119821 I S.L.R
Sri Lanka Law Reports
RasammahVMajor General Perera and others.
Supreme CourtWimalaratne J. Rat watte J.and Victor. Perera J.
S.C. Reference No. 2 of 1981.
A. Application No; 41/81 (HCA)
December 14, 1981. v
Writ of Habeas Corpus – Article 141 of the Constitution – Rules 47 and 49 ofthe Supreme Court Rules 1978 – production of corpus.
The stage at which the corpus should be produced before the Courtof Appeal or before a Court of First Instance is decided by the Courtof Appeal by virtue of its inherent powers and not by virtue of anyrequirement in the Supreme Court Rules. The Court of Appeal indetermining this question will exercise its discretion according to wellknown principles and practice and on'&'ccfrifeiderkteW'Pf the circumstancesof each case. The discretion remains unfettered by the tulfes of court.The questions referred to the Court are determined as follows: 1
(1)When a prima facie case is made out by the petitioner in anapplication made under Article 141 of the Constitution there is nomandatory requirement that the body of the person alleged to bewrongfully detained.should.,in every case be brought up before theCourt of Appeal (pr the most convenient Court of First Instance)before proceeding to inquire into the legality of the detention; theCourt of "Appeal Has a wide discretion to determine the stage atwhich the body should be produced. When the Court of Appealdirects a judge of a Court of First Instance to inquire and reportin terms of !h“ first proviso to Article 141. it is lawful for the CoiT
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.SCRasammah v. Major General Perera (Wimalaralnc, J.fJ1
. i.;l• ' •• •f ■ ■ .
of Appeal to require the body of the person alleged to be illegallyor improperly detained to be brought up before such, court of FirstInstance at the earliest opportunity.
Even when the Court'of Appeal Is not satisfied that a prima facie• case-iha been made out',, the. Court is entitled to. order the issue of
notic^ — the respondents in .terms of rule 49 of the, ‘Supreme CourtRules. 1978”.
It is not mandatory under the terms of Article 141 for the Courtof Appeal to require the respondent to produce-the Corpus: beforethe Court on the date of return to the notice issued under rule 49.
Reference by'Court of Appeal in t'drm.V'of Article 125 of'the Constitution.
V.S.A. Pullenayagam with S.C. Chandrahasan,
R.Srinivasan, S. Perinpanayagam, G. Keewaralingam &
Miss. M. Kanapathipillai for Petitioners.
P.S. de Silva Addl: S.G.with'S Ratnapala, S.G.for Attorney General.
Cur. adv. vult
January 11, 1982.
This is a reference made by the'-Cdurfof Appeal in terms of'Article125 of the Constitution for a determination by the Supreme Cdiirtof the following three questions relating to the interpolation ofArticle 141 of the Constitution:
When an application is made to the Court of AppetH’uft&erArticle 141 of the Constitution, for grant of ahrhbr'derin the nature of Writ of Habeas "Corpus and" the Court'issatisfied that a prima facie case has been mdde^ut, shcfaldthe Court, in every such case under the terms of Article141 of the Constitution issue a Writ requiring that the bodyof the person detained be brought up before* the-Court ofAppeal (or ,-the^most convenient-Gdtfrt of Rrsfc'trtstanCe)before proceeding to inquire into the legality of sifcW detention?
«>! -bwid- :
Where upon application made, the Court is not satisfiedthat a prima facie case has been made out, is the Court
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bound to refuse the application in every case or is theCourt entitled to issue notice on the respondents in thefirst instance and thereafter determine the legality of thedetention?
If the Court is entitled to issue a notice in the first instanceis it mandatory under the terms of article 141 of theConstitution, to require the respondents to produce thecorpus before the Court on the notice returnable date?
Article 141 is in these terms:-
"The Court of Appeal may grant and issue orders in the nature ofwrits of habeas corpus to bring up before such Court-
the body of any person to be dealt with according to law; or
the body of any person illegally or improperly detainedin public or private custody,
and to discharge or remand any person so brought up or otherwisedeal with such person according to law:
Provided that it shall be lawful for the Court of Appeal to requirethe body of such person to be brought up before the most convenientCourt of First Instance and to direct the Judge of such court toinquire into and report upon the acts of the alleged imprisonmentor detention and to make such provision for the interim custodv^fthe body produced as to such court shall seem right; and the jEourtof Appeal shall upon the receipt of such report, makeyOrder todischarge or remand the person so alleged to be imprisoned ordetained or otherwise deal with such person according to law, andthe Court of First Instance shall conform to, and cany'into immediateeffect, the order so pronounced or made by the Court of Appeal:
It has been submitted by learned Counsel for the Petitioners thataccording to its ordinary and natural meaning, the above Articlerequires that the Court, upon a prima facie case being made out,is obliged to order that the body of the person detained be brought
Rasammah r. Major General I’crera (Wnnalarnme. ./. i
up before it (or before a court of First Instance) before the Courtproceeds to inquire into the legality of such detention. The veryname of the Writ – Habeas Corpus – means “have his body” andthis empowers the Court to cause any person who is alleged to beunlawfully confined to be brought before the Court to enable theCourt to inquire into the reason why he is confined, and to set himat liberty then and there, should it sec fit. Counsel has referred usto the practice of the Courts, both in England and in Sri Lanka insupport of his contention that the body of the person is brought upbefore the Court commences inquiry into the legality of the detention.
The learned Additional Solicitor General has contended that theabove Article contains no imperative requirements that in every casewhere a prima facie case of illegal detention is made out by thepetitioner the Court is obliged to order the production of the bodybefore it. He does not contend that the Court of Appeal has nopower to issue a Writ of Habeas Corpus without first hearing therespondents, in appropriate cases. This is, however, a matter left tothe discretion of the Court to be exercised according to well establishedprinciples of practice and procedure. He submits that the Courtwould issue the writ forthwith on an ex parte application only incases of special urgency, where for example there is a danger of therespondent fleeing from the jurisdiction and depriving the prisonerof his remedy.
It has to be remembered that Article 141 only confers a power,just as Article 140 confers a power to the Court of Appeal. InEnglish law that power was derived from the common law, and isbest stated in the following passage referred to by Counsel for thepetitioner:
“It is an order issued, in the particular instance, by theCourt of Queen’s Bench, calling upon a person by whoma pWspner is alleged to be kept in confinement to bringsuch prisoner – to “have his body" whence the name habeascorpus – before the court to let the court know on whatground the pHsoner is confined, and thus give to the Courtthe opportunity of dealing with the prisoner as the law mayrequire. The essence .of the whole transaction is that thecourt can by the writ of habeas corpus cause any personwho is imprisoned to be actually brought before the Court
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and obtain knowledge of the reason why he is imprisoned;and then haying him before thecourt, either then and thereset him free or else see that he is dealt with in whateverway the'law requires, as, For example, brought speedily totrial.”
“The High Court of Justice possesses, as the tribunals whichmake up the High Court lisea to possess, the power bymeans of the writ of habeas corpus to cause any personwho is alleged to be kept in unlawful confinement to bebrought before the court. The court can then inquire intothe reasdn why he is confined, and can, should it see fit,set him then and there at liberty. This power moreover isone which the court always will exercise whenever groundis shown by any application whatever for the belief thatany man in England is unlawfully deprived of his liberty. ”
Dicey – Introduction to the study of the Law of the Constitution (10thEd) pp' 215,216.
The existence or conferment of a power in' !a Court is one thing;the method of the exercise of that power is another. Now this poweris exercised by the Courts according to well established rules ofprocedure and practice. In England the procedure is regulated bythfr'Khles'of' the' Supreme Cbtirt made ’from 'time to time. Theclassical English practice before 1780 was simply to have an ex partemotion for the writ, and if on that application the prisoner madeout an arguable case, the writ issued. The case was determined onthe return of the body of the prisoner and the cause of detention -Vide R.J. Sharpe * The Law of Habeas Corpus (1976) p. 213. Between1780'and 1938 the initial ex parte application'was, framed as a reo'uest .for a rule nisi requiring the respondent to show cause, on a certainday, why the writ should not issue. If the Court was satisfied thatthe applicant had an arguable case the rule nisi would issue. Theapplicant would serve the respondent with notice of the rule nisi,and it was then incumbent upon the respbndeht to make out a casefor the detention on the return to the rule;' the argument at thgt'stage became the substantial hearing. While the Court could/stillorder the writ to actually issue, the matter could readily be determinedat this stage. The rule nisi procedure, however, allowed the Courtto try the matter without a formal return and without the expense
Rasammnh i>. Major General Perera iWitnalaraine. J )
of having the prisoner brought physically before the Court – Sharpe p. 212.
The modern practice was adopted in 1938 and is contained inOrder 54 of the Rules of the Supreme Court (1965). The applicationis made ex parte to a Divisional Bench of the Q.B.D. or to a singleJudge. If the court grants leavc: the application . is adjourned for-,notice to be served on such person as the Court directs; and uponthe adjourned hearing if the application succeeds the writ is orderedto issue. .It is possible^ however, for the Court or Judge under Rule2 (1) to jprder that writ issue forthwith on ex parte application:“Although there, js ppwer by this Rule to make an order forthwithfor the issue of- the .writ on the ex parte application, it is only-exercised where there is a likelihood that delay may defeat justice^or where the facts and law are clear. In other cases the Court of-Judge makes one of the other orders mentioned in the rule, in whichevent the person detained• mustrunot be released meanwhile.’* TheSupreme Court .^Practice (1979)-vVol. 1. p.SJS. According toWade-Administrative Law (4th Ed) p,i521 the modern practice is notto require the production of the prisoner unless there are specialcircumstances, but to order his release if the imprisonment is foundto be ^unlawful whereupon the writ of habeas corpus-sis issued. -Theinstances, when the writ ought ex parte to issue are best summarisedn Hanbury's Laws:,of England (4th‘Ed) Vofll para 1482. In 'casesrelating to the custody of minors, where therc- is h-possibility; of a"minor being removed out of the jurisdiction or of his custody beingchanged or parted with, the issue of the writ ex parte may be theexpedient and proper course.
Although the Supreme Court, of India has, by Order 32 Rule 3of the S.C. Rules, adopted the classical English practices of requiringthat the person who had the custody should himself bring the returnand the body of the .prisoner before the. court on the. day and the.hour prescribed A. T. Markose seems to think that strictly the Courtshave a discretion either to order the jailor to bring the body alongwith the return or only to make a return without bringing the prisonerto the Court at the first instance. He gives three reasons for this,one of. which is that the allegations made in the petition are notconclusive: Judicial Control of Administrative Action in India (1956)p. 165.
Sri Lanka Law Reports
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In Sri Lanka, when the power to issue the writ of habeas corpuswas conferred on the Supreme Court by the Courts Ordinance No.lof 1889, the procedure adopted appears to have been the rule nisiprocedure which prevailed in England. In certain cases a directionwas included to produce the body of the person alleged to bewrongfully detained on the date of return to the rule nisi. Bracegirdle'scase (39 NLR 193) was one such case. Bracegirdle was about to bedeported out of the country and that appears to be the reason forhaving him produced forthwith. But one cannot say that there hasbeen an inveterate practice to have the body produced forthwitheither under the rule nisi procedure or the later procedure of issuingnotice. For example, in H.C. Application No. 411/71 it was allegedthat the arrest of one P.C. Gunasekera on 5.12.71 and subsequentcustody under emergency regulation 19 was wrongful. A DivisionalBench of the Supreme Court directed that the corpus be producedto be dealt with according to law (that is, to release him) only onthe date after the conclusion of the submissions of Counsel, and noton the notice returnable date. The subsequent arrest and custody ofGunasekara was challenged in H.C. Application No. 43/72 and thejudgment of the Supreme Court in that case, which is reported in76 NLR 316 at 321 supports the statement that Gunasekara hadbeen produced only after the conclusion of the submissions of Counselat the first inquiry.
After the repeal of the Courts Ordinance, the power to issue thewrit of habeas corpus was conferred on the former Supreme Courtby section 12(2) of the Administration of Justice Law, No.44 of1973. On the repeal of that law, the power is now conferred byArticle 141 of the Constitution on the Court of Appeal. The powerconferred is the identical power conferred by the Court’s Ordinance."The procedure, however, is now governed by Rules of Court madeby the Judges of the Supreme Court by virtue of powers vestedunder Article 136 empowering the Court to make rules as to theproceedings in the Supreme Court and the Court of Appeal in theexercise of the several jurisdictions conferred on them. The relevantrules are contained in Part IV of the “Supreme Court Rules, 1978”entitled “Writs and Examination of Records”.
Briefly, the rules provide for the issue of notice on an ex parteapplication supported by affidavtit and exhibits. The respondent isrequired, on service of notice, to file objections, if any, within
Rasummah r. Major General Perera I Wimnlarnlnr. J.)
certain period. Although the rules arc in respect of all applicationsfor writs, a distinction between habeas corpus and other writs isdrawn in rule 47; so that it cannot be said that the Judges in makingthese rules have not specifically considered the special procedureapplicable to habeas corpus. It is significant that there is no referencein the rules for the production of the corpus on the notice returnabledate. There appears to be a sound reason for this, and that is thatthe power to issue the writ has been conferred on. the Court ofAppeal, which is designated a Superior Court. Now, one characteristicof Superior Courts is that they have inherent powers to do certainthings. The stage at which the corpus should be produced beforethe Court of Appeal or before a Court of First Instance is decidedby the Court of Appeal by virtue of its inherent powers and not byvirtue of any requirement in the Supreme Court Rules. The Courtof Appeal in determining this question will exercise its discretionaccording to well known principles and practices and on a considerationof the circusmtances of each case. When, for example, it is allegedby a petitioner that the whereabouts of a person taken ito custodyarc unknown, or that the custody of a minor is about to be partedwith or the minor is about be removed out of the country, a directionfor the production of the corpus before the Court forthwith may bethe proper and expedient course. The discretion remains unfetteredby the rules of Court. But to hold that the respondent is under aduty in every case to produce the body on the date of the returnto notice or on any date prior to the issue of the writ after inquirywould be to unduly fetter the discretion of the Court of Appeal. Iwould therefore determine the questions referred to us as follows 1
(1)When a prima facie case is made out by the petitioner inan application made under Article 141 of the Constitutionthere is no mandatory requirement that the body of theperson alleged to be wrongfully detained should in everycase be brought up -before the Court of Appeal (or themost convenient Court of First Instance) before proceedingto inquire into the legality of the detention; the Court ofAppeal has a wide discretion to determine the stage atwhich the body should be produced. When the Court ofAppeal directs a judge of a Court of First Instance toinquire and report in terms of the first proviso to Article141, it is lawful for the Court of Appeal to require thebody of the person alleged to be illegally or improperly
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 1 S.L.R
detained to be brought up before such Court of FirstInstance at the earliest opportunity.
Even when „the Court of Appeal is not satisfied that aprima facie case has been made out, the Court is entitledto order the issue of notice on the respondents in termsof rule 49 of the “Supreme Court Rules, 1978”.
It is not mandatory under the terms of Article 141 for theCourt of Appeal to require the respondents to produce theCorpus before the Court on the date, of the return to thenotice issued under rule 49
RATWATTE J: — I agree.;
VICTOR PERERA J, — I agree
Case, referred to Court of Appeal with determination
Rasammah V Major General Perera and others