LATHIFF, POUCE INSPECTOR, SOCIAL TASK FORCE, AND OTHERSSUPREME COURT
SENEVIRATNE J.. G. P. S. DE SUVA J.i'ANOFERNANbo, J."
S.C. REFERENCE NO. 3/88C. A APPLICATION(H. C. A.) NO. 19/88JULY 26, 1988
.Writ of habeas corpus — Article 141 of the Constitution — Denial of custody'i^Inquiry by Court of First instance.
Petitioner filed this application for a Writ of Habeas Corpus in the Court ofAppeal aliasing that on or about 12.11.1987 the 1st Respondent (ChiefInspector of'Police and Officer Commanding Special Task Force-Camp,Morayaya)'with some of his officers crime in. a jeep and removed' the"4threspondent (petitioner’s brother) on the instructions of the 2nd respondent(I. G. P.) and was holding him in unlawful and illegal detention. The 1 st and 2ndrespondents filed affidavits denying that the 4th respondent had been taken intocustody. When the matter was taken up in the Court of Appeal. Counsel for thepetitioner moved that the matter be referred to a Court of First Instance forinquiry. The Additional Solicitor-General objected oh the ground that underArticle 141 of the Constitution the Court had no jurisdiction to direct an inquiryunless the "Court is satisfied that the corpus is in the custody of. or within thecontrol of the respondents". The Court of Appeal being of the view-that aninterpretation of the Constitution was involved referred the matter to vtheSupreme Court on two questions for determination.
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. It is only-tif the detention; is not proved to be. lawful that the writ is issued-The practice of our Courts has been'to issue the writ as the final step in theproceedings.
The writ of habeas corpus is a prerogative writ of right which issues exdebit justitiae when the applicant has satisfied the Court at the conclusion of the. inquiry that the detention is.unlawful. But exceptionally it may. be issued at anearlier stage if there is a .likelihood that detay may defeat justice or .where.-the factsand law am clear.
' (3) An (interim) order for the production of the corpus is not an essentiat stepin the procedure prior to the final decision. Article 141 does riot make an order .for production mandatory either at the stage of the issue of notice or at any
other stage. An order to bring up the corpus is not an essential pre-condition to –the exercise of the' powers oil the Court of Appeal. The Article places no
restriction on the discretion of the Court of Appeal.
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The fact that the respondents.deny haying custody or control of custody is
admittedly not a bar-to inquiry by the Courtof Appeal. There is nothing tosuggest that such a denial would be a bar to a direction by the Court-.of Appealthat an inquiry be held by a Court of First Instance. .,
There is no requirement that the Court of Appeal should first inquire intothe question of custody (where it is denied) before proceeding further:
The’Court of Appeal 'can direct a judge of ra' Court of first instance to inquireinto the alleged imprisonment or detention of "the corpus'arid make its reportdespite respondents'denial of custody or control of the corpus., ,
.' It is not necessary for-the Court of Appeal to satisfy itself that the corpus iswithin ,the custody or control of.the respondents before the matter is referred toa judgeof a Court of First Instance for inquiry and report.
Cases referred to
t. Rjt Bracegirdle 39IHLR 193
2. Thamboo v. Superintended of Prisons S9 NLR 673
3; Jobu Nadar Ir. Grey 58 NLR 85'
4. Asary v. Vanden Dreesen 54 NLR 66, 89.
’ 5. Carus Wilson's Case (1845) 72 B 984
Rasammah v.Perera (1982) 1 Sri LR 30
John <3. Stem Si Co. Ltd. v. O'Hanlon (1965) 1 alfER 547, 550
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REFERENCE to the Supreme Court by Court of Appeal under Article 125 of theConstitution.
R. K. W. Goonesekera with Prins Gunasakara,.Mrs. Suriya Wickremasinghe and
K.Abeypala for petitioner. *
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Sunil da Sifva, Additional Solicitor-General with NG. Amaratunga S.S.C. for the;Attorney-General/
August 23. 1988 '
The Petitioner made an application tb the Court of Appeal,under, and in terms of Article 141 of the Constitution, for thegrant and issue of an .order, in the nature of a writ of HabeasCorpus. in respect of his brother, the 4th Respondent. He averredthat on or about 12.11.8t the 1st Respondent (Chief Inspector *of Police and Officer Commanding Special Task Force Camp.,Morayaya) and some of his officers came in a jeep to theresidence of the 4th Respondent, and on the'Instructions of the2nd Respondent (the Inspector-General, of Police) took the 4thRespondent into custody at about 4 p.m.; that he is unaware ofthe present whereabouts of the 4th Respondent that the 4thRespondent has not been produced in any Court; and that thq4th Respondent's detention in the custody of subordinates of the2pd Respondent is illegal and unwarranted.
On'notice being issued, the 1st and 2nd Respondents'filedaffidavits, denying that the 4th Respondent had been taken intocustody, on 12.11.87 or any other date, by the 1st Respondentor any officer attached to the S. T. F. Camp at Morayaya. andasserting that the 4th Respondent is not in Police custody, at thatCamp or elsewhere. '
. On 19.5.88 when that application was taken up in the Court ofAppeal (S> N. Silva, J.), Counsel for the Petitioner moved that thematter be referred for inquiry by a Court of First Instance in termsof the first, proviso to Article 141. The Additional Soljcitor-General appearing for the Respondents objected "on the basisthat (the Court of Appeal) has no jurisdiction to direct an inquiryin. terms of the proviso unless the Court is satisfied that thecorpus is : in .the custody of.' or within the control of. theRespondents." Being of the view that these submissions raisedquestions of interpretation of Article 141 of the Constitution,Silva, J.. referred the following questions to this Court for adetermination in terms of Article 125:
' (i) Whether the Court of Appeal has jurisdiction, in terms ofthe proviso to Article 141 of the Constitution, to direct aJudge of a Court of First Instance to inquire into the
alleged imprisonment or detention of the corpus, and tomake report thereon, in a case where the Respondentsdeny having taken into custody or detained, or having intheir control, the corpus?*
(2) Whether in a situation where the Respondents denyhaving taken into custody or detained, or haying in their .control, the corpus as aforesaid, it is necessary for theCourt of Appeal to satisfy itself in the first instance, afterhearing, that the corpus is within the custody of, ordetained by, or in the control of; the Respondents, beforethe matter is referred to a Judge of a Court of FirstInstance for Inquiry?
Learned Counsel for the. Petitioner and the learned AdditionalSolicitor-General are agreed that such a denial by theRespondents is not conclusive: the application does not have tobe dismissed ipso facto; and the Court of Appeal has theundoubted jurisdiction to inquire into and determine whether theRespondents have custody or control of the Corpus .The onlymatter in dispute, and for determination ,by us; is whether theCourt of Appeal can exercise its power .under the first, provisoonly if it is first “satisfied" that the corpus is in the custody drcontrol of the.Respondents. In the course of his submissions, thelearned Additional Solicitor*Generalhnade two qualifications, orrefinements, to this contention: firstly, that.it is sufficient if theCourt of Appeal is "satisfied or at letwt primafade satisfied",and secondly.' that it is sufficient'if the Court’ of Appeal is"satisfied" that the corpus had been at some stage in thecustody or control of the Respondents. -^
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The relevant portions of Article 141 may conveniently beanalysed as follows;
'The Court of Appeal may-grant and issue orders in thenature of writs of habeas corpus to bring up before such *Court —
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(a) the body Of'any person, to be dealt with according tolaw; or.
(b) the body of any person illegally or improperly detainedin public or private custody.
and to-discharge or.remand any person so-brought up. orotherwise deal .with such person according to law:
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Provided that it shall be lawful for the Court of Appeal—
.to require the body of such person to be brought up beforethe most convenient Court of First Instance and
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to direct the judge of such court-to inquire intp and report upon the acts of the alleged
1 imprisonment of detention and
to make such provision for the interim custody of the bodyproduced as to such court shall seem right
and the Court of Appeal shall upon the receipt of such, report* make order to discharge or remand, the person sdajleged to be imprisonedor detained or otherwise deal withsuch person according' to law, and the Court of FirstInstance shall conform to, and carry into immediate effect,the order so pronounced of made by the Court Of Appeal."
In support of his contention the learned Additional Solicitor-General submitted, firstly, that ah order for the production :of thecorpus is a sine'qua non for the exercise of the power under theproviso: relying particularly on the phraseology of Article 141 inSrnhala, he contended that the selection of the Court'of FirstInstance depends on the convenience of production of thecorpus; since it is "such" court which may be directed to inquireand report, he argued, the power'to direct such' inquiry isdependent on an order for production of the corpus, as it is onlysuch ah order which will enable the identification and selectionof the court of inquiry. Secondly, he contended'that an order,made under the proviso, for the production of the corpus beforethe Court of First Instance, is part of the writ of Habeas corpusitself; since the writ has to be directed to the person having
custody of the corpus, it is an essential pre-condition to themaking of such order that the Court of Appeal should be Satisfiedthat the corpus is in the custody of such person; the Court oughtnot to stultify itself by making such an order, without being sosatisfied, as it would be open to the Respondents to disobeysuch order with impunity on the ground that the corpus is not intheir custody or control. Finally, he submitted that under Article141 the jurisdiction, power and duty to inquire into anapplication is cast, primarily, on the Court of Appeal; that thepower to delegate, as it were, part of that inquiry is by way of analternative, or even an exception, and accordingly that powercannot be exercised unless the Court was satisfied that an order,for the production of the corpus should be made.
The practice of the Court having jurisdiction in respect ofhabeas corpus applications has generally* been to issue..' in thefirst instance, only notice of the application; our attention wasdraw to the Bracegirdle case (1) in which a Rule nisi was issued,in response to which the corpus was produced before the Court.(Also in Thamboov. Superintendent of Prison (2). Jobu Nadar v.Grey (3) and in Asary v. Vanden Dreesen (4) the notice issued wastreated as an order nisi)! As in that-case, orders have sometimesbeen made for the production of the corpus pending the finaldetermination of such applications, but there appears to be noprecedent in which such an prder was made where detentionwas denied. It is only if the detention is. not proved to be lavyfulthat the writ is issued. Thus the practice of our Courts has beento issue the writ as the final step in the proceedings.
Reference to the history of the writ in England shows that it is aprerogative writ but not e "writ of course", and therefore cannotbe had for the asking; proper- cause must be shown to thesatisfaction of a court; it is. however, not discretionary, in that itis a writ of right which issues ex debito justitiae When theapplicant has satisfied the. court that his detention was unlawful— De Smith: Judicial Review of Administrative Action (1959) pp253-258. (2) Although it appears that in early times the writ issued,in the first instance, even prior to final adjudication, calling uponthe person by whom the prisoner is alleged to be kept inconfinement to . bring such prisoner before the court — see forinstance the example cited by Dicey: Law of the Constitution 9thEd. (1956) p. 214 citing Cants Wilson's Case (5) — such ordersare now made only in exeptional circumstances. Wade:Administrative Law 5th Ed. p. 542 refers thus to the presentprocedure in England:
'The procedure is governed by special rules of court….The writ may be applied for ex pane; i.e. without notice tothe custodian, with the support of an affidavit made by-oron behalf of the’prisoner; the court will then, normallyadjourn the case for argument between the parties, with orwithout requiring the prisoner to be brought before it: Themodern practice is not to require the production of theprisoner unless there are special circumstances, but toorder his release if the imprisonment is found to beunlawful, whereupon the writ of habeas corpus is issued."
Our practice appears to correspond to the modern practice inEngland. The writ is only issued at the conclusion . of theproceedings if the imprisonment is held to be unlawful; it may,exceptionally,-be issued at an earlier stage if there is a likelihoodthat delay may defeat justice or where the facts and law are clear:an (interim) order for the production of the corpus is not anessential step in the procedure prior to the final-decision, it isunfortunate that the determination of this Court in Rasammah v.Perera (6) was not cited in the course.of the argument before us,for it was there settled that when a prima facie case is made outby an applicant for habeas corpus, there' is no mandatoryrequirement that a writ should be issued requiring the corpus tobe produced prior to inquiry into the legality of the detention;that the customary' procedure was the issue of notice upon an expane application, an order for the production of the corpus onthe notice returnable date not being mandatory. Indeed, in a casewhere the -Respondent denies custody, such an (interim) orderfor production of the corpus would amount to pre-judging theRespondent's case.
Consideration of the submissions of the learned Additional.Solicitor-General must thus begin on that basic premise.
Does the language of the proviso make a drastic change in thenature of the inquiry into the facts of a habeas corpusapplication? Where custody is denied, more complex questionsof fact are likely to arise than where custody is admitted; suchcases would therefore seem to be more appropriate for inquiryinto the facts by a Court of First Instance. Learned Counsel forthe Petitioner referred to a significant change in the language ofArticle 141, namely, the substitution of the phrase "acts of thealleged imprisonment" for the phrase "causeof the allegedimprisonment" which occurred in section 45 of the CourtsOrdinance and in section 12 of the Administration of Justice LawNo. 44 of 1973; had there been any doubt as to the scope of thephrase previously used, the present formulation appears to meclearly to permit an inquiry into the.facts where detention isdenied.•.
I must refer to three aspects of the proviso, which lend somesupport to the learnd Additional Solicitor-General's contention.Prime facie.the first two clauses of the proviso are conjunctive;further, the direction "to make provision for interim custody" alsoappears to be conjunctive; finally, the order of the Court ofAppeal is one which the Court of First Instance must "conform toand carry into immediate effect", and this appears to suggest thatin every case in which an inquiry is held.under the proviso anorder for interim custody would have been made in respect ofthe corpus.
Although the word ’’such" in the second clause of the proviso,fs undoubtedly used to refer to the "convenient" court specifiedin the first clause, it does not necessarily follow that an orderunder the first clause is a condition precedent to a directionunder the second. I incline to the view that the proviso confers adiscretion on the Court of Appeal, to delegate part of the inquiryinto a habeas corpus application — namely, the ascertainment ofthe relevant facts; in a case in which the Court decides toexercise that discretion, the Court has a further discretion,namely to require the corpus to be produced before the Court of.First- instance. Where the Court of Appeal is of the view thatproduction of the corpus is unnecessary or undesirable, it wouldnot exercise'the power to require the corpus to be produced
before the Court of Appeal: it must follow (except perhaps insome very extraordinary situation which cannot now be easilyvisualized) that in such a Case if the Court delegates part of theinquiry in terms of the proviso, the Court will, or at least may.refrair^ from exercising its further discretion to require theproduction of the corpus before the Court of First Instance. .
It is not difficult to conceive of cases where the circumstancesof the detention, considerations of security and the safety .andhealth of the corpus, all converge, to require production in anyCourt totally unnecessary and undesirable: a full and fair inquiry,convenient to all concerned, may necessarily have to be in aCourt of First Instance: an interpretation of the proviso, whichprevents delegation in such a situation, unless accompanied byan order for production of the corpus, would be unreasonable,and must be avoided in the absence of compelling language:
The use of the word "and" in the p/oviso is not conjunctive, soas to require that both powers be exercised. Although "and" is. normally conjunctive, disjunctive use is by no means Unusual:Stein v. O’Hanion (7). in which Lord Reid remarked that ihesymbol "and/or" is hot yet part of the. English language. It washeld that the word “and" was used to indicate that one or themother.of two specified acts, or both, should be done: likewise,"and" occurring in two places in the proviso ("and to direct" aswell as "and to make provision").has been used to indicate thateither or both the specified powers may be exercised.
The previous determination (6) of this Court, with which I seeno reason-to disagree, is that the words "to bring up before (the)
. Court" in the opening clause of Article -141 do nbt make an orderfor production mandatory, either at the stage of the issue ofnotice or at any other stage. These words do no more than echothe formal parts of the ancient writ — have the body brought upbefore the Court. The language of the first clause .of the proviso— "require the body of such person to be brought up before the…. Court"— is in substance the same as the opening wordsof Article 141, and cannot have a contrary meaning. I amtherefore of the view that an order to bring up the corpus beforea Court is not an essential pre-condition to the exercise of the'powers of the Court of Appeal either under the first part of Article141 or under'the proviso.
Article 141 places no restriction on the discretion.of the Courtof Appeal under the proviso; no decision of this Court, o^of theCourt of Appeal, was cited tending to suggest that there was anysuch restriction.
The fact that the Respondents deny having custody or controlof the corpus is admittedly not a bar to inquiry by the Court ofAppeal; there is nothing in Article’ 141 to suggest that such adenial would be a bar to a direction that an inquiry be Held by aCourt of First Instance. The proviso cannot be interpreted so asto introduce, an exception or qualification, e.g., "except where theRespondent denies that such person is, or has at any time been,in his custody or cbntrol".
Where an application is heard and determined by the Court ofAppeal, there is no requirement that it should first inquire intothe question of custody before proceeding, further; exercise ofpower under the proviso is not made conditional oh a priordecision on the question of custody. A restriction that "where it issatisfied (or. prima facie satisfied) that such person is, or has atany time been, in the custody or control of the Respondent"'cannot be introduced into the proviso by interpretation,
Thus the powers conferred on the Court of Appeal are notsubject to any such implied condition or restriction! Being aconstitutional provision intended to safeguard the liberty of the^citizen, the proviso must receive a liberal construction. •;
(2) Where the Respondents deny having taken the corpusinto custody or detention, or deny having the corpus intheir custody or control, it is not necessary for the Courtof Appeal to satisfy itself in the first instance., afterhearing, that the corpus is within the custody of, ordetained by. or irvthe control of. .the Respondents, before. the matter is referred to a Judge of a Court of Firstinstance for inquiry and report in terms of the proviso toArticle T41.
SENEVIRATNE. J. — I agree
G. p. SDESILVA.J – I agree
Case sent back with determination of Supreme Court