048-SLLR-SLLR-2005-V-1-MACHCHAVALLAVAN-vs.-OIC-ARMY-CAMP-PLANTAIN-POINT-TRINCOMALEE-AND-OTHER.pdf
MACHCHAVALLAVANvs
OIC, ARMY CAMP, PLANTAIN POINT, TRINCOMALEE ANDOTHERSSUPREME COURTBANDARANAYAKE, J.
UDALAGAMA, J. ANDFERNANDO, J.
SC. APPEAL No. 90/2003HC. APPLICATIONS No. 244/90AND 245/94
22nd SEPTEMBER AND 19th OCTOBER, 2004 AND 16th MARCH, 2005
Writ of Habeas Corpus – Loss of petitioner’s sons after removal by Army -Right to life – Articles 13(4) and 126(2) of the Constitution – Duty of Court ofAppeal to have referred the entire matter to the Supreme Court – Article 126(3)of the Constitution.
The appellant sought two writs of habeas corpus from the Court of Appeal inrespect of his two sons removed after a cordon and search operation by officersof the Army Camp, Plantain Point and who had thereafter disappeared. Theseapplications were referred to a Magistrate who inquired into them andrecommended to the Court of Appeal against issuing the writs as the
SCMachchavallavan vs•34I
OIC, Army Camp, Palntain Point, Trincomalee and others
342Sri Lanka Law Reports(2005) 1 Sri L. R.
responsibility for the loss of the corpus could not be proved against the 1strespondent or any other army officer individually. The Court of Appeal issuedrule nisi and after inquiry dismissed the applications, particularly due to theunsatisfactory evidence of the appellant after six years that he too was removedby the army. But the appellant's version was supported by the complaints hemade to the police station, Trincomalee on 19.12.1992 (P1). Civilian InformationOffice Colombo, on 21.09.1990 (P2), and to the President on 06.07.1990(P5)regarding the corpora. They were arrested on 06.07.1990. There is also theevidence of one Jesudasan who was arrested with the corpora.
One of the questions on which leave to appeal was granted was whether theCourt of Appeal failed to refer the entire matter to the Supreme Court underArticle 126(3) of the Constitution as there was prima facie evidence of violationof fundamental rights in view of the disappearance of corpora in the light ofArticle 13(4) (right to life) and recent judgments of the Supreme Court in thematter which gave a broad construction to Articles 11, 13(4), 17 and 126(2)granting the right of petition to the legal representatives of the deceased person,affected by violence at the hands of a public officer.
HELD:
There was prima facie evidence of violation of fundamental rights contraryto Articlel 3(4) of the Constitution.
The Court of Appeal should have referred the entire matter to the SupremeCourt under Article 126(3).
The burden was on the Court of Appeal to make such reference and hencethe time bar in Article 126(2) had no application particularly as the relief soughtby the appellant consisted of relief in habeas corpus applications.
There was sufficient evidence that the cordon and search operation wasconducted by the Plantain Point Army Camp even if the identity of therespondents was not established.
As the evidence showed that the corpora had been removed by the army,the State was liable for the acts of the army officers and the State could beordered to pay compensation and costs to the appellant although in the absenceof individual responsibility for the removal exemplary costs may not be orderedagainst the individual respondents.
Cases referred to
Shanthi Chandrasekeram v D. B. Wijetunga and Others (1992) 2 Sri LR293
Sebastian M Hongray v Union of India (Air) 1984 SC 1026
SCMachchavallavan vs OIC, Army Camp,343
Trincomalee and others (Bandaranayake,- J.j
Kotabadu Durage Sriyani Silva v Chanaka Iddamalgoda (2003) 1 Sri LR 14(preliminary objection)
Kotabadu Durage Sriyani Silva v Chanaka Iddamalgoda (2003) 2 Sri LR
63 (merits) ’•
Rani Fernando's case SC FR 700/2002 S. C. minutes of 26.07.2004
R v. Vrixton Prison Governor Ex-Parte walsh (1985) AC 154
R v. Durham Prison Governor Ex-Parte Hardial Singh (1984) 1 WLR 704
APPLICATION for writs of habeas corpus
Dr. T. Thirunavukarasu for petitioner appellant.
Shyamal A. Collure 1st respondents.
Riaz Hamsa, State Counsel for Attorney-General
Cur.adv. vult
March 31st, 2005
SHIRANI A. BANDARANAYAKE, J.This is an appeal from the judgment of the Court of Appeal dated
By that judgment, the Court of Appeal refused to grant a Writof Habeas Corpus as prayed by the petitioner-appellant. On an applicationby the petitioner-appellant (hereinafter referred to as the appellant), theSupreme Court granted Special Leave to Appeal on two questions whichare set out below :
At the time the Court of Appeal made the order in respect of whichSpecial Leave to Appeal was sought, there was prima facie evidenceof infringement of the fundamental rights of the corpus at least underArticle 13(4) of the Constitution caused by the 1 st respondent, or byanother State Officer, for whose act the State was liable. In thosecircumstances, it is arguable that the Court of Appeal should havereferred the entire matter for determination by this Court under Article126(3) of the Constitution ;
Whether the 1 st respondent and or the State are liable for the arrestand the subsequent presumed death of the corpora.
The facts of this appeal, albeit brief, are as follows .
The appellant, being the father of the corpora, filed two habeas corpusApplications (HCA 244/94 and HCA 245/94) in respect of his two sons,
344Sri Lanka Law Reports(2005) 1 Sri L. R.
namely Machchavallavan Arumugam and Machchavallavan Mahendrarajah.who were arrested at a cordon and search operation conducted by PlantainPoint Army, Trincomalee. At the time of the arrest which took place on
they were aged 22 years and 25 years, respectively.
The Court of Appeal on 11.09.1995, referred the two applications to theChief Magistrate, Colombo to inquire into and report upon the said arrestand alleged imprisonment or detention in terms of the 1 st proviso to Article141 of the Constitution. The learned Chief Magistrate held an inquiry andsubmitted his findings to the Court of Appeal on 14.03.1997. In his reportthe learned Chief Magistrate had concluded that there was no evidence toestablish that the 1 st respondent-respondent (hereinafter referred to as the1st respondent) either took part in the round-up operation during whichthe said corpora were alleged to have been taken into custody or was inany manner responsible for the alleged arrest and detention of the saidcorpora. However, the Court of Appeal, being satisfied that the corporawere detained at the Plantain Point Army Camp after arrest, issued a RuleNisi on the 1st respondent on 19.07.2000 directing him to bring up thebodies of the said corpora before the Court of Appeal on 17.05.2001.
In response to the aforementioned position, the 1st respondent filed anaffidavit dated 15.05.2001 denying the arrest and detention of the corporaby him. He filed another affidavit on 04.10.2001, further clarifying hisdefence. The Court of Appeal on 01.07.2003, delivered its judgmentdischarging the Rule Nisi issued on the 1 st respondent and dismissed theapplications filed by the appellant, holding that the appellant had notsucceeded in discharging his burden of proof.
Having set down the factual position in this appeal, I would now turn toexamine the two questions on which Special Leave to Appeal was granted.
1. The Court of Appeal should have referred the entire matter fordetermination by the Supreme Court under Article 126(3) of theConstitution.
Article 126 of the Constitution, deals with fundamental rights jurisdictionand its exercise and Article 126(3) specifically refers to the applicationsreceived by the Court of Appeal and reads thus :
“Where in the course of hearing in the Court of Appeal into an applicationfor orders in the nature of a writ of habeas corpus, certiorari, prohibition,
SCMachchavallavan vs O/C, Army Camp,345
Trincomalee and others (Bandaranayake, J.)
procedendo, mandamus or quo warranto, it appears to such Court thatthere is prima facie evidence of an infringement or imminent infringementof the provisions of Chapter III or Chapter IV by a party to such application,such Court shall forthwith refer such matter for determination by theSupreme Court.”
It is common ground that the appellant preferred his application to theCourt of Appeal seeking a mandate in the nature of a writ of habeascorpus directing the respondents who were responsible, for the allegedarrest and the detention of the corpora referred to in the application toproduce them before Court.
The 1st and the 4th respondents however were of the view that therewas no basis for the Court of Appeal to have referred the application madeby the appellant to the Supreme Court. Their position was that, the petition,or the supporting affidavits did not contain any averment or material againstany of the respondents cited in the petition. Further it was submitted that,in paragraph (a) to the prayer to the petition, a writ of habeas corpus wasprayed for with a direction to the responsible respondents to produce thecorpora before the Court of Appeal. In support of this position, learnedCounsel for the 1 st and 4th respondents relied on the decision in ShanthiChandrasekeram v. D. 8. Wijetunga and others(1) and submitted that,there was no prima facie evidence of an infringement of the fundamentalrights of the corpora by a party to the said applications for the Court ofAppeal to refer the instant application to the Supreme Court.
Learned Counsel for the 1 st and 4th respondents, also submitted that,the appellant in his original habeas corpus applications has not raised thequestion of any violation of fundamental rights and did not do so even inhis application for Special Leave to Appeal. Further it was submitted thatno allegations based in terms of Articles 11, 13(1), 13(2) or 13(4) weretaken up by the appellant at any stage.
4
Learned Counsel for the 1st and 4th respondents, also took up theposition that the appellant had not made the applications within thestipulated time, in terms of Article 126(2) of the Constitution.
Article 126(3) of the Constitution, referred to earlier, does not state thatall applications in the nature of obtaining writs from the Court of Appeal bereferred to the Supreme Court. Such reference is necessary only if there
346Sri Lanka Law Reports(2005) 1 Sri L. R.
is evidence to the effect that there is an infringement or an imminentinfringement of fundamental rights. Article 126(3) of the Constitution isquite precise in its position and the said Article states clearly that if itappears to the Court of Appeal, while in the course of hearing an applicationfor orders in the nature of writs of habeas corpus, certiorari, prohibition,procedendo, mandamus or quo warranto, that there is prima facie evidenceof an infringement or an imminent infringement of fundamental rights,such matter should forthwith be referred to the Supreme Court fordetermination. In Shanthi Chandrasekeram's case (Supra), in the courseof hearing of the habeas corpus applications filed by three petitioners, theCourt of Appeal considered that there was prima facie evidence of theinfringement of Articles 11, 13(1) and 13(2) of the Constitution and madethe reference to the Supreme Court. Considering the infringements referredto above, in that case, this Court held that the alleged infringement ofArticle 11 could not have been the basis of reference under Article 126(3),firstly, because there was only an assertion and no prima facie evidenceof such infringements, and secondly because there was no averment orevidence that the infringements were by a party to the habeas corpusapplications. With reference to Articles 13(1) and 13(2), the Supreme Courtheld that the detainee had been arrested in violation of Article 13(1) andhad been detained in violation of Article 13(2).
Accordingly, the notable feature in this provision is that there should beprima facie evidence of an infringement or an imminent infringement in thematter before the Court of Appeal. It would also be necessary that there isan averment or evidence that the infringements were by a party to thehabeas corpus application. A question arises at this point as to whether itis necessary that the petitioner should bring it to the notice of the Court ofAppeal of such an infringement. Article 126(3) does not refer to any suchrequirement casting the onus on the petitioner to move Court with hisapplication. Instead, what the Article professes is that, if it appears to theCourt of Appeal, that there is prima facie infringement or an imminentinfringement in terms of fundamental rights, then the Court should forthwithrefer such matter for determination by the Supreme Court. The burdentherefore lies with the Court of Appeal and it would be the duty of the Courtto decide, in the course of the hearing of a writ application, as to whetherthere is an infringement of a fundamental right in relation to the complaintmade by the petitioner.
sc
Machchavallavan vs OIC, Army Camp,'
Trincomalee and others (Bandaranayake, J.)
347
There is one other matter that I wish to state briefly. Learned StateCounsel had stated in his written submissions that “if every habeas corpusapplication, which invariably refers to the arrest and disappearance of acorpus, is to be referred to the Supreme Court in terms of Article 126(3) ofthe Constitution, it could lead to an abuse of this provision and a mockeryof justice".
It is to be borne in mind that, it is not every habeas corpus applicationthat would be referred to the Supreme Court in terms of Article 126(3) of theConstitution. Provision is made in terms of Article 126(3) for the Court of Appealto refer to the Supreme Court the writ application only when it appears tosuch Court that there is prima facie evidence of an infringementor an imminent infringement of the provisions of Chapter III or Chapter IVby a party to such application. Therefore it would not be correct to say thatall habeas corpus applications would invariably be referred to the SupremeCourt by the Court of Appeal as such reference should strictly be in termsof Article 126(3) of the Constitution. •
In the instant application, the complaint made by the appellant relatedto the arrest, detention and the subsequent disappearance of the corpora.The appellant, being the father of the corpora, had made a complaint toCivilian Information Office on 21.09.1990 giving information regarding missingpersons (P2). In that, the appellant had stated that on 06.07.1990, theArmy Officers at Linga Nagar took two of his sons, referred to in his appeal,into custody along with him and several others and later they were takento the Plantain Point Army Camp at Trincomalee. According to theappellant, he was released with two others around 5.00 p.m. in the evening.The appellant had stated in the information sheet that his sons were notreleased at any stage and that on inquiring from the Plantain Point ArmyCamp he was informed that his sons are not in the said Army Camp. Theappellant had also sent a letter to His Excellency the President on
informing His Excellency the disappearance of his sons. Inthis communique (P5) the appellant had described how they were arrestedon 06.07.1990. According to him the corpora and the appellant were athome on 06.07.1990 when there was a cordon and search operation around6.00 a.m. Thereafter they were taken to Palaiyoothu College until thearrival of the Commander. The appellant had stated that the Grama Niladhariof the area had taken down the details of the persons who were so arrestedand a copy of that document was given to the Commander. Thereafter the
3 4 S
Sri Lanka Law Reports
(2005) 1 Sri L. R.
Army personnel took all of them to the Plantain Point Army Camp. Theappellant and two others were released around 5.00 p.m. on the sameday, but not the corpora. The appellant had repeated the aforementioneddetails in a statement made to the Police Station, Trincomalee on09.12.1992 (P1).
The appellant had cited the Officer-in-Charge of the Army Camp atPlantain Point Trincomalee as the 1st respondent in his appeal. At thetime the Rule Nisi was issued on the 1st respondent, requiring him tobring up the bodies of the corpora before the Court of Appeal on 17.05.2001,he had filed an affidavit before the Court of Appeal on 15.05.2001. In thathe had averred that he was not the Commanding Officer of the PlantainPoint Army Camp during the time material to this application claimed bythe Rule Nisi, but only the Officer-in-Charge of the Military Police Sectionof the said Camp during the said period. In a further affidavit filed on04.10.2001, Major Channa Etipola averred that, at the time material to thiscomplaint, he was only a Lieutenant attached to the Plantain Point ArmyCamp and the late Brigadier C. L. Wijeyaratne functioned as theCommanding Officer. He further averred that Plantain Point Army Campwas the Headquarters of the 22nd Brigade of the Sri Lanka Army and thatthere were two major units at the said Plantain Point Army Camp, namely,the Operational Staff and the Logistic/Administrative Staff and the MilitaryPolice Camps had come under the supervision of the latter. He had furtheraverred that as a Military Police Officer he has no authority whatsoever toarrest civilians under any circumstances and hence he had not arrestedthe corpora referred to in this appeal.
It is clear on the evidence that the corpora were arrested and detained inor around 06.07.1990 at a cordon and search operation. According to theappellant this was carried out by the Plantain Point Army Camp. The 1strespondent denies any knowledge or involvement in such an arrest but admitsthat he was attached to the Plantain Point Army Camp situated atTrincomalee. He had further submitted that the said camp consisted of theHeadquarters of the 22nd Brigade of the Sri Lanka Army, the OperationalUnit and the Logistic/Administration Branch. Therefore on an analysis of thematerial placed before this Court, although the 1 st respondent may not beresponsible for the arrest and detention of the corpora and/or that he has noknowledge whatsoever with regard to the arrest and detention, there is apossibility in all probabilities that the corpora would have been-arrested anddetained by officers in one or both of the other units of the said Camp. This
sc
Machchavallavan vs OIC, Army Camp,
Trincomalee and others (Bandaranayake. J.)
349
fact is clearly supported by the information given in the complaint made tothe Trincomalee Police (PT), complaint made in Colombo to the Civilian. Information Office (P2) and in the letter sent to His Excellency the Presidentin September 1990 (P5). It is inconceivable that civilians would have beenpermitted to stay in the Plantain Point Army Camp without the permission/knowledge of the Army authorities, especially at the relevant time wherehostilities were high. Therefore it is reasonable to conclude that the corporawere kept in the Army Camp with the knowledge and connivance ofthe Army officers. Hence Army authorities are responsible toaccount for the whereabouts of the two sons of the appellant. In suchcircumstances, would it be correct to say that the appellant had no rightto move the Court for grant of writ of habeas corpus? The writ of habeascorpus is a writ of remedial nature and is available as a remedy in allcases of wrongful deprivation of personaly liberty. The basis of the writ ofhabeas corpus is the illegal detention or imprisonment, which is incapableof legal justification and the appellant’s complaint involved the liberty ofthe corpora.
In the instant application, the complaint made by the petitioner relatedto the arrest, detention and the subsequent disappearance of the corpora.Whilst Articles 13(1) and 13(2) refer to the arrest and detention of a personaccording to the applicable procedure laid down by law, Article 13(4) of theConstitution states that no person shall be punished with death orimprisonment except by order of a competent court, made in accordancewith procedure established by law. The aforementioned Articles arecontained in Chapter III which deals with fundamental rights and falls withinthe category which speaks of freedom from arbitrary arrest, detention andpunishment and prohibition of retroactive penal legislation.
It is therefore evident that the appellant was complaining of aninfringement of the provisions contained in Chapter III of the Constitution.Moreover, it is to be borne in mind that the complaint was against theofficers attached to the Plantain Point Army Camp who had carried outthe cordon and search operation. Therefore the allegations were madeagainst the State which involved the liberty of the corpora.
According to the appellant, the corpora and others along with him weretaken to the Plantain Point Army Camp. Although the appellant and someothers were released later, he had not thereafter heard anything about hissons. In fact he had referred to this position in all his communications
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regarding the arrest, detention and disappearance of his sons and thereforeit was not factually correct for the Court of Appeal to have stated thatnearly 6 years after the alleged incident the appellant had at the inquirywhilst giving evidence had stated for the first time that he too was takeninto custody. The Court of Appeal had taken the view that the appellant'sevidence must fail on the promptness test.
The Chief Magistrate, Colombo who held the inquiry on the referencemade by the Court of Appeal, in his report dated 19.11.1996 (P7) hasclearly stated that the appellant had submitted that the corpora werearrested by the Plantain Point Army Camp. A witness by the name TitusJesudasan, had said that he too was taken to the Plantain Point ArmyCamp and had also stated that the said operation was conducted by oneColonel Tennakoon and that one Ajith Kumara had questioned them at thetime of the arrest. The 1 st respondent of course has denied any involvement.Based on the evidence of the 1 st respondent the learned Chief Magistratehad come to the finding that 1 st to 3rd respondents are not responsible forthe disappearance of the corpora.
Considering the evidence of Titus Jesudasan referred to by the learnedChief Magistrate, Colombo in his report, I am of the view that the saidwitness has corroborated the position taken up by the appellant.
In the light of the above position, it is abundantly clearthat the appellant'smain ground was that of the disappearance of his sons. Considering thetotality of the circumstances of this appeal, the only inference that couldbe drawn is that both of them must have met an unnatural death. Primafacie such deaths would have to be taken as offences of murder and theimportant fact would be not to cast any aspersions on as to who hadcommitted the crime, but as a first step to come to the conclusion that thecorpora are not alive and that they have met unnatural deaths. In fact inSebastian M. Hongray v. Union of India2 where a writ of habeas corpuswas issued to produce C. Daniel and C. Paul who were taken to PhungreiCamp by the Jawans of 21st Sikh Regiment, Desai J. referring to thepersons who were missing stated that,
“Prima facie, it would be an offence of murderIt is not necessary
to start casting a doubt on anyone or any particular person. But primafacie there is material on record to reach an affirmative conclusion thatboth Shri C. Daniel and Shri C. Paul are not alive and have met anunnatural death.”
SC■ Machchavallavan vs OIC, Army Camp,351
Trincomalee and others (Bandaranayake, J.)
In the aforesaid circumstances it is beyond doubt that at the time theCourt of Appeal majj^he order, there was prima facie evidence of aninfringement of the fundamental rights of the corpora at least in terms ofArticle 13(4) of the Constitution caused by some State Officers. Article13(4) of the Constitution does not deal directly with right to life, but statesthat,
“No person shall be punished with death or imprisonment except byorder of a competent court, made in accordance with procedureestablished by law. The arrest, holding in custody,'detention or otherdeprivation of personal liberty of a person pending investigation or trialshall not constitute punishment.”
Considering the contents of Article 13(4), this Court has taken theposition that no person should be punished with death or imprisonmentexcept by an order of a competent court. Further, it has been decided inKotabadu Durage Sriyani Silva v. Chanaka Iddamalgoda (3) and 4 and inRani Fernando’s case(5) that if there is no order from Court no personshould be punished with death and unless and otherwise such an order ismade by a competent court, any person has a right to live. AccordinglyArticle 13(4) of the Constitution has been interpreted to mean that a personhas a right to live unless a competent court orders otherwise.
In such circumstances it was apparent that there was an alleged violationof Article 13(4) of the Constitution.
Therefore, for the reasons aforementioned, I hold thatthe Court of Appealshould have referred the entire matter for determination by the SupremeCourt in terms of Article 126(3) of the Constitution.
2. Whether the 1 st respondent and/or the State are liable for the arrestand the subsequent presumed death of the corpus
The appellant stated that his sons were taken into custody on 06.07.1990by the Plantain Point Army in the course of a cordon and search operation.According to the appellant after the arrest, his sons were detained in thePlantain Point Army Camp and since then he has not received anyinformation of his sons.
2 – CM5607
352Sri Lanka Law Repoiis(2005) 1 Sri L. R.
Learned Counsel for the 1 st respondent made several submissions toindicate that the 1st respondent is not responsible for the allegeddisappearance of the corpora and that the appeal should be dismissed.
In support of his submissions, learned Counsel for the 1 st respondenthas relied upon the following positions :
The appellant in his original application for the writ of habeascorpus did not take up the question of violation of his fundamentalrights in terms of Article 13(4) of the Constitution ; and
The appellant has not made the complaint within the stipulatedtime limit of one month from the disappearance of his children. ;
(a) The appellant in his original application for the writ of habeas corpusdid not take uo the question of violation of his fundamental rights interms of Article 13(4) of the Constitution :
The appellant, it is to be borne in mind, preferred an application for awrit of habeas corpus to the Court of Appeal, on the basis of the arrest,detention and the subsequent disappearance of his two children. Theappellant therefore did not come before the Court of Appeal and later tothe Supreme Court on the basis of an infringement of Article 13(4) of theConstitution. Whilst the appellant’s chief and only contention was on hisapplication for a writ of habeas corpus, it was this Court which had grantedleave on the question of an infringement in terms of Article 13(4) of theConstitution. The Supreme Court has the jurisdiction to look into such aquestion in terms of Article 126(3) of the Constitution. In terms of Article126(3), it is obvious that the purpose of that Article was to prevent personsfrom filing different applications in the Supreme Court and the Court ofAppeal on the same transaction. Referring to the purpose of the provisionsin Article 126, Justice Mark Fernando, in Shanthi Chandrasekeram v. 0.B. Wijetunga and others (Supra) stated that,
"Since those provisions do not permit the joinder of such claims, theaggrieved party would have to institute two different proceedings, in twodifferent courts, in respect of virtually identical ‘causes of action' arisingfrom the same transaction unless there is express provision permittingjoinder. The prevention in such circumstances, of a multiplicity of suits(with their known concomitant) is the object of Article 126(3).”
SCMachchavallavan vs OIC, Army – Camp, -353
Trincomalee and others (Bandaranayake, J.)
It would therefore not be correct for the 1 st respondent to take up theposition that, as the appellant has not taken up the infringement of Article13(4) at the initial stage, that now he cannot urge such violation before theSupreme Court. In fact, it is also to be .borne in mind that, the appellantcould not have combined a violation of Article 13(4) with an application fora writ of habeas corpus in the Court of Appeal and in the event he hadproposed for an application in terms of Article 13(4) of-the Constitution, heshould have made the application to the Supreme Court and not to theCourt of Appeal and in any event, the sole purpose of Article 126(3) of theConstitution is to avoid such multiplicity of actions and therefore the 1strespondent cannot now take up the position that the appellant has failedto urge the infringement in terms of Article 13(4) of the Constitution. On acareful consideration of the provisions of Article 126(3), I hold that, it is theduty of the Court of Appeal to decide whether there is prima facie evidenceof an infringement or an imminent infringement of the provisions of theArticles contained in the Chapter on fundamental rights of the Constitutionand if so to refer such matter for determination by the Supreme Court. Insuch circumstances, there is no requirement or a need for the appellant totake up the question of an infringement of Article 13(4) of the Constitutionin his application for a writ of habeas corpus in the Court of Appeal.
(b) The appellant has not made the complaint within the stipulated timelimit of one month from the disappearance of his children.
Learned Counsel for the 1 st respondent submitted that, there was nobasis on which the Court of Appeal could have referred the appellant’sapplication in terms of Article 126(3) of the Constitution as he has notcomplained within one month since the alleged incident as stipulated inArticle 126(2) of the Constitution. His position is that the appellant’s childrenwere alleged to have been removed from their residence and were taken toPlantain Point Army Camp in June or July 1990, whereas his applicationpraying for mandates in the nature of writs of habeas corpus were filedonly in June 1994.
Learned Counsel for the 1 st respondent considered that, in a long lineof cases, the Supreme Court has consistently held that the time limit ofone month stipulated in Article 126(2) of the Constitution is mandatory. Hetook up the view that the intention of the legislature with regard to themandatory time limit specified in Article 126(2) of the Constitution is re-emphasized in section 13(1) of the Human Rights Commission of Sri LankaAct, No. 21 of 1996 which states that,
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“When a complaint is made by an aggrieved party in terms of section14 to the Commission, within one month of the alleged infringement orimminent infringement of a fundamental right by executive oradministrative action, the period within which the inquiry into suchcomplaint is pending before the Commission shall not be taken intoaccount in computing the period of one month within which an applicationmay be made to the Supreme Court by such person in terms of Article126(2) of the Constitution.”
Learned Counsel for the 1 st respondent also drew our attention to thedecision in Shanthi Chandrasekeram v. D. B. Wijetunga and others (Supra)where he submitted that, the detainees were arrested on or about 03.07.1991and that the applications praying for the writs of habeas corpus were filedin August 1991.
Admittedly, the corpora were taken into custody in July 1990 and theappellant had come before the Court of Appeal only in June 1994. Theappellant had stated in his petition that he had made inquiries and hadsearched for his sons with government and non governmental organizations(P1-P5).
Habeas corpus, unlike other prerogative orders still remains as a writ. Itis not discretionary and therefore it cannot be denied because there maybe some alternative remedy. As pointed out by Wade (Administrative Law,9th Edition, 2004, pg. 594).
“The writ may be applied for by any prisoner, or by anyone acting onhis behalf, without regard to nationality, since every person within thejurisdiction enjoys the equal protection of our laws'. It may be directedagainst the gaoler, often the appropriate prison governor, or against theauthority ordering the detention, e.g. the Home Secretary. It is notdiscretionary, and it cannot therefore be denied because there may besome alternative remedy. There is no time limit. The defence will notalways be statutory."
It is also to be borne in mind that the writ of habeas corpus potentiallyhas a very wide scope as it is directly linked to the liberty of citizens.Blackstone referring to the writ of habeas corpus, had stated that,(Commentaries, BK III, 12th Edition, 1794, pg. 131):
SCMachchavallavan vs O/C, Army Camp,355
Trincomalee and others (Bandaranayake, J.)
“the king is at all times entitled to have an account, why the
liberty of any of his subjects is restrained, wherever that restraint may
be inflicted."
Although the learned Counsel for the 1 st respondent had referred to theprovision in Article 126(2) of the Constitution, the appellant had not movedthe Court in terms of that provision. It is this Court which had grantedSpecial Leave to Appeal to consider the question of any violation in respectof Article 13(4) of the Constitution. Therefore it would not be correct to say,that the appellant had to strictly adhere to the mandatory time limit stipulatedin Article 126(2). The application made by the appellant was on the basisof obtaining a writ of habeas corpus and was not in terms of the fundamentalrights jurisdiction of the Supreme Court. Although I am in completeagreement that a long line of cases of this Court had decided that anapplication on the basis of obtaining relief in terms of any infringement orimminent infringement of his fundamental rights will have to be filed within30 days of the alleged infringement, subject to a few exceptions, it is myview that this condition does not apply to the appellant in this case as hehad moved the Court of Appeal on an entirely a different premise. In suchcircumstances it would not be relevant to consider the application of Article126 in relation to the time bar with regard to this appeal.
The next question that has to be gone into is whether the 1 st respondentand or the State are liable for the arrest and the subsequent presumeddeath of the corpora.
The appellant’s position was that in or around 06.07.1990, two of hissons were taken into custody by the Army Officers attached to the PlantainPoint Army Camp. The appellant had made a complaint to the TrincomaleePolice on 09.12.1992 about the said arrest. In the said complaint and inthe subsequent complaints made by the appellant with regard to the arrestof his sons he had mentioned that his sons were arrested by the officersattached to Plantain Point Army Camp. However, the appellant had madeno direct allegation against the 1 st respondent to the effect that he and healone is responsible for the arrest of his sons. The appellant's contentionwas that the corpora were arrested by the officials of the Plantain PointArmy Camp and they were last seen at the said Camp. This position wassubstantiated by witness Jesudasan who was also arrested at the timethe corpora were arrested, but released after a few days of the arrest.
356Sri Lanka Law Re'poris(2005) 1 Sri L. R.
Habeas corpus could be applied for and granted in many occasionssuch as when there is an excessive delay in bringing a prisoner up for trial(R v Brixton Prison Governor, ex-parte Walsh,s>) or in executing an orderfor his deportation (Rv Durham Prison Governor, ex-parte Hardial Singhm).However, it is to borne in mind that the writ has served and has a remarkablereputation as a bulwark of personal liberty' although it has failed to measureupto the standards of the European Convention on Human Rights (Wade,Administrative Law, 9th Edition pg. 596).
In such circumstances the question arises as to the burden of proof inhabeas corpus cases. Considering this question Wade (Supra) is of theview that it is the responsibility of the detaining authority to give positiveevidence of the circumstances. As pointed out by Wade (Supra at pgs.294-295):
“In cases of habeas corpus there is a principle which is one of thepillars of liberty’, that in English Law every imprisonment is prima facieunlawful and that it is for a person directing imprisonment to justify hisact.
Accordingly the detaining authority must be able to give positive evidencethat it has fulfilled every legal condition expressly required by statement,
even in the absence of contrary evidence from the prisonerThis
rule is indeed an example of the principle slated at the outset, sinceunjustified detention is trespass to the person. It is particularly importantthat the principle should be preserved where personal liberty is at stake".
The existence of the Plantain Point Army Camp is not disputed by the 1 stand 4th respondents and the appellant as well as witness Jesudasan refers tothe cordon and search operation conducted by the said Army Camp.
Although the 1st respondent denies his involvement with such anoperation, he himself has stated that Plantain Point Army Camp was theHeadquarters of the 22nd Brigade of the Sri Lanka Army and moreoverthat there were two major units at the said camp which consisted of thebranches dealing with the operations and administration of the area. TheMilitary Police Camps had come under the supervision of the latter. Hehas also admitted that he had no authority to arrest civilians under anycircumstances and that there were other high ranking officers in charge of
SCMachc'havallavan vs OIC, Amy Camp, '357
Trincomalee and others (BandaranayaRe, J.)
the Army Camp. All the documents filed by the appellant give a clearindication that he had been referring to the Plantain Point Army Camp asthe place from which the cordon and search operation was conducted, thearrests made and was the place where the corpora as well as the appellant(for a short period) were detained. As has been pointed out earlier, it isreasonable to conclude that corpora were kept.in the Army Camp with theknowledge and the connivance of the Army officers. In such circumstances,it was the duty of the Commanding Officer who had the authority to arrestand detain, to discharge the burden as to what took place on or about.03.07.1991. As pointed out by Wade, one cannot ignore the cardinalprinciple laid down in English Law with regard to habeas corpus applicationsthat every imprisonment is prima facie unlawful and that it is for a persondirecting imprisonment to justify his act. Since there is no evidence againstthe 1st respondent I cast no liability on him, but I hold that the State isresponsible for the disappearance of the corpora while they were in detentionat the Army Camp and the subsequent presumed death.
For the aforementioned reasons, I answer both questions raised by thisCourt at the time Special Leave to Appeal was granted in the affirmative.The appeal is allowed and the judgment of the Court of Appeal dated
01.07.2003 is set aside.
On a consideration of the circumstances referred to above, this Courtmust consider the kind of relief that should be granted to the appellant. Ina similar situation, Desai J. in Sebastian M. Hongray v Union of India(Supra) had held that exemplary costs from the respondents are permissiblein such cases. As we have held that the 1 st respondent is not personallyresponsible, there cannot be any exemplary costs payable to the appellant.However, as has been referred to earlier, the Commanding Officer has theauthority to arrest and to detain and was in overall charge of suchoperations. In the circumstances, the State is responsible for theinfringement of the fundamental rights of the corpora governed in terms ofArticle 13(4) of the Constitution, which rights have accrued to and/ordevolved upon the appellant. It is to be borne in mind that respect for therights of individuals is the true bastion of democracy and State has to takesteps to redress the infringement caused by its officers to the corpora. Itherefore direct the State to pay a sum of Rs. 150,000 each for the twosons of the appellant, who had disappeared in detention as compensationand costs.
35SSri Lanka Lav.' Repons(2005) 1 Sri L. R.
Thus Rs. 300,000, being the total amount to be paid to the appellantwithin 3 months from today.
UDALAGAMA, J. — I agree.
FERNANDO, J. — I agree.
Relief granted.