SASANASIRITISSA THERO AND OTHERS v. P. A. DE SILVA, CHIEF INSPECTOR, C. I.

040-SLLR-SLLR-1989-V-2-SASANASIRITISSA-THERO-AND-OTHERS-v.-P.-A.-DE-SILVA-CHIEF-INSPECTOR-C.-I..pdf


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SASANASIRITISSA THERO AND OTHERS
v.P.A. DE SILVA, CHIEF INSPECTOR, C.I.D. AND OTHERS
SUPREME COURT
A.G DE SILVA, J„ BANDARANAYAKE, J. AND KULATUNGA, J.
S.C. APPLICATIONS 13/88, 14/88 and 15/88MAY 17, 18, 19, 29 & 30, 1989
Fundamental Rights – Mala tide arrest and detention for political reasons – Articles12(1), 12(2), 13(1), 13(2) and 14(1) of the Constitution – Time-base
At the' Katana Mahapola celebration held at Harischandra Vidyalaya a bomb explosiontook-place to disrupt the procession and two hand grenades were thrown – one olwhich struck a student and rolled on to the ground without exploding a few yards fromthe Hon. Amarasiri, Minister of Trade and Hon. Wijayapala Mendis, Minister of TextileIndustries (5th respondent) and the others exploded causing injuries to the 6threspondent (the 5th' respondent's Public Relations Officer). The 1st petitioner is thepatron of the SLFP and a prominent party worker opposed to the Government whilethe 2nd. and 3rd petitioners were his van driver and aide respectively. The 1stpetitioner’s van driven by the 2nd petitioner had been about 75 yards away from theplace where the bomb exploded. The van had come to the town to change tyres andneither the 2nd or 3rd' petitioner’s had anything to do with the incident. The 1 stpetitioner had gone, to the house of one Justin Silva and with him gone to the templebut came to know on the day of the incident itself (9.10.87) that his driver and aide ■• had been taken into custody. On the same day in the night, he was arrested by the 1 st
sc
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respondent who did not inform him of the reason for the arrest'. He was kept in thesame cell with his driver and aide. They were kept in Police custody and prison andon 1.1.88 they were brought back tp the New Magazine Prison where they wereserved with a detention order dated 20.12.87 under Regulation 17(1) of the EmergencyRegulations signed by the Secretary, Ministry of Defence. After their arrest they werenot produced before a Magistrate. The 2nd and 3rd petitioners stated they went tochange tyres and the bomb throwing occurred when the vehicle was passingHarischandra Vidyalaya. The van stopped in the consequent -confusion and trafficblock and they had been taken into custody. The detention until 20.12.87 was underRegulation 19(2). 1„'
The respondents contend that the arrests were on 09.10.87, 22.10.87, 21.11.87 and20.12.87 and the application of. the petitioners made on 29.01.88 was time barred. Inany event the complaint was regarding the detention order of 20.12.87. Further thepetitioners knew they had been wrongly arrested and .detained and representationshad been made on their behalf to His Excellency the President oh 11I1Q.87 and earlierto the 7th respondent on 13.10.87.
Held –
Before delay in coming before Court within a period of one month from the dateof infringement can be excused for want of knowledge the petitioner was not freeto come before Court. Knowledge of the contents of the detention order was hereessential. Further the impugned detention was a continuing infringment.
Regulation 17(1) does not require the service of a copy of the detention order onthe detainee at the time of his arrest. Under Regulation 17(2) such Order wouldbe sufficient authority to any Police Officer or member of the Forces to detain incustody the person named.therein without informing him of the reason.
Regulation 17(5) requires the Secretary to the Ministry of Defence.to afford theearliest practicable opportunity to the defence to make representations tc thePresident and inform him of his right to make his objections to the AdvisoryCommittee established under Reg. 17(4).
The entire period of detention from 20.12.87 is a single detention though several
detention orders were issued. It wouid lead to injustice if the petitioners werelimited to the detention order of-20.12.87.1
An Additional Secretary can sign the detention order not as a result of delegationof power but because he is empowered to sigh by Regulation 17(1) read with
• Regulation 2(1).
In its narrow sense mala tides' means personal animosity, spite, vengeance,personal benefit to the authority itself or its relations and friends. At times theCourts use the phrase ‘male tides' in the broad sense of any improper exercise •or abuse of power. It does not necessarily impiy any moral turpitude as a matterof law. It only means that the statutory power is exercised for purposes foreign tothose for which it is in law intended. Where power is used unreasonably or forimproper purpose such conduct is mala fide even though the authority may not be
– guilty of intentional dishonesty. Even a mistaken opinion will not invalidate adetention order and want of good faith can be established only by proof positivethat.the Secretary did not form that opinion.
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The driver and the lay aide were arrested because they were at the scene in theThero's van. The Thero was arrested because all the persons who werequestioned suspected him. It is difficult to treat an arrest effected in thesecircumstances as reasonable.
The detainees were kept in custody for 73 days under Reg. 19(2) pendinginvestigations. When the maximum period of detention under Reg. 19(2) wasabout to expire the 7th respondent recommended an order under Reg. 17(1) andthe Order made on 20.12:87 was kept continued indefinitely. On the facts theonus had shifted to the 7th respondent to negative mala fides. This he failed todo.
.The allegation was that the Thero discussed the elimination of Ministers and highPolice Officers and the collection of arms and money by robbery to finance JVPactivities but the Thero vehemently denied this and identified Susil Karunanayakeon whose statement the 2nd and 7th respondent relied as being a person whohad reason to be ill disposed towards him. These respondents must take lullresponsibility for the unfounded allegations made by them and for theincarceration of the petitioners referable to such allegations. The 7th respondent(and his Additional Secretaries) signed orders mechnically on the request of theirsubordinates. The 2nd and 7th respondents acted mala fide in making seriousallegations not supported by any material worthy of credit. The 7th respondentand his Additional Secretaries never held the opinion they claim to haveentertained.
The power of preventive detention is qualitatively different from that of punitivedetention. The essential concept of preventive detention is the opinion that thedetention is not to punish.
No reasonable person could have on the available material formed the opinionthat the petitioner should be detained in the interest of national security ormaintenance of public order. Once they were cleared on the bomb throwingcharge they were entitled to have been released. The failure to release isevidence of malice in law. The detention order is therefore unlawful.
Cases referred to:
Siriwardena v. Rodrigo 1986 1 Sri LR 384, 387
.2. Gamaethige v. Siriwardena 1988 1 Sri LR 384, 402
Kumaranatuge.v. Samarasinghe FRD (2) 347, 360
Kottunage Somaratne Ranasinghe v. Ceylon Plywood Corporation FRD (1) p.,91
Gunasena Thenabadu v. University of Ceylon FRD (1) p. 63
Jayasena v. Soysa FRD (1) p. 97
Ganeshanathan Jeganathan v. Attorney-General FRD (2) p.257
Sahul Hameed v. Stanley Ranasinghe et al SC Appln. No. 78/87 – Supreme CourtMinutes of 20.06.89
.C—
Uversidge v. Sir John Anderson 1942 AC 206
Hirdaramani v. Ratnavali 75 NLR 67
SC Sasanasiritissa Thero and Others v. P.A. De Silva and Others (Kulatunga, J.) 359
V
Greene v. Secretary of State for Home Affairs 1942 AC 284
Jaichand v. West Bengal AIR 1967 SC 483, 485
Gunasekera vs. Ratnavale 76 NLR 316
Yapa v. Bandaranayake 1988 1 Sri LR 53APPLICATION for infringment of fundamental rights.
A. A. de Silva with K. Tiranagama, Ms. S. Jayatilleke, Nimal Punchihewa and M.C.Jayaratne for Petitioners.
D.S. Wijesinghe with Ms. D. Dharmadasa for 1st respondent
J.W. Subasinghe, P.C. with Ms. T. Keenawinna and- Ms. R. Dolwatte for 2nd
respondent
Ben Eliyathamby, P.C. with S.J. Mohideeh and Ms S. de Silva for 3rd respondentL.C. Seneviratne, P.C. with M. Abdul Rahuman for 5tfi and 6th respondents.
Rohan Jayatilleke, D.S.G. with Suhada Gamlath, S.C. for 4,7,8 and 9th respondents. .
Cur. adv. vult,
July 27, 1989.
KULATUNGA, J.
The petitioners in applications Nos. 13-15/88 have sought reliefsfrom this Court fpr infringement of fundamental' rights arising fromtheir arrest and detention under the Emergency Regulations. Theywere arrested on 09.10.87 as a result of a bomb explosion on theoccasion of the Mahapola Celebrations at Harischandra Vidyalaya,Negombo.
Of consent the applications 13-15/88 were consolidated and heardtogether. The petitioner Thero in application No. 13/88 is, accordingto his petition, the Viharadhipathi of Susiridinitharamaya Katuwapitiyain the Katana electorate and Viharadhipathi of Sri DharmarajaViharaya of Hellawagedera in the Divulapitiya electorate. He is thepatron of the Sri Lanka Freedom Party Central Organisation in theKatana electorate. His work for the party includes the collection offunds and enrolment of members for the party. The petitioner inapplication No. 14/88 one Saman Kumara was his driver and thepetitioner in application No. 15/88 one Jayawardena was his lay aideduring the relevant period.
On 06.10.87 the petitioner in application No. 13/88 addressed aS.L.F.P. rally at Raddoluwa, Seeduwa. The rally was also addressedby Mrs. Sirimavo Bandaranaike. The petitioner says that in hisspeech he was critical of the government and the 5th respondent,
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Member of Parliament for Katana. According to the newspaper reportP2, the main topic was the Peace Accord with India.
It is the position of the petitioner that on account of political andother differences the 5th respondent was displeased with him andalong with the 6th respondent caused him and the petitioners in theother two applications to be arrested and detained mala fide and onpolitical considerations in derogation of his rights guaranteed byArticles 12(1), 12(2), 13(1), 13(2) and 14(1) of the Constitution.
The petitioner states that meetings of an organisational naturewere also held in his temple on behalf of the party and that his vanNo.. 27 Sri 9955 is used for private as well as religious activities ofthe area and also for propaganda work of the S.L.F.P. and people inKatana and Negombo electorates are well aware that the said vanbelongs to the petitioner. The fact that the said van was being soused was not seriously challenged at the hearing.
It is common ground that 09.10.87 was a day on which the KatanaMahapola Celebrations were being held at Harischandra Vidyalaya,Negombo. The 5th respondent states that Mr. M.S. Amarasiri, Hon.Minister of Trade & Shipping was the chief guest on that date andwas being conducted with him to the school when a bomb explosionoccurred around 6.30 p.m, when the procession was entering theschool premises. According to the 5th respondent two objects whichhe recognised to be hand grenades were.thrown one of which strucka student in the procession and rolled on to the ground a few yardsfrom Mr. Amarasiri and himself, but it did not explode. The otherexploded causing injuries to several persons including the 6threspondent, his Public Relations Officer. He was not aware whothrew the grenade.
The petitioner states that he came to know that at the time his vandriven by its usual driver Saman Kumara and his aide Jayawardenahad been about seventy five yards away from the place where thebomb had exploded. He states that the van had come to the town tochange tyres and denies that the driver or the aide had anything todo with the incident.
The petitioner admits that at the time of the bomb explosion, hewas in the house of one Justin de Silva two miles away from thescene and had thereafter gone to a temple with the said de Silva tomake arrangements for a religious function. He had no knowledge ofthe incident but came to know on 09.10.87 itself that the said van
SC Sasanasiritissa Thero and Others v. P.A. De Silva and Others (Kulatunga, J.) 361
with the driver and aide had been taken into custody by the 1strespondent who was the Chief Inspector, Negombo Police.
According to the petitioner, he returned to his temple atKatuwapitiya in the night of 09.10.87. The same day he was arrestedby the 1st respondent without informing him of the reason thereforand was taken to the Negombo Police Station without permitting anydayakaya to communicate with him or to visit him. He was kept bythe cell in which Saman Kumara and Jayawardena were detained.
The petitioner alleges that he was kept in the Police Station in thecustody of the 1st respondent till 22.10.87 when the 2nd respondentsucceeded the 1st respondent as Headquarters Inspector. He wasthen brought to Pelawatte Prison Camp and kept in custody and on
.transferred to the New Magazine Prison where he was keptuntil 25.12.87 on which date he was taken to the Negombo PoliceStation along with Saman Kumara and Jayawardena representingthat this was to effect their release. However, they were in factdetained in the Negombo Police Station till 01.01.88.
On 01.01.88 the petitioner and the other two detainees werebrought back to the New Magazine Prison and he was served with adetention order under Regulation 17(1) of the Emergency Regulationsdated 20.12.87 signed by the 7th respondent (P4).. The petitioneralleges that after his arrest he was not produced before a Magistrateor any competent Court. He now understands that his detention till
had been on detention orders made by the 3rd respondentunder Regulation 19(2) of the Emergency Regulations which orderswere not shown to, or served, on him.
The petitioner contends that his original arrest on 09.10.87 andcustody and detention and continued custody under detention orderP4 are violative of his fundamental rights under Articles 12(1), 12(2),13(1), 13(2) and 14(1) in that he had beeri arrested without anyevidence and that such arrest and detention were contrary to law,mala fide and made at the behest of the 5th and 6th respondents toprevent him from speaking against the government' arid the 5threspondent and to cause harm and prejudice to him and his politicalideas; and further alleges that in furtherance of such motivation the1st respondent, was transferred out. of Negombo to the CID and the2nd respondent who was willing to oblige the 5th respondent wasappointed as Headquarters Inspector; Negombo to inquire into thealleged bomb throwing at Mahapola on 09.10.87.
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Upon the service of the detention order on 01.01.88 the petitionertook steps to file his application within one month from such serviceand for that purpose had to obtain the special permission of theInspector General of Police to sign his proxy and affidavit. In hispetition filed on 29.01.88 the petitioner prays for a declaration that thedetention order dated 20.12.87 is illegal and invalid, for a declarationfor his release from detention, and for damages in a sum of Rs.100,000/-.
The petitioners in applications Nos. 14 and 15/88 who were alsodetained on similar orders state that they were taking the van No. 27Sri 9955 to change tyres and the bomb throwing occurred when the° vehicle was passing Harischandra Vidayalaya and in the confusionthat ensued and the consequent traffic block the van stopped andthey were taken into custody by the 1st respondent. They denyhaving committed any offence and believe that they were taken intocustody because they were the driver and lay aide respectively of thepetitioner Thero. They complain that the detention order dated
is violative of their fundamental rights guaranteed by Article13 of the Constitution. They also rely on the facts set out in theThero’s affidavit and pray for a declaration that the said detentionorder dated 20.12.87 is illegal and invalid and for damages which• each of them assesses at Rs. 30,000/-.
The detention imposed by the order dated 20.12.87 on eachpetitioner was continued during subsequent months by fresh orderswhenever the emergency was extended. The petitioner was releasedwhen the emergency was revoked on 09.01.89 whilst the other twopetitioners had been released in December, 1988.
-Objection was taken particularly by the 1st and 3rd respondentsthat the petitioners cannot invoke the jurisdiction of this Court as theyhave filed their applications after the lapse of one month prescribedby Article 126(2) of the Constitution. It was submitted that they werearrested on, 09.10.87 and the detention orders under reference weremade on 09.10.87, 22.10.87 and 21.11.87 and 20.12.87. It was urgedthat the applications filed on 29.01.88 are time barred in thecircumstances and that in any event the Thero could' have filed hisapplication within one month of the alleged infringement of his rightsparticularly having regard to the fact the representations were madeon his behalf to His Excellency -the President by JeyarajFernandopulle Attorney-at-Law and President of the Central
SC Sasanasiritissa Thero and Others v. P.A. De’ Silva and Others (Kulatunga, J.) 363
Organisation of the SLFP in Katana electorate on 11.10.87 (P5) andto the 7th respondent on 13.10.87 (P6).
It was also submitted that in any event each of these petitionershas sought relief only in .respect of the detention order dated
and as such they may not canvass the validity of theoriginal arrest or the detention orders made prior to or after thedetention order dated 20.12.87. Mr. Subasinghe P C. submitted thatthe only point for decision by us is the validity of the detention orderdated 20.12.87.
I agree that each of the petitioners have in their petitions soughtreliefs only in respect of the detention order dated 20.12.87. Theirexplanation for filing the application on 29.01.88 is that the said orderwas served on them on 01.01.88. This is confirmed by the 2ndrespondent's objections wherein he states that the said orders werereceived on 31.12.87 and accordingly the detainees were transferredto the Welikada remand prison on 01.01.88.
It is true that the want of knowledge of the infringement may in anappropriate case be accepted as a valid, excuse for the delay incoming before this Court within a period of one month from the dateof the infringement. Siriwardena v. Rodrigo (1) Gamaethige v.Siriwardena(2).
However, before the delay can be excused for want of knowledgeit must be established that without such knowledge the petitioner wasnot free to come before this Court. In this case, it may be argued thatthe petitioners were in custody which they all along alleged to beunlawful and hence the lack of knowledge of any detention order wasnot a constraint in seeking reliefs at an earlier date. As against thisthere is the fact that they were originally arrested for an alleged bombthrowing and were detained under Regulation 19(2) of theEmergency Regulations. If upon the termination of such detention itwas sought to detain them under Regulation 17(1) the petitionersmay justifiably contend that they could not have made any effectiveapplication for relief unless they were informed of the fresh ground oftheir continued detention.
Regulation 17(1) does not require the service of a copy of thedetention order on the detenu at the time of his arrest. UnderRegulation 17(2) such order would be sufficient authority to anyPolice Officer or a member of the Forces to detain in custody theperson named therein; and such person may be lawfully seized
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without informing him of the reason therefor as is required in the caseof an arrest for an offence – see Kumaranatunge v.Samarasinghe{3).
However, Regulation 17(5) requires the Secretary to the Ministry ofDefence to afford the earliest practicable opportunity to the detenu tomake representations to the President and to inform him of his rightto make his objections to the advisory committee established byRegulation 17(4). Even though the service of the detention order isnot required at the time of taking him into custody the right to makerepresentations would carry with it the right to be provided with acopy of such order the knowledge of which is vital to the effectualexercise of such right.
The knowledge of the detention order could, in a particular case,be even more vital if the detenu chooses to seek relief for theviolation of his fundamental rights. I am of the opinion that this issuch a case and that without the knowledge of the order time will notrun against the petitioners.
The preliminary objection to these applications can be disposed ofon another ground although the Counsel for the petitioners did notraise it before us. The ground is that the impugned detention is acontinuing infringement and that it would be competent to a detenu tomake his application within one month from any date on which hesuffers such detention and not necessarily within one month from thedate of such order. If so, these applications filed on 29.01.88 are instrict compliance with Article 126(2) of the Constitution and noquestion of our considering any excuse for delay arises. The exactdate of these applications would in this view of the matter only berelevant to the quantum of-relief under Article 126(4).
For the foregoing reasons, I overrule the preliminary objectionraised by the respondents.
Before I leave this part of the judgment, I must express my view onthe submission that the only point for consideration is the detentionorder of 20.12.87. I cannot agree. Even though we cannot grant reliefon the ground of the original arrest and- the detention prior to
whether on account of the time bar or on account of the factthat the petitioners have not sought reliefs in respect thereof, still for- all those events are-relevant in considering the issues in this case.
As regards the continued detention subsequent to the order dated20.12.87, this Court is competent to rule on the entire period of
SC Sasanaslritissa Thero and Others v. P.A. De Silva and Ottiers (Kulatunga, J.) 365
detention of the petitioners covered by the relevant detention orders.All such subsequent orders were made under the same regulationsand on the same ground. With his further affidavit dated 13.12.87 7threspondent filed seven such orders (7R2-7R8) and sought to defendthem as against the Thero, in view of the present state of security inthe country. Even though no further detention orders have beenproduced in respect of the other two petitioners, I presume that tl^eircontinued custody is covered by similar detention orders.
In my view, the entire period of detention from 20.12.87 is a singledetention in respect of which relief may be sought; It would lead toinjustice if the petitioners were limited to the order dated 20.12.87 inthe matter of relief. If it were otherwise it could' even, lead to anabsurdity in that we would be compelling them to file as manyfundamental right applications as there are detention orders all ofwhich have been made after the petitioners invoked the jurisdiction ofthis Court.
I now proceed to examine the merits of the case fpr, the petitioners.The main objections have been filed in application. Tslo. 13/88 inrespect of the Thero-and similar objections have' been filed inapplications Nos 14 and 15/88. in respect of his driver and the. layaide. As such, I shall first examine the Thero’s case.
The affidavits of the 7th and 8th respondents dated 21.04.88 arevery brief. The 7th respondent (Secretary, Ministry of Defence) statesthat he issued the detention order under Regulation 17(1) of the.Emergency Regulations in respect of the petitioner at the request ofthe 8th respondent (Inspector General of Police) after dueconsideration of the material placed before him by the 8th respondentand on that material forming the opinion that it was necessary to doso to prevent the petitioner from acting in any manner prejudical tothe national security or to the maintenance of public order.
The 8th respondent states that the material placed before him bythe 3rd respondent (DIG Ekanayake) indicated that the investigationswere incomplete as at 20.12.87 and requested the 7th respondent toissue a detention under Regulation 17(1) of the EmergencyRegulations and the 7th respondent issued a detention order dated20.12.87.
The 3rd respondent in his affidavit dated 29.04.88 admits havingissued three detention orders. (3R1, 3R2 and 3R3) under Regulation19(2) of the Emergency Regulations covering the petitioner’s
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detention up to 20.12.87 on the reports of the Superintendent ofPolice (3R1(a), 3R2(a) and 3R3(a)). These reports request thedetention of the petitioner who had been taken into custody inconnection with the bomb throwing incident on 09.10.87 pendinginvestigations. The report 3R1(a) in particular shows that theinvestigations referred to were in respect of the bomb throwingincident involving offences under Regulations 23B and 36(1) of theEmergency Regulations. The 3rd respondent denies that the saidorders were issued arbitrarily and adds that he acted bona fide in theperformance of his duties.
As regards the detention order dated 20.12.87 the 3rd respondentstates that he does not carry out investigative functions and isunaware of the facts and circumstances of the petitioner’s detention;and submits that as the said order was made by the 7th respondentthe detention of the petitioner is not due to any executive oradministrative action taken by him and as such the application ismisconceived in so far as it seeks relief against him.
There is thus no support in the 3rd respondent’s affidavit for theposition taken by the 8th respondent which is to the effect that inapplying to the 7th respondent for a detention order under Regulation17(1) he relied on the material placed before him by the 3rdrespondent. On the contrary, the 3rd respondent disclaims anyresponsibility in his part for the said order.
However, the position taken by the 3rd respondent would not in thecircumstances" of this case require us to reject the version of the 8th.respondent. Even though the 3rd respondent has formulated hisdefence in language which is capable of the construction that he hadnot placed any material before the 8th respondent for the purpose ofobtaining a detention order under Regulation 17(1), the affidavit ofthe 2nd respondent and in particular, the document 2R1 shows thatthe 3rd respondent was the DIG Greater Colombo Range whichincludes Negombo. As such, it is probable that the request for'thedetention order might have been channeled through him.
Even so, the position taken by the 3rd respondent is relevant toanother issue which I shall consider later on in this judgment namelywh'ether the 7th respondent or the officers who advised him gavetheir minds at all to the conditions precedent for an order underRegulation 17(1) as asserted by then/
SC Sasanasiritissa Thero and Others v. P.A. De Silva and Others (Kulatunga, J.) .367
The 2nd respondent , who succeeded the 1st respondent asHeadquarters Inspector, Negombo in his affidavit dated 04.05.88refers to his report dated 09.12.87 addressed to his AssistantSuperintendent of Police, Negombo (2R1). He states therein that asthe petitioner and the other two detainees who had been taken intocustody in connection with the bomb throwing would complete 73days of detention on 20.10.87 and as the investigations in that regardwere not over he would recommend the submission of the case tothe Secretary, Ministry of Defence for an order under Regulation17(1) of the Emergency Regulations.
The A.S.P.’s recommendation to his Superintendent of Police wasthat there was no evidence to connect the suspects with the bombthrowing incident. The S.P. summoned the A.S.P. for a discussion atwhich, according to the 2nd respondent, the O.I.C. CounterSubversive Unit, Negombo was present. After the discussion, it wasdecided that the investigations were incomplete and that, papersshould be prepared to obtain an order under Regulation 17(1)- The2nd respondent prepared the necessary papers and forwarded thesame to the A.S.P.(1), Negombo.
The 2nd respondent urges, the following grounds as justifying thedetention of the petitioner and the other. two suspects underRegulations 17(1).
There was information that the .petitioner had in defiance of thecurfew with a number of youths put up black frags against thePeace Accord in July, 1987. ,
The petitioner had been holding frequent meetings in histemples attended by youths.
At the time of his arrest the petitioner had in his possession aJVP pamphlet which the petitioner explained had been given to
. him by some person at the SLFfy meeting on 06.10.87.
The petitioner’s van and the other two suspects had been foundin close proximity to the place where the explosion took place.
Subsequent investigations led to the arrest of one Sunil, a closerelative of the petitioner and several other JVP suspects. Theinvestigations revealed –
that' the said Sunil and other subversives had met thepetitioner at the Katuwapitiya temple; '
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that they discussed with the petitioner the elimination ofMinisters of State, High Police Officials and those workingagainst the JVP;
that there had been discussions as to the acquisition ofarms and money by robbery.
In his affidavit dated 13.12.88, the 7th respondent has repeatedalmost verbatim the said grounds adduced by the 2nd respondent injustification of the order under Regulation 17(1), and adds that one ofthe persons arrested by the Police on 15.04.88 had stated that thepetitioner had instigated them to commit robbery of fire arms andother articles for the benefit of the JVP. This was backed up byfurther affidavit dated 14.12.88 by the 2nd respondent to which isannexed marked 2R2 the statement dated 09.05.88 of one SusilKarunayake whom he states is the man referred to as ‘‘Sunil” in hisaffidavit dated 04.05.88. This suspect had been arrested on 15.04.88.along with four others.
According to the 2nd respondent, Police recovered fromKarunanayake’s house weapons inlcuding a gun and a kris knife, ahand bomb, a motor cycle, a push bicycle and other valuables. In hisstatement 2R2 he admits being a JVP member and a robber andmakes the following references to the pettioner.
that he ia related to the petitioner
that youths visit the temple at night and on certain days they plotagainst the UNP;
one day he with another JVP member met the petitioner at thetemple and discussed the future of the JVP;
he with others who used to visit the temple pasted antigovernment posters.
The statement 2R2 is produced presumably to support theallegations contained in the affidavits of the 2nd and 7th respondents.However, it does not support the most serious allegations made bythem namely:
That they discussed with the petitioner the elimination ofMinisters of State, High Police Officials and those workingagainst the JVP.
That the petitioner either discussed or instigated the robbery ofmoney and fire arms and other articles for the benefit of the JVPor for other reason.
SC Sasanasiritissa Them and Others v. P.A. De Silva- and Others (Kulatunga, J.) 369
In his further affidavit dated 03.08.88 the petitioner denies theallegations made against him by the 2nd and 7tht respondents andstates that Susil Karunanayake is &ngry with him1 as he (thepetitioner) is the chief witness for the prosecution in M.C. Negombocase No. 22676 (P7) in which the sgid Karunayake is charged withhaving, cut one Appuhamy with a sword on 10.06.86. The petitioneralso produced marked P8 a copy of a letter dated 07.03.88 sent bythe Attorney-General advising the Police on the case relating to theaforesaid bpmb throwing incident of 09.10.87 that no further action iscontemplated against the petitioner, and the other two persons andthat they could, be discharged.
The .petitioner reiterates that his continued detention is mala fideand invalid.
The 1st respondent (HQ.I. Negombo Police) states that on09.1.0.87 the driver and the lay aide'of the petitioner were taken intocustody upon reasonable suspicion of having been concerned in thebomb throwing; that at the time he visited the scene they had beenarrested by Police Officers attached to the Mahapola Police Post; thatpersons present at the scene- were questioned and all suspected thepetitioner for the bomb throwing; that the van had followed themotor-cade of the Minister; that on. .the ground of informationgathered at the scene he caused the petitioner to be arrested; that hehad reasonable suspicion that the petitioner was concerned in thecommission of an offence under Emergency Regulations especiallyhaving regard to the fact that an attempt had been made on'the lifeof two Ministers .and public officers including Police Officers. Nostatement recorded of a by-stander at the scene has been placed inevidence before us.
. The 5th and 6th respondents deny the allegation that they hadinstigated the arrest and detention of the petitioner. All the otherrespondents deny the allegation that they acted at the behest of the5th and 6th respondents ‘and deny the – alleged violation offundamental rights.
I also observe that out of the eight detention orders produced inrespect of the petitioner 3 have been signed by the 7th respondentwhilst five have been signed by Additional Secretaries of Defence onbehalf of the 7th respondent. Learned Counsel for the petitionerssubmitted that this is a delegation of power which is not permitted byRegulation 17(1). .Under.Regulation 2(1) "Secretary to the Ministry ofDefence’’ includes any Additional Secretary to the Ministry of
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Defence. Such an Additional Secretary is also empowerd to sign adetention order. He derives his power from Regulation 17(1) readwith Regulation 2(1) and hence no question of delegation of powerarises.
In considering the claims of the petitioner it would be appropriate tofirst dispose of the case against the 1st, 3rd, 4th, 5th, 6th and 8thRespondents. In view of my finding that the petitioners have soughtrelief only in respect of the detention order dated 20.12.87 there is nocase for the 1st respondent to answer. As regards the 3rdrespondent, he was only the channel of communication for thetransmission of the request for the relevant detention order to the 7threspondent which fact would be insufficient by itself or consideredwith his other conduct in the case to found a claim for relief againsthim. The 4th respondent (Commissioner of Prisons) states that on12.12.87 the Superintendent, Magazine Prison gave a message tothe H.Q.I. Negombo Police that the period of detention of thepetitioners would expire on 20.12.87 and that they were due to bereleased on that date; and thereafter detained them on detentionorders dated 20.12.87 issued by the 7th respondent. He cannot beheld liable for any infringement of fundamental rights on this material.
The 5th and 6th respondents have denied the allegation that theyinstigated the arrest and detention of the petitioners for politicalreasons. Mr.. L.C. Seneviratne P.C. submitted that the allegationsincluding the alleged threats by those respondents against the Theroare vague and have not been established by admissible evidence;that some of the allegations are based on mere belief not founded onpersonal knowledge or other facts; that there is no corroborativeevidence in support of the allegations.
The learned Counsel drew our attention to the fact that eventhough Mr. Jeyaraj Fernandopulle Attorney-at-Law and chieforganiser of the SLFP in Katana had sent communications to HisExcellency the President on 11.10.87 (P5) and to the 7th respondenton 13.10.87 (P6) making allegations against the 5th respondent hehas failed to give an affidavit in-support of such allegations; and thatthe charge against the 5th and 6th respondents has not been madeout.
• In Kottunnage . Somaratne Ranasinghe v. Ceylon PlywoodCorporation(4) this Court dismissed the application for the' reasonthat the alleged discrimination on the ground of the petitioner’spolitical opinion had been denied and has not been established as a
SC Sasanasiritissa Thero and Others v. P.A. De Silva and Others (Kulatunga, J.) 371
fact. In Gunasena Thenabadu v. University of Colombo{5) it was heldthat the petitioner is obliged to supply sufficient proof of theaverments which are denied by the respondent.
In Jayasena v. Soysa(6) where allegations of political, motivationwere made this Court was unable, considering the gravity of thecharge, to hold that the allegation had been established. The Courtobserved that – “apart from the bare assertions contained in thepetition and affidavit of the petitioners, we do not find any othermaterial which directly substantiate these imputations”.
The allegations against the 5th and 6th respondents are of aserious nature which if proved will carry with them seriousconsequences. They must therefore be strictly proved by cogentevidence. Ganeshanathan Jeganathan v. Attorney-Generai(7). Suchconsequences are not limited to acts of persons acting in anexecutive capacity. The Court has the power to grant relief (includingdamages) even in respect of non-executive acts where therespondent is proved to be guilty of impropriety or connivance withthe executive in the wrongful acts violative of fundamental rights.Sahul Hameed v. Stanley Ranasinghe et al (8).
In the light of the relevant principles of the law and the facts,. I holdthat the allegations against the 5th and 6th respondents have notbeen established.
The only part played by the 8th respondent is that he requestedthe 7th respondent to make the impugned detention order. It is notalleged that such request was made mala fide or for an improperpurpose. As such, he has not violated the fundamental rights of thepetitioner.
That brings me to the 2nd and 7th respondents. It was submittedin their behalf that the impugned order was for preventive detentionwhich is lawful under our Constitution; that according to precedentsboth in England and Sri Lanka an order valid on its face is asufficient defence; the decision to detain the petitioners to preventthem from acting in any manner prejudicial to national security or tothe maintenance of public order is a subjective decision which is notjustifiable except on the ground of mala fide which, the petitioner mustestablish; and that on the available material the petitioners havefailed to discharge this burden. Further it appeared to me during thehearing that in the opinion of the learned Deputy Solicitor General,there was overwhelming justification for making the detention orderon the basis of the available material.
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Learned Counsel for the 2nd respondent submitted that the furtheraffidavits of the 2nd and 7th respondents were really not necessaryand were filed in deference to a direction of this Court given on09.12.88. Learned Counsel attributed this direction to an acceptanceof the minority judgment in Uversidge v. Sir John Anderson (9). Myown analysis of the evidence has led me to the conclusion that thesaid order was warranted even upon the application of authoritiesrelied upon by learned Counsel in that the available materialsuggested a prima facie inference that the detention order was notmade in good faith and the onus had shifted to the 7th respondent tonegative such inference. See Hirdaramani v. Ratnavale (10).
Now this case can be decided on the basis of the principleshitherto laid down in England and in this country and applicable tothe relevant Emergency Regulations. What is required is not a searchfor legal principles in the matter but the application of the principlesalready settled by Courts to the particular facts of this case.
In the English decisions the power of the Secretary of State forHome Affairs to make an order that a person be detained underRegulation 18B of the Defence (General) Regulation 1939 came forinterpretation. He is empowered to make an order where he hasreasonable cause to believe a person to be of hostile associationsand that by reason thereof it is necessary to exercise control overhim. In the Uversidge case, the appellant who had been detainedsued the Home Secretary claiming damages for false imprisonmentand applied for particulars as to the grounds of belief on which theorder was made. The good faith of the Secretary was not challenged.The Secretary made no affidavit in defence but denied the allegationof unlawful detention. It was held, Lord Atkin dissenting, that what isin issue is the state of mind of the Se etary and the order being amatter for executive discretion cannot be examined by Court providedthat he acts in good.faith. The Court will not compel the Secretary todivulge the grounds in view of confidentiality and the public interest.
In Greene v. Secretary of State for Home Affairs (11) the relief byway of a writ of habeas corpus was sought against an order underRegulation 18B. It was held that the production of the Secretary’sorder, the authenticity and good faith of which is in no way impugned,constitutes a complete and peremptory answer to the application; andthere is no need to submit an affidavit. The circumstance that theSecretary was not bound to disclose the grounds or some of the
SC Sasanasiritissa Thero and Others v. P.A. De Silva and Others (Kulatunga, J.) 373
grounds on which he formed his belief was considered relevant tosuch a conclusion.
It is apparent that in the cases of Liversidge and Greene, theHouse of Lords determined the scope and the extent of theSecretary’s discretion with the least impediment to the war effortemphasising the need to secure public safety and the defence of therealm over the liberty of the individual.
Under Regulation 17(1) of the Emergency Regulations theSecretary may make an order if he is of the opinion that such orderis necessary for any of the purposes set, out therein. In theHidaramani case this court was called upon to interpret Regulation18(1) which corresponded to the present Regulation 17(1). It washeld applying the principles in Liversidge and Greene’s cases thatthe production of the order concludes the matter, unless good faith isnegatived; that unless a prima facie case of bad faith is made out theonus does not shift to the Secretary to establish his good faith; thatif the onus has not shifted to him he need not file an affidavit and ifhe does no adverse inference can be drawn from the circumstancethat the grounds actually stated in the affidavit may be vague orincomplete.
The ruling in the Hirdaramani case was reached in circumstanceswhich are very different from those present in the English cases.Thus the impugned order was not made under war legislation but interms of Emergency Regulations made in the background of the 1971insurrection which of course gave rise to a grave emergency. At thetime of his detention, there were allegations of serious violations ofthe law relating to exchange control against the corpus. Thepetitioner alleged that the order was made with an ulterior motivenamely to facilitate intensive investigations into the alleged exchangecontrol offences. The Secretary filed an affidavit wherein inter alia, hereferred to an admission by the detenu that he had paid a sum of Rs.1,729,00/- to certain foreign nationals in Ceylon in consideration ofpayments of foreign currency illegally- made abroad to the credit ofthe detenu but stated that he could, not by reasons of public securitydisclose all the matters which led to his opinion. Nevertheless theSecretary added that he was prepared to make the relevant materialavailable for the perusal of the Court – an offer which the Courtdescribed as a mark of good faith. Eventually the Court did reviewthe order itself, H.N.G. Fernando CJ', stating that he considered itnecessary, in view of the confident challenge to the good faith of the
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Secretary, to pronounce upon the merits of that challenge in thepublic interest.
The Hirdaramani judgement is particularly important for reason thatit expounds the doctrine of mala fides in administrative law withparticular reference to the exercise of powers under EmergencyRegulations.
In its narrow sense mala fides means personal animosity, spite,vengeance, personal benefit to the authority itself or its relations orfriends. At times the Courts use the phase ‘mala fides’ in the broadsense of any improper exercise or abuse of power – see Principles ofAdministrative Law Jain & Jain 4th Edition 562. The author cites thedecision in Jaichand v. West Bengal (12) in which the Courtobserved –
“ mala fide exercise of power does not necessarily imply
any moral turpitude as a matter of law. It only means that thestatutory power is exercised for purposes foreign to those forwhich it is in law intended”.
Where power is used unreasonably or for an improper purposesuch conduct is mala fide even though the authority may not be guiltyof intentional dishonesty – Wade Administrative Law 5th Edition 391.
In what situations may the Court interfere with the order of theSecretary on the ground of mala fides? It was contended that thedetention of Hirdaramani was made with an ulterior motive. The Courtheld that the petitioner had failed to estabish a prima facie case of
such motive. H.N.G. Fernando CJ observed – “ it will not by any
means suffice for the petitioner to establish that the PermanentSecretary was mistaken in thinking that the detention of the detaineewas necessary for the stated purpose. Even a mistaken opinion willnot invalidate a detention order, and want of good faith can beestablished only by proof positive that the Secretary did not indeedform that opinion”.
The Chief Justice proceeded to state his views as to the nature ofthe facts which, may justify the Court in examining an allegation of- bad faith such as antecedent motive and bias and adds –
“There may be instances in which the truth of a reason or anopinion stated by an official in an executive order, can bedisproved by evidence or statements of the official containingsome different, reason or opinion, or tending to show that thestated reason or opinion is incorrect or untrue. It is also remotely
SC Sasanasiritissa Them and Others v. P.A. De Silva and Others (Kulatunga, J.) 37b
possible that an opinion stated in an executive order ismanifestly absurd or perverse”.
G.P.A. Silva J. referred to collateral purpose whilstSamarawickrema J. referred to fraud as a vitiating fact and addedthat the burden of proving such an allegation is a heavy burden todischarge and the ratsing of mere suspicion is not sufficient. Inanother part of the judgment Samarawickreme J. said –
“again if there is overwhelming ground for believing that noreasonable Permanent Secretary could form the opinion that it isnecessary to make the detention order in respect Of the personaffected, it might show that the Permanent Secretary is acting inbad faith and that the detention order was not made on thebasis of an opinion required by the Regulation but for animproper purpose”.
G.P.A. Silva J. explaining the circumstances in which the Courtmay call upon the authority for an explanation on the ground that theonus has shifted to him to establish his good faith stated that –
a person complaining against an excess of power by the
executive can only invite the Court’s interference by proof ofmala fides on the part of the officer concerned, at least to theextent of creating in the mind of the Court substantial anddisquieting doubts as to his bona fides, which would warrant anexplanation”.
In the opinion of Samarawickrema J, the question of onus onlyarises where the evidence on either side is evenly balanced. On thefacts, all three Judges reached the conclusion directly or byimplication that on the available material the detention order wasjustified.
In Gunasekera v. Ratnavaie (13) in which a challenge to adetention order made by the Permanent Secretary on the ground ofmala fides failed there was substantial-material against the detenu.Thus, there was evidence to the. effect that on 18.03.71 the detenuhad in his possession –
■s'
a map of Ahangama showing the location of the AhangamaPolice Station indicating the mode in which it might be attacked;
posters and newspapers of the Janatha Vimukthi '-Peramuna(which was proscribed subsequently);
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a set of five lectures setting out the reasons for and the methodsby which the government of Ceylon should be overthrown.
Investigations also revealed, in addition to other incriminating facts,that on 18.03.71 the detenu was residing at the Headquarters of theJanatha Vimukthi Peramuna at Ahangama. Having examined thefacts, Alles J. ruled that the presumption of good faith had not beenrebutted. On the contrary, the Secretary had disclosed relevant andcogent grounds why he thought the corpus should be detainedalthough there was no obligation on him to state these grounds. TheCourt found that malice had not been established in fact or in law.
It is relevant to note that during the period the detention orders inthe Hirdaramani and Gunasekera cases were made the availableremedy against such detention was an application for a writ ofhabeas corpus in terms of Section 45 of the Courts Ordinance andthat such detention did not give rise to an application for relief on theground of infringement of fundamental rights. Besides, it was held inthe Gunasekera case, Wijayatilaka J. dissenting, that Regulation 55which suspended the writ of habeas corpus in the case of personsdetained under Emergency Regulations ousted the jurisdiction of theCourt even on the issue of good faith, a view which did not commenditself to the majority of Judges in the Hirdaramani case. These factorscoupled with the circumstances that there were very few challengesto detention orders during that period when the incidence of suchorders were also much less than now explains the judicial reluctanceto review such orders save in exceptional cases. In such a context,the Court was also naturally more inclined to liberally apply thepresumption of good faith of the Secretary who was the sole authorityunder the Prime Minister competent to make a detention order.Having regard to his high position and the confidence reposed in him,it was unthinkable that he would not exercise his power in good faith.Even so this Court would consider the facts and satisfy itsconscience before dismissing the claim of the aggrieved party.
The situation has since changed in other ways. No doubt theSecretary still holds the very responsible position assigned to him.However, due to the prevailing conditions and prolonged civil strife,his work is bound to increase and he would have to rely increasinglyOn the advice of his subordinates in exercising his powers for whichhe alone js responsible. He is rio longer the sole authority under theEmergency Regulations for any Additional Secretary of the Ministry ofDefence is also competent thereunder to exercise the same powers.
SC Sasanasiritissa Thero and Others v. P.A. De Silva and Others (Kulatunga, J.) 377
Any excesses committed by them are justiciable for violation offundamental rights. It is true that such rights can be restricted by lawin the public interest but powers conferred on him in terms of suchrestrictions must be lawfully exercised. All this would have to be keptin mind in the application of legal principles to the facts of the casebefore us.
I now refer to two recent decisions of this Court in which an orderunder Regulation 17(1) was challenged. In Kumaranatunga v.Samarasinghe (3) the challenge was based mainly on legal groundsall of which failed in particular the contention that Regulation 17(1)provides for preventive detention which is ultra vires Article 13 (4) ofthe Constitution. There was a feeble allegation of mala fides basedon the wording between two detention orders issued on 19.11.82 and20.11.82 respectively. This ground also failed. Soza J. observed thatthe only justiciable issue was mala fides and mala fides had not beenestablished. The total period of Kumarantunga's detention amountedto two months.
In Yapa v. Bandaranayake (14) the detenu was MahindaWijesekera an influential politician and an Attorney-at-Law. Up to thedate of hearing of the application, he had been detained for 109 dayson two detention orders, one of them dated 31.07.87 underRegulation 19(2) and the. other dated 03.08.87 under Regulation17(1) of the Emergency Regulations. It was alleged that the detentionwas mala fide at the instance of Mr. Ronnie de Mel, the Minister ofFinance.
The available material included the Statements of two witnesseswho stated that they saw Mahinda Wijesekera inciting a crowd on themorning of 29.07.87 (the-day of the signing of the Peace Accordbetween Sri Lanka and India) to destroy the bungalow and the officeof the Finance Minister, attack the C.W.E. building and set fire to thePublic Library. The crowd attacked the C.W:E. building and the PublicLibrary whilst a part of. the crowd damaged the Minister’s office andset fire to the bungalow.
It was held that the Secretary was justified on the availablematerial in making the detention order, in good faith.
The Court also, held overruling a submission on behalf of thepetitioner that there is nothing to prevent a detention order under
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Regulation 17(1) from being made while a detention order underRegulation 19(2) is in force, provided the circumstances justified it, asin the present case.
It appears that the instant case is unusual for the length of theperiod of detention. The Thero was in detention nearly 13 monthswhilst his driver and the lay aide were in detention nearly 12 months,under Regulation 17(1) (following a period of 73 days of detentionunder Regulations 19(2)). The Thero was released when theemergency was revoked on 09.01.89 whilst the other two werereleased inDecember, 1988 presumably because the
Attorney-General was unable to support their continued detention anylonger.
Another feature of this case is that the detenu had been 73 daysin detention under Regulation 19(2) immediately preceding the orderunder Regulation 17(1) and the request for the second order wasmade on the ground that investigations were incomplete whereas inYapa v. Bandaranayake the order under Regulation 17(1) was madeon the 3rd day after the making of the orders under Regulation 19(2)on the basis of the evidence already available which indicated thatthe more appropriate order was under Regulation 17(1).
It is also relevant to note that at the time one order underRegulation 17(1) was made in this case the Police had no evidenceto connect the detenu with the offence for which he had beenarrested and detained under Regulation 19(2). This is confirmed bythe Attorney-General’s ruling dated 07.03.88 (p8). Consequently, theSecretary had to rely on other grounds for making the order underRegulation 17(1). However, in Yapa v. Bandaranayake the materialon which the detenu was arrested and detained under Regulation19(2) amply justified that order as well as the second order underRegulation 17(1). The position was confirmed by the statementsrecorded subsequent to the said second order.
The circumstances in which the detenu was arrested on 09.10.87are also relevant to a decision of this case. The detenu may not beentitled to seek relief on account of the said arrest in view of the timebar under Article 126(2) of the Constitution. In any event, in thecontext of the bomb throwing incident which endangered the life oftwo Ministers and other similar incidents during this period this Courtmay not hold the said arrest to be violative of fundamental rightsdeserving the imposition of constitutional sanctions. However, the
SC Sasanasiritlssa Thero and Others v. P.A, Da Silva and Others (Kulatunga, J.) 379
reasonability of such arrest would be relevant in considering the bonatides of the detention under Regulation 17(1).
Thus, as far as the facts are concerned, the driver and the lay aidewere arrested because they were at the scene in the Thera’s van.The Thero was arrested because all the persons who werequestioned suspected him. It is difficult to treat an arrest effected inthese circumstances to be reasonable.
The 1st respondent states that he had reasonable suspicionagainst the Thero, especially as an attempt had been made on thelife of two Ministers and public officers including Police Officers. Theonly link between the attempt on the life of two Ministers and theThero is that the Thero is an influential political opponent of the 5threspondent and the government. The 5th respondent himself has noobjection to mere political criticism. The allegation that he instigatedthe arrest has not been established. If so, the arrest was made'because even unwittingly the Police appear to believe that if anattempt is made on the life of a Minister it would be reasonable toarrest his avowed political opponent. It. would be in the interest of allconcerned to discourage the Police against such a psychology forotherwise the possibility of such arrests would inhibit healthy, criticismso vital to the advancement of fundamental rights and democracy.
The detainees were kept in custody for 73 days under Regulation19(2) pending investigations. No material whatever was placed beforeus as to what those investigations were except perhaps theinvestigations which led to the arrest of Susil Karunanayake and fourothers on 15.04.88.
When the maximum period of detention under Regulation 19(2)was about to expire the 7th respondent recommended an order underRegulation 17(1) and the order made on 20.12.87 was kept continuedindefinitely.
Learned Counsel for the 2nd and 7th respondents submitted thatthe 7th respondent cannot disclose all the grounds for his order dueto considerations of national security. Of the decisions discussedabove, it was only in the Liversidge and Greene's cases that therewas a strict non-discipsure of reasons. In the other decisionsregardless of the right of non-disclosure the respondents havevolunteered as much information as possible.
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In the instant case, the first affidavit of the 7th respondent, byimplication, seeks privilege but the first affidavit of the 2ndrespondent sets out elaborate grounds in justification of the impugnedorder presumably to negative malice. The most vital of these groundsbeing the allegation that the Thero discussed the elimination ofMinisters and High Police Officials and the collection of arms andmoney by robbery to finance JVP activities which was vehementlydenied in the further affidavit of the Thero which affidavit alsoidentified Susil Karunanayake on whose statement the 2nd and 7threspondents relied as being a person who has reason to be illdisposed towards him.
This was the state of the case when it came up on 09.12.88. As Ihave already stated, on that day the Court indicated the need to filefurther affidavits. That was because the onus had shifted to the 7threspondent to negative mala fides. In the words of G.P.A. Silva J., inthe Hirdaramani case the facts gave rise to substantial anddisquieting doubts in the mind of the Court as to his bona fides or inthe words of Samarawickrema J. at that stage the evidence wasevenly balanced. In other words, a prima facie case of mala fides hadbeen made out on the available evidence.'
Thereafter, the 2nd and 7th respondents filed further affidavitswhen the 7th respondent repeated-with greater emphasis the groundswhich had previously been made by the 2nd respondent, in particularthe two most serious allegations referred to above. However, aspointed elsewhere in this judgment there is no support for'the saidallegations in the statement of Susil Karunanayake 2RB.
Whatever pretence there may De in the affidavits of theserespondents as to undisclosed sources of information, I am satisfiedthat the only source of their information on the basis of which theyseek to negative mala fides is 1R2 which falls hopelessly short oftheir expectations. Consequently, these respondents must take fullresponsibility for the unfounded allegations made by them and for theincarceration of the petitioners referable to such allegations. I
I hold that the 7th respondent (and his Additional Secretaries)signed orders mechanically on the request of their subordinates; thatthe 2nd and 7th respondents acted mala fide in making seriousallegations not supported by any material worthy of credit; the 7th
SC Sasanasiritissa Thero and Others v. P.A. De Silva and Others (Kulatunga, J.) 381
respondent and his Additional Secretaries never held the opinion theyclaim to have entertained.
The 7th respondent also failed to consider relevant matters. Beforethe detainees were detained he ought to have considered thecircumstances of their original arrest and detention and satisfiedhimself whether it was necessary in view of their past conduct todetain them in order to prevent them committing further such acts inthe interest of national security or public order. Shukla in Constitutionof India 7th Edition 134 states –
“The essential concept of preventive detention is that thedetention of a person is not to punish him for something he hasdone but to prevent him from doing it. The basis for detention isthe satisfaction of the executive of a reasonable probability ofthe likelihood of the detenu acting in a manner similar to hispast acts and preventing him by detention from doing so. Thepower of preventive detention is qualitatively different from thatof punitive detention”.
It is true that preventive detention is not ultra vires Article 13(4) ofthe Constitution. However, in the instant case, there is noconceivable past act by the petitioners which could have led to theimpugned order. On the contrary they were cleared of the charge onwhich they were arrested; they were then detained in circumstancesin which such detention by reason of its duration constitutes apunishment violative of Article 13(4). This would constitute animproper exercise of power.
I hold that on the available material no reasonable person canpossibly have the opinion that these petitioners should be detained inthe interest of national security or maintenance of public order; but forthe bomb throwing incident they would not have been arrested ordetained at all. Once they were cleared on that charge they wereentitled to have been released. In the circumstances, the failure to sorelease them is evidence of malice in law. The detention order istherefore unlawful.
The 2nd respondent connived at the impugned detention order andis guilty of impropriety in that regard.
The infringement of Articles 12 and 14(1) is based on the groundof political victimisation which has not been established. The
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infringement of Article 13(1) relates to the original arrest in respect ofwhich we cannot grant relief. As such, the Petitioners have onlyestablished an infringement of Articles 13(2).
I must state that there is no case whatever as against thePetitioners in applications Nos. 14 and 15/88. They are mere victimsof the circumstances which I have elsewhere discussed. The furtheraffidavits of the 2nd and 7th respondents do not touch them.
In view of my findings in another part of this judgment. I dismissthe applications against the 1st, 3rd, 4th, 5th, 6th and 8threspondents without costs.
The Petitioners are entitled to a declaration that the impugneddetention is unlawful and that their fundamental rights to freedomfrom arbitrary detention and deprivation of personal liberty have beenviolated by the 2nd and 7th respondents.
These respondents have, by their purported official acts violative offundamental rights, made the State liable for such infraction. Idetermine that the 2nd and 7th respondents have infringed thefundamental rights of each of the petitioners guaranteed by Article13(2) of the Constitution. '
The petitioners are entitled to compensation for the distress andsuffering caused by reason of their detention. Having regard to all thecircumstances, i direct the State to pay the petitioner in applicationNo. 13/88 Rs. 35,000/- as compensation and Rs. 1575/- as costs andeach of the petitioners in applications Nos. 14/88 and 15/88 Rs.12,000/- as compensation and Rs. 787.50/- as costs.
H.A.G. DE SILVA, J. – I agreeBANDARANAYAKE, J. – I agree
Application against 2 and 7■respondents upheld.
Application against 1,3,4,5,6 and 8respondents dismissed