaged in purposes prejudicial to national securityor the maintenance of public order or in other unlawful activities. ThePeramuna was not a proscribed organization. No justification existedfor the violation of the petitioners’ associational rights relating to theirexpressive activities.
DECLARATION AND ORDER IN RESPECT OF ARTICLE 14(1) (C)I therefore declare that the fundamental right of the freedom ofassociation guaranteed by Article 14(1) (c) of the Constitution wereviolated by the Third and Fourth respondents in respect of MalindaChanna Pieries, the applicant in SC Application 146/92; M. D.Daniel, the applicant in S.C. Application 147/92; Singapulli HewageDayananda, the applicant in S.C. Application 148/92; AthureliyageRathana (Ranjith), the applicant in S.C. Application 149/92;Kuruwitage Nandana Perera, the applicant in S.C, Application
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151/91; Jayasinghe Mudiyanselage Janaka Priyantha Bandara, theapplicant in S.C. Application 153/92; Ranawake Arachchilage PataliChampika Ranawake, the applicant in S.C. Application 154/92 andthe following applicants in S.C. Application 155/92, namely, AvalikaraGalappathige Muditha Mallika Wimalasuriya, Gileemalage JanakaPriyantha Dayaratne, Karunaratne Paranavithana, WeerasekeraMudalige Anura Weerasekera, Rev. Kalupahana Piyarathana, Rev.Ambalanthota Premarathana and Rev. Kuthulgala Upali.
I make order that each and every one of the persons named in thepreceding paragraph shall be severally paid a sum of Rs. 5000 bythe State for the violation of the right of freedom of associationguaranteed by Article 14(1) (c) of the Constitution.
WIMALASARA’S CASE IN RESPECT OF ARTICLES 14(1) (A)AND 14(1) (C)
According to paragraph 2.3 of Wimalasara’s affidavit dated 15thApril 1992, by the time he woke up in the morning on 27th February1992, the other petitioners “had already started the discussion.”Wimalasara says: “I went back to bed since I was still very ill." Whenthe Police arrived at 2 p.m. he was still asleep and “woken up andtaken by a man carrying a gun to the room where the others were.”
Wimalasara, in support of his affidavit dated 3rd November 1992made in response to the affidavits of the Third and Fourthrespondents, submitted the affidavit of Jayalin Silva dated 3rdNovember 1992 who came to the temple at about the time of thearrest to visit Wimalasara who was in ill-health. Jayalin Silva statesthat Wimalasara was fetched from the residential quarters of thepriests and taken to the place where the meeting was being held.
In paragraph 4 of his affidavit dated 3rd November 1992,Wimalasara states as follows: "I totally deny the police version thatofficers stood by the windows of the room, listened to ourconversation and took down notes. I state that this is a fabrication bythe police including the alleged conversation that took place in theroom. I specifically deny that we talked of overthrowing thegovernment.”
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Seneviratne (146/92, 5.3) expressly states that Wimalasara “didnot participate in the discussion.”
How was this man who says he was "very ill" and went to sleep,(other petitioners too state that Wimalasara was ill and asleep – seee g. Daniel, 147/92, 3.1; Dayananda 149/92, 3.6); Rathana (149/92,2.10), Nandana Perera (151/92, 2.6); Bandara (152/92, 3.4);Chandarathana (153/92, 2.5); Ranawake (154/92, 4.3); andWimalasuriya 155/92, 3.4) waking up only when the police arrestedhim at 2 p.m. and then taken to the meeting place where theresumption of the meeting was interrupted, able to deny that thepolice listened to “our conversation”? How did he know that? Whydid he say “I specifically deny that we talked of overthrowing theGovernment" instead of simply and truthfully saying that he did notknow what was going on?
What Wimalasara seems to have been earlier trying to point outwas this (See paragraph 2.2 of his affidavit dated 15th April 1992);He had come to know Rev. Piyarathana (petitioner No. 5 inapplication 155/92) and through him Rev. Rathana (petitioner inapplication 149/92), Daniel (petitioner in application 147/92) andChampika Ranawake (petitioner in application 154/92). Ranawakecame to the temple and asked for permission to have a discussion atthe temple. Since Piyarathana, Rathana, Daniel and Ranawake “werealso going to attend and", as he says, "since I was convinced thatthey were not subversives, I didn’t mind." Wimalasara, appears tohave been detached from the political activities of the otherpetitioners not only on the occasion of the arrest, but also generally.
Rev. Rathana in his affidavit (149/92 paragraph 2) says that heinformed Wimalasara of the proposed meeting, Rathana andRanawake (154/92 in paragraph 3.9) say: “He was only aware that wewere going to have a discussion on the following day. He knewnothing about the nature of the discussion. He is not a politicalactivist. We did not make much of this since some of us have beenfrequenting this temple and since it was noted for political meetings,being the temple of Rev. Pohaddaramulle Pemaloka who was killedby the JVP…"
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Significantly, Wimalasara alone makes no mention in this affidavitof previous knowledge of, or participation in, the activities of thePeramuna or of its so-called “crises.”
DECLARATION IN WIMALASARA’S APPLICATION IN RESPECTOF ARTICLES 14(1) (A) AND 14(1) (C)In the Circumstances I hold that Rev. Thalpitiya Wimalasara, theapplicant in S.C. Application 150/92 was in no way deprived by therespondents of his right of free speech guaranteed by Article 14(1)(a) of the Constitution. He did not participate in the discussion simplybecause he was as he says “very ill" and chose to go to sleep andnot because he was prevented by the respondents from speaking orlistening at the meeting.
Nor was he deprived by the respondents of his right of freedom ofassociation guaranteed by Article 14(1) (c). There was no suggestionof any violation of the right of intimate association. Nor was there anyassociation for expressive purposes. He was a friend of some of thepetitioners and did not, as he says “mind" them meeting at thetemple, but he was not a member of the Ratawesi Peramuna and, asRathana and Ranawake say, “he knew nothing about the nature of thediscussion.” Wimalasara did not in his petition or earlier affidavit filedin support of his petition claim to be united to the members of thePeramuna by any community of interest. He had in no way joinedthem or combined with them for any purpose nor was he connectedwith them in thought in the enterprise undertaken by the RatawesiPeramuna.
The fact that Wimalasara was not a participant at the meeting noraffiliated with the Peramuna were taken into account in orderingenhanced payments to be made to him for the violation of his rightsguaranteed by Articles 13(1) and 13(2) of the Constitution. At least asa matter of fairness Wimalasara could not have had it both ways,despite his manifestly false second affidavit of 3rd November 1992.Either he was in with them or he was not. The evidence, including hisown was that he was not of the Ratawesi Peramuna fold.
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COSTSl make order that Malinda Channa Pieris, the applicant in S.C.Application 146/92; M. D. Daniel, the applicant in S.C. Application147/92; Singapulli Hewage Dayananda, the applicant in S.C.Application 148/92; Athureliye Rathana (Ranjith), the applicant in S.C.Application 149/92; Rev. Thalpitiye Wimalasara, applicant in S.C.Application 150/92; Kuruwitage Nandana Perera, the applicant in
S.C. Application 151/92; Jayasinghe Mudiyanselage JanakaPriyantha Bandara, the applicant in Application 152/92; PallimullaHewa Geeganage Pradeep Chandanaratne, applicant in S.C.Application 153/92; Ranawake Arachchige Patali ChampikaRanawake, applicant in S.C. Application 154/92 and the followingapplicants in S.C. Application 155/92, namely, AvalikaraGalappathige Muditha Malika Wimalasuriya, Gileemalage JanakaPriyantha Dayaratne, Karunaratne Paranavithana, WeerasekeraMudalige Anura Weerasekera, Rev. Kalupahana Piyarathana, Rev.Ambalanthota Premarathana and Rev. Kuthulgala Upali be each andseverally paid by the State a sum of Rs. 5000 as costs.
WIJETUNGA, J. -1 agree.
GOONEWARDENE, J.
In his judgment Amerasinghe J. has dealt with the issues that arisefor consideration and there is nothing I need add in that regard. Iconcur with him as to his findings and the relief granted to thepetitioners.
Relief ordered.