RAHULAN vs. ATTORNEY GENERAL

032-SLLR-SLLR-2006-V-3-RAHULAN-vs.-ATTORNEY-GENERAL.pdf


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Rahulan vs. Attorney General
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RAHULANVS.ATTORNEY GENERALCOURT OF APPEAL.
BALAPATABENDI. J (P/CA).
BASNAYAKEJ.,
A. 101/2002HC COLOMBO NO. 294/99DECEMBER 6, 2004JANUARY 17, 2005
Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (PTA)Amended by Act No. 10 of 1982 and No. 22 of 1988 – Section 2, section 3undergoing weapons training-Could it be considered as an act that wouldviolate section 2 (1) – of the Prevention Terrorism Act-Ejusdem generis Rule-Its applicability-Confession vague ?
The accused-appellant a member of the LTTE was charged under section2 (1)h of the Prevention of Terrorism Act for undergoing weapons training-apunishable offence. The accused was convicted as charged, the convictionwas based on a confession.
It was contended that, undergoing weapons training does not fall within thedefinitions of words either spoken or intended to be read or by signs or byvisible representations or under section 2(1) (h) and that the rule of Ejusdemgeneris applies.
It was otherwise contended by the respondent that, section 2 (1) (h) wasenacted to cover situations that do not satisfy the criteria in section 3 of the PTA.
HELD
In considering the preamble and the other provisions of the PTA itbecomes clear that the intention of the legislature in enacting this statutewas to establish and maintain the rule of law and dispel the threat ofanarchy.
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Therefore the widest possible meaning should be attached to theprovisions of this Act, it is only'then that the purpose of the legislationcould be achieved.
Per Eric Basnayake. J
‘Here is a case where the foundation of the democratic institutionshas been challenged. The purpose of undergoing weapons training isevidently to cause acts of violence by the terrorists who are waging waragainst the established government".
Ejusdem generis rule does not apply to this case and the words ‘orotherwise* provides for the institution of a broader offence referred to insection 2(1) (h) meaning any act done either to ‘cause or intended tocause the commission of acts of violence".
Though the accused had given evidence under oath and deniedeverything mentioned in the confession, the confession has not becomevague as a result of the denial.
No Court shall convict an accused on a mere confession of a crime. Itshall be verified and the Court would then have to be satisfied that infact such crime was committed.
Although in the instant case no verification has been made, Court cannotexpect the authorities to verify these kind of facts. The dates, namesand places are not known to the authorities. There is no way of verifyingthem. In this kind of situation the Court has to arrive at a decision bylooking at the confession alone.
Where there is no evidence besides a voluntary confession the Courtmay convict the accused on that confession alone, if after scrutiny of theconfession the Court is satisfied beyond reasonable doubt that it istrue.
Appeal from the judgment of the High Court of Colombo.
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Cases referred toNagamani Theivendran vs.A.G- SC 65/2000 – SCM 16.10.2002
R Vs. Edmonds – 1859 – 28 LJMC 213 at 215
Evans vs. Croos – 1938 – 1KB 694 Cries 180
In Re Stockport Schools – 1898 2 CA 687 at 696
S. S. Magnild (owners) vs. Mac Intyne – 1920 3 KB 321 cited in Cris at• 180
Brown Sea Haven Properties vs. Police Corporation -1958 A1 574. CA
Papworth vs. Coventry- 1967 – 2 All ER 41
In Re Latham – 1962 Ch 616
Eton RDC vs. Thomas Conservation -1950 Ch 540 at 544
NALGO vs.Bolton Corp – 1943 A1 166
State vs. Sajed- 1962 – SALR (CPD) 128
Rex vs. Nolte -1928 AD 377
Quazi vs. Quazi – 1980 A1 744
1957 A1 436
AG vs. Prince Ernest Augustus Hanover -1957 AL 436
Shankira vs. State of Rajasthan – AIR 1978 (SC) 1248
L. S. Raja and others vs. State of Mysore- AIR (BOM) 297
Jai Singh and another vs. The State – AIR 1967 Delhi 14
Ram Singh vs. State of UP AIR 1967 SC 152
Prince Perera for accused-appellantAchala Wengappuli SSC for respondent
cur.adv.vult.
June 1, 2006
ERIC BASNAYAKE, J.The charge against the accused appellant (accused) was that, he beinga member of the LTTE organization between the period 20.10.1991 and20.10.1992, had weapons training, an offence punishable under section 2
(II) read with 2 (1) (h) of the Prevention of Terrorism (Temporary Provisions)
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Act No. 48 of 1979 as amended by Act Nos. 10 of 1982 and 22 of 1988.The accused was convicted as charged. The conviction was based on aconfession. Extracts of the confession were marked P1a, P1b and P1c.The accused was sentenced to seven years rigorous imprisonment. Thisis an appeal against the said conviction and the sentence.
When this case was taken up for argument, learned counsel for theaccused and the learned Senior State Counsel invited court to make anorder on the written submissions already tendered to court. Learnedcounsel for the accused was gracious enough to submit to court copies ofthe Supreme Court Judgment of Nagamani Theivendran vs. AttorneyGeneraP) which is relevant to this case and where all the importantauthorities were considered. Thereafter on the invitation of Court, writtensubmissions were tendered on the question whether the acts proved tohave been committed constitute an offence.
Section 2 (1) (h) is as follows : Any person who – by wordseither spoken or intended to be read or by signs or by visiblerepresentations or otherwise causes or intends to causecommission of acts of violence or religious, racial orcommunal disharmony or feeling of ill will or hostility betweendifferent communities or racial or religious groups : or… Interms of section 2 (2) (ii) of the Act, on conviction accused isliable to imprisonment for a period not less than five years andnot more than twenty years (emphasis added).
Does undergoing weapons training fall within the definition of "wordseither spoken or intended to be read or bv signs or bv visible representationor otherwise . . . “ ?
The learned Senior State Counsel submitted that if the acts proved tohave been committed by the accused, namely, undergoing weaponstraining, do not fall within the definitions of “words”, “signs” or “visiblerepresentations” mentioned in the above section, the conduct of the accusedis covered by the term “or otherwise” mentioned in the section. The learnedcounsel submitted that one could incite another to do an act of violence bywords, signs or visible representations which are covered by section 3 ofthe PTA. He submitted that what the Legislature expected to provide by
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enacting section 2 (1) (h) was to cover situations that do not satisfy thecriteria in section 3 of the PTA.
Section 3 of the PTA is as follows
Any person who-
(a) does any act preparatory to the commission of anoffence;
or
abets, conspires, attempts, exhorts or incites thecommission of an offence; or
causes the death of any person, or commits any actupon any person whomsoever in the course of committingany offence under this Act, which act would, under theprovisions of the Penal Code, be punishable with death orwith a term of imprisonment of not less than seven years,shall be guilty of an offence and shall on conviction be liableto imprisonment of either description for a period of not lessthan five years but not exceeding twenty years where theoffence is one specified in paragraph (a) or (b), or toimprisonment for life where the offence is one specified inparagraph (c).
Eiusdem Generis Rule
“Where there are general words following particular words and specificwords, the general words must be confined to things of the same kind asthose specified. Lord Campbell in R. V. Edmondson2 at 215 cited in Craieson Statute Law seventh edition pg. 179. In Evans vs. Cross3 it was heldthat section 48(9) of the Road Traffic Act of 1930 which defined “trafficsigns" to include “all signals, warning sign posts, direction posts, signs orother devises”, must be construed as to include “devises” as thing ejusdemgeneris with the preceding words and therefore that a painted white line ona road was not a raffic sign within the section. In Re Stockport, Schools4the Court of appeal held that in the phrase “cathedral, collegiate, chapteror other schools” in section 62 of the Charitable Trusts Act 1853 the words“or other schools" did not apply to all schools of whatever description, but
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only to schools similar in character to those specifically mentioned in thesection. Lindly M. R. said “I cannot conceive why the Legislature shouldhave taken the trouble to specify in this section such special schools ascathedral, collegiate and chapter except to show the type of school whichthey were referring to, and in my opinion other schools must be taken tomean other schools of that type”.
In SS Magnild (Owners) v. Macintyre5 McCardie J pointed out that inconsidering whether a particular unspecified thing is ejusdem generis withspecified things, the questions to be asked are, first what common qualitythe specified things possess which constitutes them a genus ?, then,does the particular unspecified things possess that quality so that it maybe regarded as of the same genus? It is not enough to consider merelywhether the particular unspecified thing is like one or more of the specifiedthings.
In Brown Sea Haven Properties V. Poole Corporation 6 and Papworth vsCoventry7 the word “in any case” in a provision in the Town Police ClausesAct 1847 giving power to control traffic routes “in all times of publicprocessions, rejoicings, or illuminations, and in any case when the streetsare thronged or liable to be obstructed” were held to be confined to caseswithin the category of which public processions, rejoicings and illuminationsare specific instances and should not be extended to cover thecircumstances of ordinary day-to-day traffic conditions.
In Re Latham deceased8 it was held that the words “or other person” inthe phrase “trustee, guardian, committee or other person" in section 8 (4)of the Finance Act 1894 meant a person in a similar position to a trustee,etc., and could not refer to a person beneficially interested. The words “orotherwise” have been held in Eton R. D. C. v. Thames Conservators? at544 to apply ejusdem generis with the foregoing words.
The application of the eiusdem generis rule to section 2 (1) (h) ofthe PTA
In the Prevention of Terrorism (Temporary Provisions) Act “words” “signs”“visible representations” are followed by the words “or otherwise", causingor intending to cause commissions of acts of violence or religious, racialor communal disharmony or feeling of ill-will or hostility between differentcommunities or racial or religious groups. Under this provision using words
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like “kill a section of a particular community”, for example, would constitutean offence under this provision. The same message could be driven throughposters, leaflets, cartoons, and pictures etc. Whatever the words spokenor signs displayed should be capable of creating communal disharmonyetc. Under the ejusdem generis rule the word “or otherwise" would meananything done which would be similar to “words either spoken or intendedto be read or signs or visible representations* that would cause thecommission of acts of violence… hostility between different communities… Could one create such communal disharmony bv the fact of undergoingweapons training in a terrorist camo ?
The learned Senior State Counsel submitted that in the interpretation ofthe general term “or otherwise” the ejusdem generis rule does not apply. InN. A. L. 6 0. v. Bolton Corpn(10) Lord Simon L. C. referred to a definition of“workman” as any person who has entered in to a works under a contractwith an employer whether the contract be by way of manual labour, “orotherwise" and said “The use of the words ‘or otherwise’ does not bring into play the ejusdem generis principle : for ‘manual labour’ and ‘clericalwork’ do not belong to a single limited genus”. Lord Wright remarked that“the ejusdem generis rule is often useful or convenient, but it is merely arule of construction, not a rule of law. In the present case it is entirelyinapt.
In State v. Sayed v the Police Offences Act read, any person guilty of‘encumbering1 any public street, footway or carriage-road, or obstructingthe free passage along the same by means of any wagon, cart or otherthing whatsoever shall be liable to a penalty. The appellant was chargedand convicted under this section for having boxes full of vegetables exposedin front of the appellant’s business obstructing free passage along thefootway. Counsel for appellant in that case submitted the words “or otherthing whatsoever” should be constructed in terms of the ejusdem generisrule as denoting only things similar to wagons and carts, namely, wheeledvehicles; that they denote a genus or category. Van Heerden A. J. held “inendeavouring to ascertain the intention of the lawgiver one must considerthe scope and objects of the enactment sought to be interpreted and the
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mischief at which it is aimed. The mere fact that general words followparticular words does not necessarily invoke the application of the ejusdemgeneris rule; a rule which according to Rex vs. Noltel'2) is one that has tobe applied with caution.
In Quazi v. Quaz/'(,3) section 2 of the Recognition of Divorces & LegalSeparation Act 1971 required recognition to be given to foreign divorcesand legal separation obtained by means of “Judicial or other proceedings".The House of Lords considered ‘other proceeding’ as not being limited toproceedings akin to judicial proceedings but capable of being applicablealso to talaq divorces which are essentially religious ceremonies. LordScarman remarked 14 “if a legislative purpose of a statute is such that astatutory series should be read ejusdem generis, so be it; the rule ishelpful. But if it is not, the rule is more likely to defeat than to fulfill thepurpose of the statute. The rule like many other rules of statutoryinterpretation is a useful servant but a bad master”.
In AG vs. Prince Ernest Augustus of Hanover(U) Lord Normand observedthat where there is a preamble it is generally in its recitals that the mischiefto be remedied and the scope of the Act are described. It is thereforeclearly permissible to have recourse to it as an aid to construing theenacting provisions. The courts are concerned with the practical businessof deciding a lis; and when the plaintiff puts forward one construction of anenactment and the defendant another, it is the courts business in anycase of some difficulty, after informing itself of what I have called the legaland factual context including the preamble, to consider in the light of thisknowledge whether the enacting words admit of both the rival constructionsput forward. If they admit of only one construction, that construction willreceive effect even if it is inconsistent with the preamble,but if the enactingwords are capable of either of the constructions offered by the parties, theconstruction which fits the preamble may be preferred.”
I will first reproduce the long title of the PTA which is as follows
“An act to make temporary provision for the preventionof acts of terrorism in Sri Lanka, the prevention of unlawfulactivities of any individual, group of individuals, association,organization or body of persons within Sri Lanka and formatters connected therewith or incidental thereto”.
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The preamble reads as follows
“Whereas the Parliament of the Democratic SocialistRepublic of Sri Lanka continues to affirm that men andinstitutions remain free only when freedom is founded uponrespect for the Rule of Law and that grievances should beredressed by constitutional methods:
And whereas public order in Sri Lanka continues to beengaged by elements or group of persons or associationsthat advocate the use of force or the commission of crime asa means of, or as an aid in, accomplishing governmentalchange within Sri Lanka, and who have resorted to acts ofmurder and threats of murder of members of Parliament andof local authorities, police officers, and witnesses to such actsand other law abiding and innocent citizens, as well as thecommission of other acts of terrorism such as armed robbery,damage to state property and other acts involving actual orthreatened coercion, intimidation and violence:
And whereas other democratic countries have enacted speciallegislation, to deal with acts of terrorism”.
In considering the preamble and the other provisions of this Act itbecomes clear that the intention of the legislature in enacting this statutewas to establish and maintain the rule of law and dispel the threat ofanarchy. Therefore the widest possible meaning should be attached to theprovisions of this Act. It is only then that the purpose of the legislationcould be achieved. Here is a case where the foundation of the democraticinstitution has been challenged. The purpose of undergoing weaponstraining is evidently to “cause acts of violence by the terrorists who arewaging war against the established government”. Therefore I agree thatthe ejusdem generis rule does not apply in this case and the words “orotherwise” provides for the constitution of a broader offence referred to insection 2 (1) (h), meaning any act done either to “cause or intended tocause the commission of acts of violence . . Undergoing weaponstraining therefore could be considered as an act that would violate theprovisions of section 2 (1) (h) of the PTA.
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The acts referred to in the confession are vaaue and not proved ?
The other argument that has to be considered in this case is whether"the confession is vague, indefinite and devoid of material particulars andin the absence of any other evidence it cannot be relied upon even if trueas being sufficient and trustworthy to form the basis of a conviction on thecharge against him" (reproduced verbatim from the judgment of Ismail J inNagamani Theivendran’s case) (Supra).
' The only evidence against the accused was the confession. No otherevidence had been led to prove the truthfulness or otherwise of the mattersrelated to in the confession.
The accused had given evidence under oath and denied everythingmentioned in the confession. In view of this denial and the fact that noother evidence had been led to prove the truth of the matters referred to inthe confession, the learned counsel for the accused appellant submitsthat the confession is vague. The learned counsel appears to rely heavilyon the judgment of Ismail J in the case of Nagamani Theivendiran vs.Attorney General (Supra). In Nagamani Thevendiran’s case the accusedwas indicted for attacking members of the armed forces between01.01.1993 and 30.04.1993. The sole item of evidence against the accusedwas his confession made to an A. S. P. The accused in evidence denied tohaving made such a statement. The High Court held in that case that theaccused did make the statement and failed to discharge the burden that itwas obtained by inducement, threat or promise and convicted the accused.The Court of Appeal affirmed the conviction.
The Court of Appeal in the course of .its judgment while dealing with theconfession set out the general principle that “there is a presumption that aperson would not make an admission against his interest unless it wastrue".
It was argued in that case that the High Court erred in finding the accusedguilty on the basis of the contents of the confession as it was in evidencethat the relevant authorities made no attempt to ascertain the truth of it’scontents; and that the confession did not suffice to establish the chargesince it contained hearsay evidence in relation to the consequent deaths
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of specific persons. In the circumstances the learned counsel urged theSupreme Court to consider the question of law as to whether the Court ofAppeal had erred in holding that the sole evidence in the nature of aconfession revealed an attack on a “specified person”, and whether it wassufficient to establish the charge without further independent evidence.
Admittedly no investigations were carried out in respect of any of theincidents referred to in the confession. Ismail J held that “it is well settledthat a confession, voluntarily and truthfully made, is an efficacious proof ofguilt. However before it can be acted upon, it must satisfy the tests ofvoluntariness, truth and sufficiency. It must be shown that it was madevoluntarily and that it was true and sufficient to constitute a confession”15.Ismail J held that "as the admissibility of the confession was not sought tobe challenged.. •. it would be necessary to ascertain the question as towhether the facts stated therein can be accepted as true and reliable. Theperiod commencing from January '93 to the end of April 93 is stipulated asthe date of committing of the offence. On a scrutiny of the confession itappears that the period of time referred to therein is indefinite and does nottally with the period specified in the charge. The period of time given in theconfession during which the attack took place is inconsistent with theperiod specified in the charge”.
Ismail J quoted with approval Sakaria J in Shankria vs. The State ofRajasthan 15 L. S. Raja and others vs. State of Mysore16 Jaising andanother vs. The Statelw) that “if a confession is voluntary, the court mustbefore acting upon the confession reach the finding that what is statedtherein is true and reliable. Forjudging the reliability of such a confessionor for that matter of any substantive piece of evidence, there is no rigidcannon of universal application. Even so one broad method which may beuseful in most cases for evaluating a confession may be indicated. Thecourt should carefully examine the confession and compare it withthe rest of the evidence, in the light of the surrounding circumstancesand probabilities of the case.lf on such examination and comparisonthe confession appears to be a probable catalogue of events andnaturally fits in with the rest of the evidence and the surroundingcircumstances, it may be taken to have satisfied the… test of truthRamsingh vs State(,8> (emphasis added).
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Ismail J said that “the confession itself dealt with the activities in theLTTE group three years previously in the year 1992. The confession isvague, indefinite and devoid of material particulars, and in the absence ofany other evidence it cannot be relied upon, even if true as being sufficientand trustworthy to form the basis of a conviction on the charges againsthim".
Fernando J agreeing with the reasoning and the conclusion arrived atby Ismail J and referring to the Indian authorities relied upon said that “theIndian decisions support the position that, as a matter of law, wherethere is no evidence besides a voluntary confession (even though itbe extra judicial) the court may convict the accused on thatconfession alone if after scrutiny of the confession the court issatisfied, beyond reasonable doubt that it is true. The conviction wasset aside in that case as the trial judge failed to consider whether therewas an attack during the period covered by the charge.
In the current case the charge is that between the period 20.10.1991and 20.10.1992 the accused, being a member of the LTTE organization,underwent weapons training. Three extracts of the confession markedP1 a, P1 b and Pic are to the effect that the accused joined the LTTE on20.10.1991 at the request of Ragunathan; that when he went to the LTTEcamp by the name of “Kilibase”, 160 were found undergoing training andhe joined them with a team consisting of 13; that he was trained by Aribuand Vijith; that he was given training in methods of fighting, physicalexercises and training to shoot with AK 47, 303 and SLR rifles; He wasalso taught to fix them and dismantle them.
How can one verify the truthfulness of these events ? If it is relating toan attack on the armed forces of the elected government or killing someonein a government controlled area, it may be possible to verify the truth asthere would be a record of these events. However how is one to prove thatthe accused joined the LTTE and consequently underwent training ? Theaccused has not related any incident where the evidence could be verified.
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Can this confession be termed vague? The accused has given a detailedaccount of dates and names of those who trained him and the type oftraining he underwent.
The accused was arrested while at the Royal Cinema in Vavuniya oninformation received from Sunderalingam Ghanashathis and Vigneshwaranwho were also arrested by the police on suspicion of terrorist involvements.Therefore I am of the view that the confession is definite and not vague. Nocourt shall convict an accused on a mere confession of a crime. It shall beverified, and the court, satisfied that in fact such crime was committed. Ifa man confessed to the killing of someone who is well and truly living, andsuch a person is convicted and sentenced, that would create an absurdity.This is the reason why the law has laid down a rule that events should beverified. It should be verified in order that the court can be satisfied beyondreasonable doubt that the crime referred to in the confession had beencommitted.
In this case admittedly, no such verification has been made. No courtcan expect the authorities to verify this kind of facts either. The dates,names and places are not known to the authorities. There is no way ofverifying the mentioned names. Even if such names were checked, theevidence adduced would be hearsay and not admissible. Therefore in thiskind of situation the court has to arrive at a decision by looking at theconfession alone. It is true that the accused denied the whole confessionin evidence. Could the confession become vague as a result of this ? Thetrial court held that the confession was voluntary. The learned counsel didnot challenge that decision. On that fact and considering the eventsdisclosed in the confession, I am of the view that the evidence adduced issufficient and that the accused has been rightly convicted. Hence I see nomerit in this appeal and the same is dismissed.
BALAPATABENDI, J. (P/C. A.) —I agree.
Appeal dismissed.