015-SLLR-SLLR-1998-V-2-JAYARATNE-ANDA-OTHERS-v.-CHANDRANANDA-DE-SILVA-SECRETARY-MINISTER-OF-DEF.pdf
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Jayaratne and Others v. Chandrananda de Silva, Secretary,
Ministry of Defence and Others
129
JAYARATNE AND OTHERS
v.CHANDRANANDA DE SILVA, SECRETARY,
MINISTRY OF DEFENCE AND OTHERS
SUPREME COURTFERNANDO, J.,
AMERASINGHE, J. ANDGUNASEKERA, J.
SC APPLICATIONSNOS.609,583,590,591/96
NOS.610,611,612,628/96
NOS.660,661AND671/96
26TH AUGUST, 1998
Fundamental rights – Emergency regulations – Detention orders under regulation17 (1) – Infringement of Articles 13 (1) and 13 (2) of the Constitution.
Eleven petitioners were arrested and detained by virtue of orders issued by the1st respondent purporting to act under Emergency regulation 17 (1) on the basisthat their detention was necessary to prevent them from acting in a mannerprejudicial to public order. The 1st respondent stated in his affidavit that thedetention orders were issued at the request of the Director CID and on the basisof material submitted to him alleging that there were threats directed at thePresidential Commission investigating the incidents at Batalanda; that there wasinformation that the detainees (Police Officers) whose names transpired beforethe Commission were attempting to leave the Island; and that there was a possibilitythat they would inflict violence on the Commissioners themselves and witnesseswho have testified before the Commission.
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Held:
Communicating the purpose or object of the arrest does not satisfy theConstitutional requirement that the reasons for the arrest must be disclosed.
The material available to the 1st respondent was vague and was purehearsay. He could not reasonably have formed an opinion adverse to thepetitioners on such material. Consequently, he did not entertain, and couldnot have entertained, a genuine apprehension that the petitioners wouldact in a manner prejudicial to the national security or the maintenanceof public order.
The “balance of convenience" is not a defence that can be advanced forupholding the arrest and preventive detention of the petitioners. A reason-able apprehension of past or future wrong doing is an essential prerequisitefor the deprivation of personal liberty.
Per Fernando, J.
"It is true that allegations of misconduct against Police Officers must be dealtwith promptly and effectively . . . However, it is distressing and disturbingthat the entire process of arrest and detention of the petitioners has beencontrary to basic constitutional safeguards".
Cases referred to:
Rodrigo v. De Silva (1997) 3 Sri LR 265.
Perera v. Rajaguru (1997) 3 Sri LR 141.
APPLICATION for relief for infringement of fundamental rights.
Tilak Marapana, PC, with Nalin Ladduwahetti and Jayantha Fernando for the
petitioners in 583/96, 590-591/96, 628/96, 660-661/96 and 671/96.
Upul Jayasuriya for the petitioners in 609-612/96.
S. Fernando SSC for the respondents in 583/96, 590/96 and 609-612/96.
S. Rajaratnam SC for the respondents in 591/96, 628/96 and 661/96.
P. D. Ratnayake, SC for the respondents in 660/96 and 671/96.
Cur. adv. vult.
September 21, 1998
FERNANDO, J.
These eleven applications were taken up for hearing together, as theyinvolved the same questions of law and fact. Submissions were madein regard to application No. 609/96, and it was agreed that the decisionin that application would apply to the other ten.
SC Jayaratne and Others v. Chandrananda de Silva, Secretary,
Ministry of Defence and Others (Fernando, J.)131
The petitioner is a Sergeant in the Police. By virtue of an undatedorder issued by the 1st respondent (the Secretary, Ministry ofDefence), purporting to act under Emergency regulation 17 (1), thepetitioner was arrested on 10.8.96, detained without being producedbefore a Magistrate, and released on 21.9.96 after the 1st respondentrevoked that detention order on 19.9.96. In that order the 1strespondent failed to state his opinion as to the period for which heconsidered detention necessary.
It is not disputed that the failure to stipulate the period of detentionrendered the 1st respondent's order invaild (see Rodrigo v. de Silva,[1997] 3 Sri LR 265, and Perera v. Rajaguru, [1997] 3 Sri LR 141);and that the stipulated place of detention was not an authorised placeof detention under the Emergency regulations. As for the arrest itself,the petitioner stated that he had not been informed of the reasonsfor his arrest. In his affidavit, the arresting officer averred that heinformed the petitioner that the 1st respondent had issued a detentionorder "on the basis that his detention would be required to preventhim from acting in a manner prejudicial to public order". For thereasons stated in Rodrigo v. de Silva, I hold that communicating thepurpose or the object of the arrest does not satisfy the constitutionalrequirement that the reasons for the arrest must be disclosed.
Apart from those defects, Mr. Marapana, PC, strenuously con-tended that the 1st respondent's order was illegal because he hadno material whatsoever on which he could possibly have formed theopinion that the arrest and detention of any of the petitioners werenecessary to prevent them acting in a manner prejudicial to thenational security or the maintenance of public order.
In his affidavit, the 1st respondent stated:
"… I received letter dated 9th August, 1996, from Director,CID, a certified copy of which is submitted to Your Lordships ina confidential cover, marked 1R1, requesting Detention Orders interms of [Emergency] regulation 17 … in respect of those whosenames appear in that letter. I
I was also informed of the various threats directed at thePresidential Commission investigating the incidents at Batalandaand that there was information that police officers whose namestranspired before the Commission were attempting to leave the
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Island and that there is a possibility that they could inflict violenceon the Commissioners themselves and witnesses who have testifiedbefore the Commission".
I having considered the material submitted to me including thecontents of the letter [1R1] was of the view that the police officerswhose names appear in the letter marked 1R1 may inflict violenceon the Commission and the witnesses and that such acts wouldbe prejudiced [s/'cj to National Security and also Public Order andthat it would be necessary to detain them in order to preventthem from acting in a manner prejudiced [sic] to National Securityand public order, issued Detention Order . . (emphasis addedthroughout).
The 1st respondent gave no reason why 1R1 should be withheldfrom the petitioners, nor did he make any reference to a letter (4R1)written by the 4th respondent, the Inspector-General of Police, anda file of documents (4R2), submitted to this Court by the 4th respond-ent in a confidential cover. The 4th respondent claimed that divulgingthe contents of 4R1 and 4R2 “at this stage” – presumably, at thetime his affidavit was filed – “may adversely affect the investigations".It transpired at the hearing that even state counsel appearing for therespondents had not been furnished with these documents.
It is common ground that no investigations took place either beforeor after the arrest of the petitioners; that they were not even askedto make statements; and that those documents contain no allegationagainst any of the petitioners, by name, designation, description, orotherwise. Indeed, they make no specific allegation of wrongdoingagainst any named or identified person, except that the file of docu-ments marked 4R2 contains references to anonymous threats againstwitnesses before the "Presidential Commission of Inquiry into theDisappearance of Persons, Unlawful Arrest of Persons, and theOperation of Places of Detention at the Batalanda Housing Scheme"(the Commission). Apart from certain inconsistencies between thosedocuments and the affidavits filed on behalf of the Respondents, thesubstance of those documents has already been disclosed in theaffidavits of the 1st and 4th respondents, and the director, CID, exceptthat the names of the persons who say they received anonymousthreats have not been disclosed.
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Jayaratne and Others v. Chandrananda de Silva, Secretary,
Ministry of Defence and Others (Fernando, J.)
133
Accordingly, we disclosed the contents of those documents tocounsel for the petitioners, and furnished copies to state counsel.Although I will quote some relevant extracts from those documents,the documents themselves will not be made part of the record. TheRegistrar is directed to return them to the respondents after thisjudgment is delivered.
By 1R1 dated 9.8.96 the Director, CID, requested the 1st respond-ent to issue detention orders because:
"On the evidence led before the Presidential Commission re-garding crimes committed at Batalanda the following Police Officers[s/c] found to be responsible for committing various offences.
[Twelve names were then mentioned: the petitioners in theseeleven cases and Douglas Peiris, SSP, who, according to the 4threspondent, was abroad.]
Intelligence reports indicate that these officers are conspiringto subvert the course of justice and to act in a manner prejudicialto the national security. It is also reported that they could leavethe country by illicit means to avoid due process of law. Confidentialinformation indicates that these persons before leaving the countrycould inflict violence on the Commissioners of the judicial forumlooking into these criminal acts and the witnesses who are andwho have testified before the Commission”.
In the affidavit which he filed in these proceedings the Director,CID, said:
"I am aware of the various threats received by officers assistingthe Presidential Commission investigating incidents that had takenplace at Batalanda. I was also aware that there was informationthat police officers whose names had transpired during the courseof the proceedings before the Commission and whose conductcould be the subject of investigation by the Commission wereattempting to leave the Island and that they may inflict acts ofviolence against the Commission before leaving the Island. I
I also received from the 4th respondent the letter . . . [4R1]directing me to investigate information regarding a possible threatof violence before the Commission.
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I was also aware of the information contained in the file [4R2).
In view of this information I was of the view that the policeofficers whose names transpired before the Commission and whoseconduct would possibly be investigated by the Commission mayinflict violence on the Commission and officers assisting theCommission and witnesses, and that detention of such officerswould be necessary to prevent them from acting in a mannerprejudicial to public order.
I therefore brought this information to the notice of the Secretaryto the Ministry of Defence and requested . . . [detention orders]”.
This affidavit shows that the confidential letter 1R1, by which theDirector, CID, asked the 1st respondent to issue detention orders,contains wilful exaggerations, and even misstatements, as to thematerial he actually had. Thus, although 1R1 asserts that thepetitioners had been "found responsible" for offences, his affidavit inthis Court only mentions that their conduct "would possibly be inves-tigated". Mr. Marapana submitted, without contradiction, that none ofthe petitioners had even been summoned by the Commission. In thisCourt, the Director, CID, did not repeat his allegation that he had"intelligence reports" of a "conspiracy" to subvert the course of justice,etc. Although he admits that (by 4R1 of 9.8.96) the 4th respondenthad directed him to investigate "a possible threat of violence beforethe Commission", nevertheless it was without any investigation atall that he wrote the very same day to the 1st respondent claimingthat he had "confidential information" of possible violence to theCommission.
The question which we have to decide is whether, when the 1strespondent made the impugned detention orders, he had material onwhich he could reasonably have formed the opinion that, prima facie,(a) on the evidence led before the Commission the petitioners hadbeen "found responsible" for any offence and/or (b) that there werecredible intelligence reports indicating that they were "conspiring tosubvert the course of justice", and/or (c) that there was credible"information" that they had some connection with threats directed atthe Commission or that they “could inflict violence on the Commis-sioners", or on the witnesses. In that event alone could he have formedthe view that it was necessary that the eleven petitioners be takeninto custody and detained, in order to prevent them from acting in
SC Jayaratne and Others v. Chandrananda de Silva, Secretary,
Ministry of Defence and Others (Fernando, J.)135
any manner prejudicial to the national security or to the maintenanceof public order.
There is no doubt as to what material the 1st respondent hadactually had before him. From his affidavit and the letter 1R1, it isvery clear that the only material submitted to him was the letter 1R1.He does not say that he asked the Director, CID, or the 4th respondent,or anyone else, to submit any other material.
Apart from a vague general statement' in his affidavit – that he"considered" the material submitted to him, including 1R1 – the 1strespondent does not say that he acted because the petitioners hadbeen “found responsible" for any offence; or because they wereengaged in a "conspiracy to subvert the course of justice" and/or "toact in a manner prejudicial to the national security". Although thosetwo allegations appear in the letter 1R1 which the Director, CID, senthim – for which the respondents request "confidentiality" – it issignificant that he was not prepared to repeat those allegations inthe affidavit he filed in this Court. The 1st respondent could easilyhave asked the Director, CID, to submit "the evidence led beforethe Commission" and the "intelligence reports" which the Director,CID, had referred to, but failed to do so.
The only matter which the 1st respondent specifically mentionedin his affidavit was "information" about threats and the possibility ofviolence. Here, too, he did not call for supporting material fromanyone.
The 1st respondent was under a duty to form an opinion himself,after considering the material available, and (where that was insuf-ficient) after calling for additional material; he could not abdicate hisresponsibility to call for, peruse and assess the relevant material, bysimply adopting the opinion of the Director, CID. I
Ihold that the 1st respondent did not actually form an independentopinion that the petitioners had been found responsible for any offence,or were engaged in any conspiracy, or were likely to resort to forceor violence against the Commissioners or witnesses. Further, not onlywas the tenuous material available to him vague and lacking inparticulars, but it was pure hearsay. He could not reasonably haveformed an opinion adverse to the petitioners on such material.
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(1998) 2 Sri L.R.
Consequently, I also hold that he did not entertain, and could nothave entertained, a genuine apprehension that the petitioners wouldact in a manner prejudicial to the national security or to themaintenance of public order.
Although it was conceded, on behalf of the respondents, that therewas no material whatsoever implicating any of the petitioners – placedbefore the 1st respondent, or even before this Court – neverthelessit was submitted that the 4th respondent, the Head of the Police Force,had deposed that he had reports and information that the petitionerswere attempting to disrupt the activities of the Commission, and touse force on witnesses and even on the Commissioners, and thatwas enough to justify the detention orders, even though that materialwas not disclosed to this Court. It was argued that there would havebeen a serious crisis if that information had proved to be true andthe attempts had been successful, and that therefore the "balanceof convenience" required the arrest and preventive detention of thepetitioners.
That is an argument which has to be mentioned only to be rejected.A reasonable suspicion or apprehension of past or future wrongdoingis an essential prerequisite for the deprivation of personal liberty. Suchdeprivation can never be justified by resorting to an expedient "balanceof convenience", which can be made to tilt towards the Executive onthe purely speculative assumption that something untoward mighthappen, but without any reasonable basis for thinking that it would.
The 1st respondent's order can only be upheld if the material beforehim justified it. However, I will refer to the other material which therespondents have submitted in the course of these proceedings,because that amply confirms that neither before nor after the arrestdid the Police have any material to justify the issue of detention orders;that even the motions of investigating any wrongdoing or threat tonational security or public order had not been gone through; and thatthe 1st respondent had been misled into making the impugned ordersby means of exaggerations and distortions of the vague allegationswhich the Police had.
The 4th respondent's letter 4R1 to the Director, CID, reads thus:
SC Jayaratne and Others v. Chandrananda de Silva, Secretary,
Ministry of Defence and Others (Fernando, J.)137
"During the evidence brought before the Presidential Commis-sion regarding crimes committed at Batalanda, names of PoliceOfficers who were instrumental in carrying out directives of the mainpersonalities responsible for running the alleged torture chambersat Batalanda have come to light and have been reported to usby the Presidential Commission.
Intelligence and information is [s/c] received that such personsare conspiring to subvert the course of Justice and to act in amanner prejudicial to the national security. It is also reported thatthat they could leave the country by illicit means to avoid dueprocess.
Confidential information indicates that these persons beforeleaving the country could inflict violence on the Commissioners ofthe judicial forum looking into these criminal acts and the witnesseswho have testified before the Commission.
We must not leave room for these elements to subvert thecourse of justice. Please take steps to immediately conductinvestigations and take these persons into preventive custody. Youshould report progress of investigations".
[He then set out the same twelve names listed in 1R1J.
In his affidavit, the 4th respondent stated that the names of severalpolice officers, including the petitioners', transpired during the courseof the proceedings before the Commission; that it was reported tohim that interested persons were attempting to disrupt the activitiesof the Commission; that the Secretary to the Commission had askedfor police protection for witnesses, and senior officers assisting theCommission had informed him that they had received death threats;that some of the officers whose names had transpired before theCommission were attempting to leave the Island, and were attemptingto subvert the course of justice, and it was feared that they may causeharm to the Commissioners; and that persons who had reasons tofear the findings of the Commission were attempting to disrupt itsactivities and may use force on witnesses and even on theCommissioners. He neither produced nor even referred to anysupporting material, in the form of statements, reports or otherwise,other than the file 4R2.
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The file 4R2 contains complaints and memoranda aboutanonymous threats to six witnesses and one Police Officer, but notone of those documents refers to any of the petitioners. The onlydocument which mentions any of them by name is a letter dated16.2.96 (nearly six months before the impugned detention orders wereissued) written to the 4th respondent by the Acting Secretary to theCommission, on the instructions of the Chairman. It states that theevidence led before the Commission and the other information dis-closed in the course of investigations includes evidence that ninenamed Police officers have committed offences or have been involvedin their commission. Further, it was copied to two other state counsel,and that makes it difficult to understand why it was not disclosed tostate counsel who appeared in these cases.
The file 4R2 gives rise to several awkward questions.
The nine names specified include the names of two DeputyInspectors-General of Police and six of the petitioners. The namesof the other five petitioners do not appear anywhere in 4R2, or inany other document produced by the respondents. There is noexplanation as to how the 4th respondent, and thereafter the Director,CID, came to include those five names in 4R1 and 1R1. Further,inexplicably, the names of the two Deputy Inspectors-General of Policedo not appear in 4R1 and 1R1. The petitioner in application 609/96is one of the five who are not named in the letter dated 16.2.96.
Second, there is nothing in 4R2 which justifies the representationby the Director, CID, to the 1st respondent that the petitioners hadbeen “found responsible" for offences. It is not clear from the letterdated 16.2.96 whether the names of any petitioners (and if so, which)transpired in statements made in the course of investigation, or inevidence led before the Commission: but it certainly does not suggestthat any findings had been reached. There is no explanation fromthe 4th respondent as to how he concluded (from 4R2 or otherwise)that there were “main personalities responsible for running the allegedtorture chambers" and that the petitioners "were instrumental in carryingout the directives" of those personalities. The 1st respondent actedwithout the benefit of studying the file 4R2, upon a serious distortionof the allegations it contained, aggravated by the addition of five extranames. Indeed, if, contrary to my view, 4R2 had been made availableto the 1st respondent, that would make matters worse: the exaggera-tions. and distortions in 1R1 would have been quite apparent to him.
SC Jayaratne and Others v. Chandrananda de Silva, Secretary,
Ministry of Defence and Others (Fernando, J.)139
Third, there is nothing in the file 4R2 which refers to any fear offorce or violence to the Commissioners themselves. All that the letterdated 16.2.96 states is that it had been revealed that some of thenamed officers were still in service – at their former stations, or nearby,or close to Colombo, or elsewhere – and that some of them wereyet holding positions in which they could, exert pressure on Policeand other witnesses, and obstruct the Commission's investigations.What was the confidential information which the Director, CID, hadas to violence directed at the Commissioners? Which of the six namedpetitioners fell into that category? And what was the connection ofthe other five petitioners who were not named in 4R2?
Finally, it is relevant to mention that although the 4th respondentdid not refer to any specific incident or information involving thepetitioners, either in 4R1 or in his affidavit, yet in his affidavit he saidthis:
"On [15.3.96] . . . state counsel leading evidence before theCommission had moved for an adjournment on the basis that therewere two strangers inside [the] court house of whom he wassuspicious due to their behaviour. Accordingly [their] identity hadbeen checked, and it had been found that they were . . . securityofficers of Mr. Douglas Peiris against whom evidence had beenled before the Commission. They, in fact, had no business beforethe Commission".
I express no opinion as to the right of those two persons to bepresent during the proceedings of the Commission; and as to the rightof Douglas Peiris, if evidence had been led against him, to havesomeone present on his behalf to follow those proceedings. Leavingthat aspect aside, the 4th respondent does not say whether thatincident was even investigated, and what the alleged offence ormisconduct was, and whether any action was taken by the Commissionor the Police. And in any event the 4th respondent did not suggestany link between those two persons and the eleven petitioners. Thefact that the 4th respondent chose to mention only that incident inhis affidavit confirms that he knew of nothing more serious.
There can be no doubt that there was no material on which the1st respondent could reasonably have formed the opinion that theeleven petitioners, or any of them, had been found responsible foroffences, or that they were conspiring to subvert the course of justice,or to act in a manner prejudicial to national security or public order,or that they might inflict violence on the Commissioners or the
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witnesses. If 1R1 was all that he had, he should have called foradditional or supporting material, and the failure to do so was a seriouslapse. On the other hand, if 4R2 had also been placed before him- which is doubtful – the 1st respondent himself should have realisedthat the material did not disclose any past misconduct, and did notjustify any apprehension of future misconduct. As for the 4th respond-ent, he fails to explain why, for nearly six months after receiving theletter dated 16.2.96, he took no action – either to call for supportingmaterial or to direct an investigation; and how and why, on 9.8.96,he was spurred into action, ordering the Director, CID, “to immediatelyinvestigate and take [the petitioners] into preventive custody". Likewise,the Director, CID, does not explain why, without any investigation, heasked the 1st respondent for detention orders. In all that haste,undated and indeterminate detention orders were issued, after mereallegations in the letter dated 16.2.96 had been represented to beevidence in 4R1, and had thereafter been transformed into findingsin 1R1; and, what is even worse, allegations against six petitionersbecame findings against eleven, and the names of the two DeputyInspectors-General of Police faded out of the picture. It is true thatallegations of misconduct against Police Officers must be dealt withpromptly and effectively, and that the 1st and 4th respondents andthe Director, CID, purported to be acting in order to prevent thesubversion of the course of justice before a Commission inquiring intounlawful arrests and unlawful places of detention. However, it isdistressing and disturbing that the entire process of arrest and de-tention of the petitioners has been contrary to basic constitutionalsafeguards. I
I therefore grant the petitioner a declaration that his fundamentalrights under Articles 13 (1) and 13 (2) have been infringed by the1st respondent upon the instigation of the 4th respondent. Thedetention order was illegal and void, and his arrest and detention forabout forty days was wholly illegal, without any justification whatever,and I direct the state to pay him a sum of Rs. 50,000 as compensation,and Rs. 5,000 as costs. As agreed, the petitioners in the other tenapplications will be entitled to the same relief. All these payments shallbe made, and proof of payment submitted to the Registrar of thisCourt, on or before 30.10.98, failing which the Registrar is directedto list these applications for an order of Court in regard to enforcement.
AMERASINGHE, J. – I agree.
GUNASEKERA, J. – I agree.
Relief granted.