NAMASIVAYAM v. GUNAWARDENA

034-SLLR-SLLR-1989-V-1-NAMASIVAYAM-v.-GUNAWARDENA.pdf


394
Sri Lanka Law Reports
(198911 Sn L. R.
NAMASIVAYAM
V.
GUNAWARDENA
SUPREME COURT
SHARVANANDA. C.J., ATUKORALE. J. AND HAG. DE SILVA. J.
S. p. APPLICATION NO. 1 66/86..
MAY 1 8 AND JUNE 2 AND 22. 1 987 .
Fundamental Rights — Illegal arrest and detention — Torture — Articles 11.
13(1 f and (2). 17 and 126(1) and (2). 155(5) — Section 4(a) and (b);of thePublic Security Ordinance. Regulations■ 18 and 19 of the Emergency(Miscellaneous) Provisions and Powers Regulations — Supreme Court Rules of1978. rule 65(4).
The'petitioner was travelling in a bus at Nawala’pitiya when he was arrested bythe 3rd respondent. He was not informed the reason for his arrest. He was takento a security personnel eanip and kept there and repeatedly assaulted by the 3rd
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respondent and other security personnel. He was forced to make a staterrYent on '*the lines suggested by the 3rd respondent. He was not released after his;statement as promised but continued to be kept in unlawful detention.
The respondent said the petitioner was arrested because he was stated to be ■acquainted with the facts of a case of robbery'of a gun from Rozella Farm whichwas being investigated. He wanted the petitioner to accompany ’ him to theGinigathena Police Station.•■
A preliminary objection was taken on behalf of the respondents that theapplication was filed out of time. On behalf of the petitioner it was contendedthat the arrest was illegal, the detention orders. wefe bad as-the Emergency-hadlapsed during their currency and the affidavits of 1. 2’and.3 respondents .hadbeen filed out of time in contravention of'Rule 65(4) of therSupreme Court-Rules'of 1978. ■
Held:—
Because the remedy under Article 126 is guaranteed by. the .Constitution.Article 126(2) must be given a generous and purposive construction. A literalinterpretation, of the period of limitation will defeat the petitioner's right to his ■Constitutional remedy. To make the remedy under Article f 26 meaningful to the.-.applicant, the one month prescribed by Article 1 26(2) should be .calculated from ■the time that he is under no restraint. If this liberal construction iS'not adoptedfor petitions, under Article 126(2) the petitioner's right to-his constitutionalremedy under Article 126 can. turn out to be illusory. It could be renderednugatory or frustrated by. continued detention. The petitioner.was arrested on28,07.86 and in Police custody. He was thereafter in detention:fromT04;.08:86even when he filed his application on 03.10.1 986. under successive detentionorders. The-respondents.admit the taking of the petitioner on 28,07.86 but statehe was released and„re-arrested on 04.08.86' and.thereafter kept in detention.The.attorney-at:law. retained by the,,petit'ioner's wife’was not able'to intervievy'thepetitioner. The one month prescfibed'-by Article 126(2) applies to'the case of! theapplicant having free access to his lawyers and to the Supreme Court. Hehce.jthe.'petitioner's delayed application for relief under Article 126 should not berejected-. -’
-The .petitioner's complaint of torture is1' not' corroborated By medical '-
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evidence and therefore'the evidence is insufficient' to establish violation Under'Article 1 1.
– The explanation of the 3rd respondent affords no, justification for the arrest.of the-petitioner on .28,07.86. There.was therefore an infringement -of Article
13(1) on the arrest and.failure to inform the arrestee of.the reasons. .
' Under Regulation 19(-2)-detention can extend:upito'90 days after which.the
pe'rson'detained.has.to be.released unless be is; produced, before the expiry ofihe period before a Court of competent jurisdiction:'.
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Under Regulation .19(2). Article 155(5) and section 4(a) & (bj of the PublicSecurity Ordinance read together, the validity of a'detention order made under aRegulation since lapsed is kept alive. The expiry of the Emergency Regulationsdoes, not affect the detention order under which the petitioner was held.
The 1.2.3 respondents filed their objections after the 7 days from date of
service of a notice as stipulated by Rule 65(4) of.the Supreme Court Rules 1978but the Chief Justice had granted them an extension on an application made bythem.'
The Chief Justice here exercised a discretion founded on the inherent right ofthe Supreme Court to do justice. As. a matter of administrative arrangement theChief Justice deals with applications for extended time. Affidavits and objectionsfiled within such extended time could be admitted.
Application for infringement of Fundamental Rights under Articles 11. 13(1)and (2).
Jayampathy Wickremaratne with M. S. M. Suhaid. M.'H. M. Salman and HemasiriWithanachchi for Petitioner.
Nihal Jayasinghe SSC for Attorney-General.
Petitioner present in person produced from Remand Prison.
Cur. adv. vuh
September-9. 198.7.
SHARVANANDA, (C.J:
■ By his petition ,,(dated 3rd October 1986 the Petitionercomplained to.this.Court that the fundamental rights guaranteedto him -by Articles-. 1 1. .1 3 (1) and 13(2) had been violated by theRespondents. ■
In this petition, the Petitioner has stated that: on 28.7.86 while. he was travelling, in- a C.T.B. bus on. his way-to Nawalapit.iya, hewas arrested By. Police. Sgt. Najibdeen. the'3rd Respondent: he' was not informed the reason for his arrest, he was taken to asecurity personnel camp and kept there till 4th August 1 986 andduring this period he was repeatedly assaulted-by the' 3rd;Respondent arid other security personnel/ He was told that he. was a terrorist belonging to an organisation whi'ch they referredto '.asiil. E: L.:E. =. o.r; T a ra i l.-r. Eel a m- Liberation. Extremists.;, though hedenied-.the-allegation they continued to=> assault, him until he
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agreed to make a statement on the lines' suggested by the 3rdRespondent. On 4.8.86 he wa.s taken to the Police Station Hattonand produced before the. 2nd.Respondent who was-the HeadQuarters Inspector of the Hatton Police; as,-he was unabje towithstand any more physical assault and as he was promised thathe would be released, he made a statement to the 2ndRespondent on the lines .suggested by the 3rd Respondent.. Hewas not released after his statement as promised; he, wascontinued to be kept in unlawful detention. On 3.1.8.86 he wastaken to.the Gampola Police Station and kept there till 5.9.86 .AtGampola Police he was compelled by 'threats to; repeat to theA.S.P.. Gampola the statement..that he'had made-earlier to the' 2nd- Respondent, He made the statement because he feared,thathe would be subjected to assault by. the 3rd Respondent andother.officers. On 5.9.86 he, was taken, bacly to.Hatton Police;Station and kept till 18.9.86. On 1.8.9.86 he. was taken .to theHatton Magistrate and .was remanded by.him indefinitely,
The Petitioner further complained that.' the Attorpey-at-Law'
' arranged by his wife to interview him was denied access to- him.by the 2nd. Respondent., ",. …. , -.
The Respondents, by. their affidavits Have denied the allegationsmade against them by the Petitioner.-Police.'Sgt. Najimudee'n. 3rdRespondent, denied having arrested the petitioner on 28.-7.86.-He has stated that on 28.7.86. I was investigating into.axase ofrobbery of gun from Rosella Farm, committed on 3.6.86. I hadreason to believe that the Petitioner was acquainted, with thefacts and circumstances relating, to the said robbery. I requestedthe Petitioner to'.accompany me to Ginigathena- Police forquestioning. At. the Police – Station he-, was questioned inconnection with this case and was released, immediately after hisstatement was recorded." The .3rd Respondent further stated .thatsubsequently he. received information .that the Petitioner wasinvolved in acts which constituted offences under the Emergency(Miscellaneous.) Provisions Powers. Regulations .and that on
he arrested the,.Petitioner in terms,of Regulation 18 atthe VVatawala Railway Station, that after having explained thecharge against him, he took the Petitioner to the Hatton PoliceStation, where he .was questioned on the information he. had;
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that the Petitioner made a statement to the 2nd Respondent inwhich he admitted that he was a member of the Tamil EelamLiberation Extremists. The 3rd Respondent has denied havingmade any inducement, threat or suggestion to the Petitioner tomake the'statement.
The 3rd Respondent further stated that on 5.8.86 the 1stRespondent who is .the Deputy Inspector General of Police.Kandy, made order authorising the detention of the Petitioner atthe Hatton Police Station for 30 days from 5.8.86. that thePetitioner was detained at the Hatton Police Station till 31stAugust 1 986 on which date he was taken to the Gampola PoliceStation, for the purpose of recording a statement by the A. ,S. P..Gampola. Recording of the statement continued from 31.8.86 till
The Petitioner was taken back to Hatton Police Station on
and was produced before the Magistrate on 18.9.86 andwas remanded'by the Magistrate. The'3rd Respondent deniedhaving told Mr. Wickremaratne. Attorney-at-Law that he hadinstructions from the 2nd Respondent not to permit any personto speak to the Petitioner. As the 2nd Respondent was away at■the time when Mr. Wickremaratne came to the Hatton Police• Station, the Probationary Sub-Inspector had asked him to obtainpermission from the A.S.P., Hatton to speak to the Petitioner. AsMr. Wickremaratne. was unable to meet the A.S.P. he went away.
The • 1 st Respondent who is. the Deputy Inspector General ofPolice. (Central Range) has filed affidavit stating that on 5.8.86 itwas brought to his notice that the Petitioner had been arrestedon suspicion, of having‘committed an offence under theEmergency Regulations. He made order on 5.8.86 authorisingthe. Hatton Police Station to be the place where the Petitionershould .be detained till 4.9.86, and that subsequently on 4.9.86he again made order-that the Petitioner be kept at that place till4.10 86.
The 2nd Respondent who is the Headquarters " Inspector.Hatton Police Station- has stated that oh 4.8.86 Petitioner wasbrought before him" .at the . Hatton Police Station, that hevoluntarily made.a statehnent to him, wherein he admitted hisinvolvement in the activities of theT.E.L.E,, that'the Petitioner was
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taken from Hatton to -Gampola on 3-1'..8.86- for furtherinvestigations by the A.S.P, Ganripdla and was^bro'ught back on
The Petitioner was kept at the Hatton. Police Station till
and was brought before the Magistrate Hatton on'
and was remanded to fiscal’s custody. He denied having
refused permission to the Attorney-at-Law to speak to thePetitioner,•'■ , • / •■ …
At the outset of the hearing Counsel for the,Attorney-Generalraised a preliminary objection that.the petition.under Article' 1 26of the .Constitution was filed out of:time.■ ,.-j:
Article 1,26 provides-that an application to the Supreme Courtpraying-.,for- relief in respect-of.,any infringement by executive or.administrative action should, be filed within one month of.the-alleged , infringement. According- to the-’Petitioner,, he .wasunlawfully-arrested on 28.7.8.6 and: was in.-breach o.f Article.1 3(1)" of the Constitution, not made-,a ware of the. reason for bisarrest, and was u.nlawfully,d'etained.from that date.,
lnvmy view. Article 1 2-6(2),postulates-a person whose freedomof movement'.is -not,lettered, by bemg kept in,'custody, or.;detention, wh,ofhas free access to ,the Supreme,Cou,rf :tp-apply for,relief under .Article 126 of the :Cpnstitu’tion.iV'Accordi:ng , to thePetitioner from the-date of his arrest on 28,.7.86::|to. the'time ofthe filing of, the,.petition on, 3,. 1 Q-.-8,6; he was in.-detention,-And-hence he did not-haye free acc.ess tp the Supreme Court or to his .•law^erjo; be. able'to fake proceedings. Within, the on.e monthstipulated by Article ,1 26(2). A'dimittedly, ther Petitioner was in'detention- from 4-8-8,6. to,,the datp,; ;o,f his.rfil,in,g the' presentapplication.
Counsel stated that even, though he. was nipt.ip. .a position tomake his application.-his wife coul.d have, on "his behalf, madethe application within.the time, /According to,the Petitioner.hiswife was'.strictly enjoined by ithe Policeyhot to discuss with thePetitioner any matter pertaining, to the detention, and.that,he. wasnot able ;tp' discpss. anything .with pis. wife. >elatirpg' to his,detention or., arrest bec.ause of the, presence .of, a Police Officerwhenever ,his wife,, visited-, him. Further. Mr. Wickfemaratne.;
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Attorney-at-law who was appointed by Petitioner's wife to'interview the Petitioner was not able td have any conference withthe Petitioner. In any event the Petitioner cannot suffer for thefailure of his wife to take steps under Article 1 26. It cannot begainsaid that his detention prevented him from takingproceedings- within one -month prescribed by Article. 126. Tomake the remedy under Article 1 26 meaningful to the applic.ant.the one month prescribed by Article 126(2) should be calculatedfrom the time that he is under no restraint. If this liberalconstruction is not adopted for Petitions under Article 126(2) thePetitioner's right to his constitutional-remedy under Article 126can turn out to be illusory. It could-be rendered nugatory orfrustrated^ by continued detention. According to the'facts.in thiscase, the Petitioner was unlawfully arrested and wa's notinformed', of the reason for his arrest on ' 28.7.86.' TheRespondents admit that the Petitioner has been in Retention from4'.8.86 and continued to be in detention even on 3.10.1986when he filed the present application.. The Respondents admitthe incident of 28.7:86. but' state that he was re-arrested on
and thereafter kept in detention. Admittedly the Attorney-at-Law’ retained by Petitioner s wife wasnot able to interview thePetitioner, in the circumstances, the Petitioner was thwarted fromfiling his petition-under Article 1 26. within one month in terms ofthat Article. A literal interpretation of the period of limitation willdefeat'the Petitioner's right to his constitutional remedy. It issignificant that Article 1 7 which provides that every person shallbe entitled.to apply to the Supreme Court as,provided by Article.1 26 in respectoTthe infringement by executive or administrativeaction of!his:furidarinental right: is itself included in the:Chapteron fundamental rights. Because theVemedy under Article 1 26 isthus guaranteed by the Constitution, a duty is imposed upon theSupreme Court to protect fundamental rights and ensure theirvindication. Hence Article "1 26(2)' should be given a. generousand-purposive construction:.The one month prescribed by Article126(2) for making an Application for relief by a person forinfraction :of his .fundamental right applies to the case of theapplicant having free access to his lawyer and'’to the SuprefneCourt:'Hence,’if the Petitioner was. obstructed by reason of his' detention ■’froiti 'having a‘cc'ess-.td his lawyer and'to the SupremeCourt and thus'prevented Trdm making his1 application within'the
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■ one month of the infraction complained of, his■-ldelayedapplication for relief under Article 1 26 should' not be ruled out, ifhe made his. application as soon as he was free from thatconstraint to make the application.-
•We therefore overruled the1 preliminary .objection-raise'd by.State Counsel.■•-/ •
On the question whether the- petitioner was-'subject to crueltreatment – or torture, petitioner's averments.'… stands,uncorroborated by'any.medical evidence and has been.dehie’d by-the Respondents. The evidence is not sufficient for-us to hold •that there had been- any violation -of Article 11. .’of theConstitution.
u-
The Petitioner states that.he was arrested on"'28.7.86 wheri.hewas travelling in a bus, by the. 3rd Respondent artd' that he vyasnot informed of the reason of 'the arrest. The 3rd. Respondent- in'his affidavit admitted the incident but stated triat'he did noTafrestthe petitioner. According to him he only required the petitioner toaccompany him to the dinigathena Police'Station-for questioningand released, him after recording the statement at. the station. Ifhis, action, constituted-an arrest in the'legal sense, implicit in the3rd Respondent's explanation is; the admission ;that,,he:;did not.,give any reason to the Petitioner Jor his arrest. In my view whenthe 3rd Respondent required the-Petitioner to accompany him tothe Police. Station and. took hirm-to .the Police Station; thePetitioner: was in law; arrested, by ,.the 3rd ..Respondent. .The .Petitionenwas prevented by .the action of the. 3rd, Respondent vfrom proceeding with his journey in the bus. The, Petitioner w.as .deprived <of his liberty to go .where he pleased. It was notnecessary.that there should.have been. any.actual’use o.Oorce;threat of .force used to- procure the Petitioner's submission wassufficient. ’Xhe • Petitioner-,did ' not go.-to the Police Stationvoluntarily,.^He^was-taken/to the Police by the, 3rd Respondent, Inmy. view the. 3rd Respondent s action of arresting the Petitionerand-not informing him the reasons .for his arrest violated thePetitioner's fundamental- rights warranted' by Article .1-30) of theConstitution.-.The, liberty’.-of; an individual-is- a matter -of greatconstitutional- importance. This liberty-'should/- nop be interfered
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with, whatever the status of tha.t individual be. arbitrarily orwithout legal justification. The 3rd Respondent does not pleadthat he had any reasonable suspicion that the Petitioner hadcommitted' any cognizable offence when he arrested thepetitioner on 28.7.86. In his affidavit he states that since he hadreason to believe that the Petitioner was acquainted vyith thefacts and. circumstances- relating to the robbery of a gun atRozella Farm. Rozella. he required the Petitioner to accompanyhim to the Ginigathena Police Station. In my view the explanationof the 3rd Respondent affords no justification for his arrest of thepetitioner on that date.
On, the question of the legality of the detention complained ofthe Respondents state that they took action under Emergency’Regulations and were holding the Petitioner in detention from
until the Magistrate made order remanding the Petitionerto fiscal custody. They state that they had a reasonable suspicionthat the petitioner was involved in the activities of the T.E.L.E.Though the Respondents have not placed before this Court anymaterial to justify their suspicion; yet it cannot be said that in theconditions prevailing- in the country their suspicion was notreasonable. '
Counsel for the Petitioner submitted that the detention order'A' made oh 5.8.1986 under the Emergency Regulations dated
was valid only upto 18.8.86. The said regulations werein. operation for a period of one month from the date of themaking'thereof and hence'were valid only till 18.8.86. Hesubmitted that a new detention order had to be made in'terms ofthe new set of regulations to len.d validity to.the detention of thepetitioner. Regulation 19(2) provides that a person detained inpursuance of the provisions of regulation 18 … may be sodetained fora period: not exceeding ninety days reckoned fromdate-of his arrest under the regulation and shall at the end of theperiod be released by the officer in charge of that place unlesssuch.person has been produced by such officer before the expiryof that period before a Court of competent jurisdiction.
Article i.55(5) of the Constitution provides that —
"Where the provisions of 'any law relating to public
security' have been brought into operation by the making of
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Namasivayam v. Gunawarderia ISharvananda. C. J.j403
a Proclamation under such law.. (the Public. SecurityOrdinance), such Proclamation .shall, subject- to theprovisions of Article 1 55(6). be in-operation for a 'period ofone month from the;date of the-making thereof, but without-prejudice to the earlier revocation of'such Proclamation or.to the making of a further Prodamatioriat or before.the endof the period."■■ . ■
Section 4 of the Public Security Ordinance-provides; iriter alia,that—,
. "-the ' expiry, of -revocation- ..of any Proclamation Undersection 2 of the Public. Security. Ordinance shall not affect'or be deemed to have affected .—,
‘ (a) the past-operation of any thing duly done or- suffered to■be done under Part II :of–the- Ordinance;' while, that. Part:
–was in operation:r'.- : ■
(b) any offence committed, or any right, liberty or penalty, acquired or incurred while that Pant was. in operation.”' • ■
<-!-:••!..:-'r -•..-,Hi
This liability to be detained -for:a-period of ninety days was thepenalty incurred by- the- Petitioner under the EmergencyRegulations current'between 18.7.,86-and' 18.8.86..The expiry ofthe'said Regulations;,- does not therefore affect the detentionorder under which .the. ^Petitioner ,wa.s, held,- In- view of theaforesaid; provisions of.the Jaw.-Ldo. not, agree with the apparentlyplausible submission of Counsel, that the detentiqpjorder cannot" survive the emergency regulation under-which it Was^rpade-.
■„■ '• ■ '•P- *'. ’i'' i v) •■M/’. *1..’• W '■
.Cotinsel, for the Petitioner.robjected^to the admission of thereception of'the-affidavits-,filed: by,-the Respondents bn , theground,.that, the,y,-were not. fil.edi yy.ithjn ..time specified by-Rule-65.(4);(2)ipi.the tSupreme Court. -Ru.lesyof if -978.- Coupsel pointed,to the mandatory, nature of-th^'f ule;apd. urged that ap.affidavit- or,objection filed, outside., the- time, stipulated by the.Ruler-i-smot- incompliance with the Rule and. shouldmot- be admitted-.
,The aforesaid .Rule 65(4) provides—.;
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"Upon leave being granted a notice of the applicationtogether with a copy of the written submissions shall begiven forthwith by the Registrar to each of the. Respondents other than the' Attorney-General, and eachsuch Respondent may. within seven days of the service of•such notice and written submissions, file counter-affidavitand counter-submissions with notice to the Petitioner. Anyfurther written submissions by any part shall be permitted' only at the discretion of the Court."
In this case notice of the Petitioner's application was servedon the Respondents on or about the 24.10.86. The AttorneyGeneral on 30.10.86 filed proxy and moved for time to fileobjections-. But the other Respondents' did not file proxy or didnot^sk for'time to file objections, within the seven days of theservice of the notice on them. On 7.VI.86. the Attorney-at-Jawfor the 1st, 2nd' and 3rd Respondents filed his proxy andmoved "as it was not possible for'the 1st. 2nd and 3rdRespondents to obtain necessary material to prepare and filecounter affidavits. I respectfully move that this Court be pleased-to grant further 2 weeks time to file counter affidavit." The ChiefJustice acceded to the request of the Respondents and grantedfurther time to file counter affidavits.
M. agree with the Counsel, for the Petitioners that if theRespondent did not file their affidavits and written submissions■within the time specified by the above Regulation, they are notentitled to claim that their affidavits and written submissionsshould be taken into-accou'nt-.. But it does not follow that thisCourt has no discretion to-grant' further time on being satisfied..that the. Respondents w'ould not be able or were not able to ■collect the -necessary data or material for such affidavits or■ written' submissions' on. an application' made to i.t by the^Respqndents.-'That discretion; isTounded on the inherent rightof • this.1 Court to do'justice.- As a matter- of administrativearrangement the ’Chief Justice-oif this -Gourt deals with suchapplications1 and grants -extended time. ■ if circumstanceswarranted grant of further time within which to file objections 'Affidavits and objections filed within suclrextended time couldbe admitted.' Since in the exercise of -the discretion, this Court
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had granted further time to the Respondents to file affidavits orsubmissions, and the Respondents'have, within the time, soallowed, filed their counter affidavits, the objection of thecounsel for the Petitioner against their admission canpot beupheld.
Though I. hold that'the Petitioner has not established that hisfundamental rights, assured to him by Article 11 .and -1-3(2). havebeen violated by the Respondents. I hold’that since the 3rdRespondent had unlawfully arrested the. Petitioner on 28.7.86and failed to inform the Petitioner the reason for his arrest the3rd Respondent had violated Petitioner's, fundamental rights,assured to him by Article 13(1), In the exercise Of the powersunder Article 126(4) of the .Constitution,' I order the State,represented in these proceedings by the Attorney-General to pay-the Petitioner Rs. 3000/- as compensation for such violation.: .
…..f '■
The Petitioner's application is allowed, to the extent indicatedabove. In the circumstances of the case, parties will bear theirown costs.
atukorale. J — I agreeH. A. G. de silva, J. — I agree.
Article 13(1) infringement.'