PADMANANTHAN v. SUB-INSPECTOR PARANAGAMA, OIC, NATIONAL INTELLIGENCE BUREA

022-SLLR-SLLR-1999-V-2-PADMANANTHAN-v.-SUB-INSPECTOR-PARANAGAMA-OIC-NATIONAL-INTELLIGENCE-BUREA.pdf


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Padmanathan v. Sub-Inspector Paranagama,
QIC, NIB, Vavuhiya and Others
225
PADMANATHAN
v.SUB-INSPECTOR PARANAGAMA,
OIC, NATIONAL INTELLIGENCE BUREAU,VAVUNIYA AND OTHERS
SUPREME COURTFERNANDO, J.,
GUNAWARDANA, J. ANDWEERASEKERA, J.
S.C. APPLICATION NO. 361/98FEBRUARY 15. 1999
Fundamental rights – Arrest and detention under the Prevention of Terrorism(Temporary Provisions) Act, No. 48 of 1979 – Sections 6 (1) and 7 (1) of theAct – Articles 13 (1) and 13 (2) of the Constitution.
The petitioner was a driver employed by the Vavuniya District Branch of the SriLanka Red Cross Society. On 29.5.98 he drove a Red Cross vehicle with threepassengers (Dr. Jayalath Jayawardena, MP, Father Alexander, a Catholic priestand Kishore, the Honorary Secretary of the Vavuniya District Branch) from Vavuniyato the Madhu Church, which was an area controlled by the Liberation Tigers ofTamil Eelam (LTTE). Dr. Jayalath Jayawardena and the priest had come toVavuniya on 29.5.98 with Father Alexander, having made prior arrangements withKishore to travel to Madhu. The next day the petitioner drove Kishore to Thunukkanito the office of one "Sudah" an LTTE official. According to Kishore he visitedThunukkani to discuss with Sudah the handing over of one Nayanajith, a soldierheld in captivity by the LTTE. Consequently, on 31.5.98 Sudah brought that soliderto Madhu Church. Thereafter, the ICRC brought him to Vavuniya. On 7.6.90, the1st respondent (SI Vavuniya) arrested the petitioner under the PTA allegedly forhaving discussions with the LTTE leaders and concealing information relating tothe murder of police officers and the collecting of explosives. The petitioner wasbrought to the CID office in Colombo and interrogated regarding his trip to Madhuwith Dr. Jayawardena. After three days in police custody he was produced beforethe Magistrate on 10.6.1998 and remanded indefinitely. No plaint was ever filedagainst him. On 28.12.1998, the Attorney-General advised the police (with copyto the Magistrate) that there was insufficient evidence to initiate proceedings.He was released from remand belatedly on 13.1.1999.
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Held:
The petitioner had not been informed of any valid reason for his arrest;and the respondent police officers did not in fact suspect (reasonably orotherwise) that he was connected with or concerned in any unlawful activityor offence under the PTA; and his arrest was violative of Article 13 (1)of the Constitution.
Per Fernando, J.
"it is far more likely that the petitioner had really been arrested forextraneous reason – in the hope that something might turn up whichincriminated Dr. Jayawardena.'
A lawful arrest under section 6 (1) of the PTA is a condition precedentto entitle the police to detain a suspect for 72 hours in terms of section7 (1) of the Act. The petitioner was not duly arrested under section6 (1). Hence Article 13 (2) was infringed in two respects; non-productionbefore the nearest Magistrate and detention for three days.
Per Fernando, J.
“The human resources available to the State to detect, investigate andprosecute crime are scarce and they should have been devoted to thatpurpose rather than to the harassment of the petitioner."
The petitioner's detention on remand was subject to the discretion of theMagistrate. Hence, it did not constitute “executive or administrative' actionin respect of which, relief could be granted for infringement of the petitioner'sfundamental rights.
Cases referred to:
Jayathevan v. AG (1992) 2 Sri LR 356, 371.
Farook v. Raymond (1996) 1 Sri LR 217.
Perera v. AG (1992) 1 Sri LR 199, 247.
APPLICATION for relief for infringement of fundamental rights.
T. Marapana, PC with Anuja Premaratne for the petitioner.
P. D. Ratnayake, SC for the respondents.
Cur. adv. vult.
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Padmanathan v. Sub-Inspector Paranagama,
QIC, NIB, Vavuniya and Others
227
March 4, 1999.
FERNANDO, J.
The petitioner was a driver permanently employed, since 1.1.95, bythe Vavuniya District Branch of the Sri Lanka Red Cross Society.On 29.5.98 he drove a Red Cross vehicle, with three passengers(Dr. Jayalath Jayawardena, MP, Father Alexander, a Catholic priest,and S. Kishore, the Honorary Secretary of the Vavuniya DistrictBranch) from Vavuniya to the Madhu Church, which is in anarea controlled by the Liberation Tigers of Tamil Eelam (LTTE);Dr. Jayawardena and the priest stayed at the Madhu Church.The next day the petitioner drove Kishore to Thunukkani to the officeof one "Sudah", an LTTE official; and at Thunukkani, Kishorehad gone into Sudah's office, carrying a file, and returned sometime later, while he remained in the vehicle. He claimed that hedid not know Sudah's post, except that he was the Secretaryof Tamilchelvam; and that on previous trips made in the course ofhis duties he had met, but not spoken to Tamilchelvam, but had spokento Sudah and other LTTE members. On 30.5.98 his only contactwas with one LTTE member who had spoken to him while he wasin the vehicle. That member had disclosed that a soldier was inthe custody of the LTTE; that the International Committee of theRed Cross (ICRC) had visited him; and that he had not beenill-treated. The petitioner and Kishore then returned to MadhuChurch the same day. At about 8.00 pm on 31.5.98 he heard thatSudah had come to Madhu Church, but he did not see Sudah. Thenext day, 1.6.98, he drove the same three passengers back toVavuniya. His position was that throughout this trip he had acted onthe instructions of Kishore.
Thereafter, when the petitioner reported for work on 6.6.98, Kishoretold him that the Police wanted him to report to the CriminalInvestigation Department (CID) office at Vavuniya. He did so on 7.6.98.There he was questioned by the 1st respondent (a Sub-Inspector, CID,Colombo) at 9.30 am, and was then allowed to go. He was againasked to come in the afternoon, which he did, and was questionedby both the 1st respondent and the 2nd respondent (SP, CID), who
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was in charge of the investigation. On both occasions he came withKishore. He was arrested by the 1st respondent at 5.30 pm on 7.6.98;detained overnight at the Vavuniya Police station; brought to the CIDoffice at Colombo on 8.6.98, and kept in Police custody till 10.6.98,on which date, at 6.00 pm, he was produced on a “B” report at theresidence of the Magistrate, Colombo Fort, who remanded him in-definitely. However, no plaint was ever filed. The Attorney-Generalinformed the Police, by letter dated 28.12.98 (copies to the FortMagistrate), that there was insufficient evidence to institute proceed-ings. He was released belatedly, a fortnight later, on 13.1.99.
"The petitioner complained to this Court that his arrest anddetention were in violation of Articles 13 (1) and 13 (2). Leaveto proceed was granted on 19.6.98, the respondents were grantedtime till 31.7.98 for their objections, the petitioner two weeks thereafterfor his counter-affidavit, and the hearing was fixed for 2.10.98; certifiedcopies of the "B" report and the proceedings of 10.6.98 were calledfor from the Magistrate's Court.
DELAY AND SUPPRESSION
I must at the outset refer to the unacceptable delay on the partof the respondents in filing their objections, as well as their suppressionof material documents.
Objections were not filed by 31.7.98. By a motion dated 28.8.98an extension of time was sought till 18.9.98, "as the detailed obser-vations to prepare the objections has not been received". Objectionswere filed only on 30.9.98, with a motion stating that "due to practicalreasons the detailed observations and the documents required . . .could not be obtained from the respondents . . . and therefore theobjections . . . could not be tendered". It was impossible for counselto get instructions from the petitioner (who was still on remand) intime for the hearing fixed for 2.10.98, let alone to prepare a counter-affidavit. The Court had either to refuse to accept the respondents'objections on the ground that they had not been filed in time,or – in order to ascertain the truth – to postpone the hearing. Therebeing no cause then to doubt the reason given by the respondents,
SCPadmanathan v. Sub-Inspector Paranagama, ■
QIC, NIB, Vavuniya and Others229
the hearing was postponed for 15.2.99. After judgment was reserved,I called for the Magistrate's Court record, and that gave rise to muchdisquiet. Both counsel were allowed time to make further submissionsin writing.
Although applications for extension of time had been madeto this Court on the basis that "detailed observations" and documentshad not been received from the respondents, the original Courtrecord in this application contains a copy of a letter dated 29.7.98from the 3rd respondent (the Director, CID) to the Attorney-General,"forwarding the detailed observations of the 1st to 3rd respondents".That copy had been received in the Registry, according to thedate stamp, on 4/5.8.98. It is reasonable to assume that the originalwas received in the Attorney-General's Department at the sametime. Further, the Magistrate's Court record contains a reportby the Police, dated 7.10.98, in which it was stated that theinquiry notes and the copies of the evidence, including extracts,had been sent to the Attorney-General for advice, but that advicehad not been received; and that even on 6.10.98 an officer hadbeen sent to the Attorney-General's Department, and had beentold that advice would be sent without delay. In another reportdated 14.10.98 it was stated that the Police had been informedthat steps were being taken to forward an indictment, andthat accordingly bail was objected to. Thus, the position taken up bythe Police in the Magistrate's Court was that their observationsand the relevant documents had reached the Attorney-General inearly August, and that the delay in deciding whether the petitionershould continue to be detained was because advice had not beenreceived from the Department.
The objections filed by the respondents consisted of anaffidavit from the 1st respondent, to which were annexed copies of
three statements made by the petitioner (the first at 9.30 amon 7.6.98, the second at 4.30 pm the same day, and the third at12.10 pm on 10.6.98), (b) an "authority to investigate into offencesunder the PTA" dated 6.6.98 issued by the 2nd respondent, (c) a"B" report dated 10.6.98 signed by the 2nd respondent, (d) certainentries pertaining to a visit by the petitioner's brother on 10.6.98, and
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(e) two letters dated 10.6.98 to the petitioner's brother and the HumanRights Task Force (HRTF) notifying them of his arrest. They did notproduce copies of the complaint or statement which gave rise to theinvestigation, statements made by any other persons, and the relevantPolice notes and entries pertaining to the investigation. This was quitesurprising because the 1st respondent made it quite clear to thepetitioner at the outset that the investigation was in respect ofdiscussions between Dr. Jayalath Jayawardena, MP, and a terroristorganization: but no complaint about Dr. Jayawardena, or statementby him, was produced. Further, the petitioner's position was thathe had acted throughout on Kishore's instructions. During the oralargument we expressed surprise that no attempt had been madeto verify that position, as it then appeared that no statement hadbeen recorded from Kishore. State counsel was unable to throwany light on that matter. However, the Police report dated 7.10.98(which came to our notice only after judgment was reserved)contained summaries of statements made by seven others, includingKishore, Father Alexander, and a soldier named Kumara Nayanajith.As I shall presently show, not only does Kishore’s statement corrobo-rate and exculpate the petitioner, but the other two statementssubstantially corroborate Kishore.
On the question of delay and suppression, I must say that it isunfortunate that what the 3rd respondent wrote to the Attorney-Generalon 29.7.98, what the Police reported to the Magistrare's Court on
and what the respondents' instructing AAL represented to thisCourt, are inconsistent in material respects.
The respondents and their legal advisers owed an obligation tothe judiciary and the administration of justice to make their best effortsto obtain all material relevant to the issues before the Court, and tobring that material to the notice of the Court – and that, too, withall reasonable speed – especially because a citizen continued to bedeprived of his personal liberty. That obligation was not honoured,making it more for this Court to ascertain the truth, and causing unduedelay in reaching a decision. Unfortunately, this was by no meansthe first such instance.
SCPadmanathan v. Sub-Inspector Paranagama,
QIC, NIB, Vavunlya and Others231
PREVENTION OF TERRORISM ACT
The relevant provisions of the Prevention of Terrorism (TemporaryProvisions) Act, No. 48 of 1979, (PTA) are these:
(1) Any police officer not below the rank of Superintendentor any other police officer not below the rank of Sub-Inspectorauthorized in writing by him in that behalf may, without a warrantand with or without assistance and notwithstanding anything inany other law to the contrary –
arrest any person;
enter and search any premises;
stop and search any individual or any vehicle, vessel,train or aircraft; and
seize any document or thing,
connected with or concerned in or reasonably suspected ofbeing connected with or concerned in any unlawfulactivity . . .
(1) Any person arrested under subsection (1) of section 6 maybe kept in custody for a period not exceeding seventy-two hoursand shall, unless a detention order under section 9 has beenmade in respect of such person, be produced before a Mag-istrate before the expiry of such period and the Magistrate shall,on an application made in writing in that behalf by a police officernot below the rank of Superintendent, make order that suchperson shall be remanded until the conclusion of the trial ofsuch person:
Provided that, where the Attorney-General consents to the releaseof such person from custody before the conclusion of the trial,the Magistrate shall release such person from custody.
Where any person connected with or concerned in orreasonably suspected to be connected with or concerned in the
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commission of any offence under this Act appears or is producedbefore any Court other than in the manner referred to in sub-section (1), such Court shall order the remand of such personuntil the conclusion of the trial: provided that …" [emphasisadded].
ARREST AND DETENTION
The petitioner maintained that he was not told the reason forhis arrest. He described what happened at 5.30 pm just afterhis second statement was recorded on 7.6.98:
"… the 1st respondent received a telephone messageand thereafter the 1 st respondent informed me that a senior officerof the Police had instructed him to arrest and detain me andtherefore that he would be compelled to produce me to the VavuniyaPolice Station and detain me until he receives further instructionsfrom his senior officers."
In his affidavit, the 1st respondent stated that he arrested thepetitioner in terms of an authority, granted to him by the 2ndrespondent under section 6 (1) of the PTA, which authorised him to“perform all acts specified" in section 6 (1). He admitted the telephonecall, but failed to produce any entry regarding the fact or the contentsof that message; he also failed to specify the precise reason whichhe had communicated to the petitioner – concealing information orhaving discussions with terrorists. He claimed:
"… while I was in the process of recording a further statementof the petitioner I received a telephone call from the CriminalRecords Division (CRD). It was in reply to an inquiry that I hadmade previously in respect of Sudah, whose name transpired inthe initial statement of the petitioner. I was informed by theCRD that Sudah is a person wanted in connection with the terroristactivities of the LTTE. I state further, that I took the petitionerinto custody at 17.30 hrs having explained the reason for hisarrest …"
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Padmanathan v. Sub-Inspector Paranagama,
QIC, NIB, Vavuniya and Others
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It would seem that it was only then that the 1 st and 2nd respond-ents first became aware that Sudah was wanted, and why; if so,was it reasonable for either of them to have assumed that the .petitioner was better informed? He also asserted that:
"… the petitioner's visit to the LTTE terrorist-controlledarea of Thunukkani to meet one Sudah in the company of Kishorehad not been within the scope and course [ofl his normal duties
… according to the Sri Lanka Red Cross Society the petitioner'strip to Madhu was not within the scope and course of hisofficial duties." [emphasis added]
However, the respondents gave differing reasons for arrestin contemporaneous documents. The reason which the 1st respondentrecorded at 5.30 pm was the petitioner's failure to disclose informationconcerning the murder of Police officers, and the collection ofexplosives, guns and offensive weapons without legal authority,by LTTE terrorists. But, the "B" report filed on 10.6.98 made noreference to a failure to disclose information; it mentioned a complaintmade on 6.6.98 (not produced) and stated that the CID had credibleinformation (not disclosed) that the petitioner had taken a group ofpersons in a Red Cross vehicle to an LTTE-controlled area for adiscussion with an LTTE leader named Sudah, describing Sudah asbeing one of those responsible for sending specially trained squadsto Colombo and other places to bomb transformers, telephone instal-lations, etc. In the letter to the petitioner's brother no reference wasmade to discussions; instead, it was alleged that the petitioner hadconcealed information regarding terrorism. To the HRTF it was statedthat the petitioner had discussions with LTTE leaders and had concealedinformation about them.
As for his detention, the petitioner explained the circumstancesthus:
“After I was brought to the Criminal Investigations Departmentthe 3rd respondent interrogated me and told me that “interested
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parties" had wanted me to be kept in custody and further threat-ened me with assault and torture if I do not reveal the full detailsof the trip to Madhu with Dr. Jayawardene." [emphasis added]
While the 1st respondent did say in his affidavit that the petitioner"was never produced before the Director, CID", it is unlikely thatthe 1st respondent would have had personal knowledge of whatthe petitioner did throughout the entire period of about two daysduring which the petitioner was detained at the CID. This was aserious allegation made against the 3rd respondent, and he refrainedfrom filing an affidavit to deny it. There is thus insufficient reason todoubt the petitioner's version.
It was thereafter, that the Colombo Fort Magistrate remandedthe petitioner. In the circumstances, it is likely that he did notknow under what legal provision he was produced and remanded.
Although the 1st respondent claimed that he had arrested thepetitioner under section 6 (1), in the "B“ report the Police sought aremand order under section 7 (2) — although it seems to me thatit was section 7 (1) alone which applied. However, I do not considerthat defect as vitiating the remand order.
THE FACTS
I must now turn to certain other material facts which are indispute. The petitioner stated in his affidavit that:
"As a driver of the Sri Lanka Red Cross Society I havebeen assigned to carry out the duties that are assigned to meby the Chairman and the Secretary of the said Society … in[that] capacity I have visited the North and the Eastern Provinceson official duty on several occasions …
… in my capacity as a driver attached to the Sri LankaRed Cross Society I travel to the North and the Eastern areas,uncleared by the government forces, transporting mail bags, deadbodies of the security forces from the uncleared areas to be handed
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over to the authorities in Vavuniya, and the transport of deadbodies of the LTTE cadres handed over by the security forces,to the Sri Lankan Red Cross, to be handed over to the LTTE inthe uncleared areas."
In reply, the 1st respondent claimed to be unaware of the peti-tioner's duties, but acknowledged that "he had stated the same factsin his [statements]'1. That suggests that he did not know and had notchecked – on 7.6.98 or even three months later when he signed hisaffidavit – what those duties were. But, quite inconsistently, he wenton to claim that the petitioner's trips to Madhu and Thunukkani werenot within the scope of his duties. How could he have come to thatconclusion unless he had investigated and ascertained what thoseduties were? And if he had, he should have stated what those dutieswere, and should have produced a supporting statement from anofficial of the Red Cross. He did neither.
The report made to the Magistrate's Court on 7.10.98 includedsummaries of statements said to have been made byKishore the Secretary-General of the Society – whether those state-ments had been made before the petitioner's arrest, or after arrestbut before 10.6.98, or after 10.6.98, is not clear. I refer to thesesummaries not as evidence, but as the material available to therespondents on which they acted, or should have acted. Kishore'sstatement confirms that the petitioner drove to Madhu, and thereafterto Thunukkani, on Kishore's directions. The Secretary-General's state-ment reveals that he had told Kishore not to go to Madhu withDr. Jayawardena because Dr. Jayawardena was a politician; but evenif Kishore was at fault at that respect that was not a matter for thecriminal law. That statement contains not a word which suggests thatKishore's trip to Thunukkani was unauthorised, or that the petitionerwas acting outside the scope of his duties in obeying his instructions.If at all anyone was to blame, it was Kishore and not the petitioner.
The summaries revealed that Dr. Jayawardena came to Vavuniyaon 29.5.98, with Father Alexander, having made prior arrangementswith Kishore to travel to Madhu; not to Thunukkani. According to
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Kishore, the object of Kishore's visit to Thunukkani was – by priorarrangement with an LTTE leader – to discuss with Sudah the handingover of a soldier held captive by the LTTE; and subsequently, on
Sudah came to Madhu Church with that soldier. That soldierwas Nayanajith, whose statement was to the effect that he was heldcaptive by the LTTE; and that after Kishore's discussion with Sudah.Sudah brought him to Madhu Church on 31.5.98 (which FatherAlexander's statement confirmed); and that thereafter the ICRC broughthim to Vavuniya.
I have, therefore, no hesitation in rejecting the respondent's version.LEGALITY OF ARREST
As at 6.6.98, there was no complaint or allegation againstthe petitioner. The only matter being investigated was the allegeddiscussion between Dr. Jayawardena and the LTTE. The entiretyof the petitioner's trip, from 29.5.98 to 1.6.98 – to Madhu, Thunukkani,and back – was on the instructions of his superior, and withinthe scope and in the course of his employment. What is more, thepurpose of Kishore's visit to Thunukkani was for a lawful and, indeed,desirable purpose: to obtain the release of a soldier from LTTEcaptivity. The two statements made by the petitioner on 7.6.98 couldnot have given rise to any reasonable suspicion of wrongdoing of anykind. But, even assuming that the 1st and the 2nd respondents didhave some suspicion about the trip to Madhu and, or Thunukkani,they were under a duty to verify the petitioner's version from Kishore- and Kishore was readily available at Vavuniya, having accompaniedthe petitioner to the Police Station twice on 7.6.98. The summariesdo not indicate whether Kishore's statement had been recorded beforeor after the petitioner's arrest but that makes no difference. If it hadbeen recorded before, then it provided corroboration of the petitioner'sversion; but if it had been recorded after, then the arrest waspremature, made without due care being exercised to check the truthof the petitioner's statements. Either way, any suspicion which therespondents entertained was not reasonable.
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QIC, NIB, Vavuniya and Others
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The fact that the respondents have alleged varying reasons forarrest, taken together with the failure to establish the contents of thetelephone message, suggests that the petitioner was not given areason for arrest. According to the 1st respondent, the telephonemessage revealed that Sudah was wanted for terrorist activities, andthat was not a sufficient ground for arresting the petitioner becausehe had had no discussion with him on 30.5.98, and his previouscontacts were for lawful purposes. It is far more likely that the petitionerhad really been arrested for extraneous reasons – in the hope thatsomething might turn up which incriminated Dr. Jayawardena.
I hold that the petitioner had not been informed of any validreason for arrest; that the 1st and 2nd respondents did not infact suspect (reasonably or otherwise) that he was connected withor concerned in any unlawful activity or offence under the PTA; thathis arrest was arbitrary, capricious and unlawful, and for a collateralpurpose.
LEGALITY OF DETENTION
Article 13 (2) requires that every person arrested be broughtbefore the Judge of the nearest competent Court according toprocedure established by law; and not further deprived of his personalliberty otherwise than in terms of the order of such Judge.
The petitioner should, therefore, have been produced before aMagistrate in Vavuniya the same evening. The 1st and 2nd respond-ents deliberately refrained from doing so, with the intention of takinghim to the CID office in Colombo the next day. Even then, he wasnot produced before a Magistrate until 10.6.98.
The respondents rely on section 7 (1) of the PTA to justify detentionfor three full days. The PTA was passed with a. two-thirds majority(SC SD 7/79), and if the petitioner had been detained in conformitywith section 7 (1), there would be no violation of Article 13 (2).
Article 13 (2) applies to every person arrested (or held in custody,etc); and not only to persons "lawfully arrested", or "arrested in
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conformity with Article 13 (1)°. Section 7 (1) on the other hand appliesonly to persons "arrested under section 6 (1)°; and that means personsduly arrested, or persons arrested in accordance with section 6 (1).It does not include persons purportedly arrested under section 6 (1),or arrested contrary to section 6 (1) – and even if there had beensome ambiguity, being a provision affecting personal liberty, section7 (1) could not have been so interpreted.
I hold that the petitioner was not arrested “under" section 6 (1),but otherwise than in accordance with section 6 (1). Accordingly, the1st and 2nd respondents did not have the right to keep him in custodyin terms of section 7 (1), but were obliged to comply with Article13 (2). Article 13 (2) was infringed in two respects: non-productionbefore the nearest Magistrate, and detention for three days.
The period of detention after 10.6.98 gives rise to a differentquestion as to the legality of detention upon a Magisterial remandorder. Was that a judicial act, or was it executive or administrative?It cannot be said that the act of a judicial officer is necessarily"judicial'', and never "executive or administrative" – because an actwhich is not an exercise of the judicial power of the people may beexecutive or administrative in character: Jayathevan v. AG'K If ajudicial officer has been deprived by the law of the power of decidingand acting according to his own judgment, he cannot act "judicially":Farook v. Raymond21 citing Perera v. AG,(3) where de Alwis, J. heldthat a remand order made by a Magistrate was not in the exerciseof a judicial discretion, since he had none under the EmergencyRegulations, and that therefore the unlawful detention of the petitionerin that case had been by executive or administrative action.
Here the Magistrate did have a discretion, whether to remand ornot, in two respects. First, whether he acted under subsection (1)or (2), he had to consider whether the person was “connected withor concerned in or reasonably suspected of being connected with orconcerned" in any unlawful activity or offence under the PTA; if not,he could not make a remand order. Second, he could remand aperson only "until the conclusion of the trial". Accordingly, if a trialwas then not in contemplation – as, for instance, if the Police had
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announced that they had no intention of instituting proceedings – theMagistrate had no power to order remand. A remand order in sucha situation would have been tantamount to indefinite detention. Article13 (3) makes it clear that detention "pending trial" is not punishment.It follows that detention when no trial is contemplated would amountto punishment without trial and conviction. In that respect, too, theMagistrate had a discretion. Indeed, if at any subsequent stage thematerial on record showed that a trial was not in contemplation, thefoundation of the original remand order would disappear, and he hadthe power and the duty to review it.
Detention was, therefore, not by executive or administrative action,and no relief can be granted in these proceedings in respect of theremand order made on 10.6.98, even if it was wrong: for that, thepetitioner could have sought relief in other judicial proceedings.
However, it was clear from a very early stage that there could beno trial of the petitioner. Although the Attorney-General's opinion wasexpressed and communicated only on 28.12.98, there is no doubt thatthe Police were aware (at the latest by 7.10.98) that a trial was notreasonably possible. An "act" includes an omission, and likewise"executive or administrative action" includes an omission to act, atieast where there is a duty to act. Having obtained a remand orderagainst the petitioner operative until the conclusion of his trial, it wasthe duty of the Police to notify the Magistrate as soon as it becameclear to them that no trial was possible.
ORDER
Learned State Counsel cited the Emergency (Proscribing of LTTE)Regulations, No. 1 of 1998, which made it an offence to attendmeetings and other contacts with the LTTE. However, Regulation 5made an exception in regard to the right of any internationalorganization, which had entered into an agreement with theGovernment, "to engage in any activity connected with the renderingof humanitarian assistance".
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Even if the activities of the Sri Lanka Red Cross, Vavuniya DistrictBranch might not strictly fail within that provision, yet it was engagedin humanitarian activities on behalf of the Government and the peopleof Sri Lanka. The petitioner was just a small cog in that machine.He was entrusted with seemingly insignificant duties, which mostpeople would find less than congenial, and which had to be performedamidst anxiety, tension, and hostility. The human resources availableto the State to detect, investigate and prosecute crime are scarce,and they should have been devoted to that purpose rather than tothe harassment of the petitioner.
I grant the petitioner a declaration that his fundamental rights underArticles 13 (1) and (2) have been infringed, and direct the State topay him a sum of Rs. 200,000 as compensation and costs, and toforward proof of payment to the Registrar, on or before 9.4.99.
GUNAWARDANA, J. – I agree.WEERASEKERA, J. – I agree.
Relief granted.