SEBTHILNAYAGAM AND OTHERS v. SENEVIRATNE AND ANOTHER

016-SLLR-SLLR-1981-2-SEBTHILNAYAGAM-AND-OTHERS-v.-SENEVIRATNE-AND-ANOTHER.pdf


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Senthilnayagam v. Seneviratne
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SENTHILNAYAGAM AND OTHERS
v.SENEVIRATNE AND ANOTHER
COURT OF APPEAL.
COLIN-THOME, P.. RANASINGHE, J. AND ATUKORALE, J.
H.C. APPLICATIONS 10/81, 11/81, 12/81 and 13/81.
JULY 28 to 31, 1981; AUGUST 10 to 14, 1981.
Writ of Habeas Corpus-Prevention of 'terrorism (Temporary Provisions/ Act, No. 48 of1975—Detention Orders—Validity thereof—Interpretation (Amendment! Act, No. 18of 1972, section 22.
Held
The words "unlawful activity" as defined in section 31 of the Prevention ofTerrorism (Temporary Provisions) Act, No. 48 of 1979, extend to persons not only onthe periphery of criminal liability but they also encompass any person whose acts"by any means whatsoever" are connected with "the commission of any offence underthis Act", and that includes a person who has committed an offence under the Act.
The detention orders marked 'XT stated that thu grounds for detention were"terrorist activity". The words "terrorist activity” are not only lacking in particularitybut they also do not fall under the definition of "unlawful activity" in section 31 ofthe Act.
The detention orders marked 'X2' were valid ex facie inasmuch as the said ordersspecified an offence under the Act as the basis for detention.
The objection that the detention orders 'XV and ‘X2’ were defective as they did uniname the custodian of the person detained on the face of the documents is purelytechnical. There is 110 requirement in section 9 of the Act that the custodian should benamed in the order itself
The words "where the Minister has reason to believe or suspect" in section 9 (1) ofthe Act, mean that there must be objective grounds and a rational basis for belief orsuspicion.
The ouster clause in section 10 of the Act when read with the proviso to section 22of the Interpretation (Amendment) Act, No. 18 of 1972, does not apply to the issue of amandate in the nature of a writ of Habeas Corpus.
A subsequent detention order can cure the defects of a prior detention order and asubsequent valid detention order which is in operation at the time of adjudication, canbe accepted as justifying the continued detention of the corpus.
"These provisions (Article 13(1) of the Constitution and section 23 (1) of the Code ofCriminal Procedure Act, No. 15 of 1979) are mandatory and any infraction of them isillegal and must be strongly condemned as a serious encroachment on the liberty of
the subject guaranteed under the Constitution The claim that the corpus was
severely assaulted appears to us to be exaggerated. However, the use of violence ofwhatever degree on a prisoner is illegal and is not only an offence under the Penal Code,it contravenes Article II of the Constitution."
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Cam referred to
Christie v. Leach insky. (19471 A.C.. 573.(1947J 1 AH E.R. 567.
Liversidge v. Anderson. (1942) A.C.. 206; (1941) 3 All E.R. 338.
Ridge v. Baldwin (1964) A.C.. 40 at 73. (1963) 2 AH E.R. 66; (1963) 2 W.L.R. 935.
Reg v. I.R.C., Ex. p. Rossminster, (1980) 2 W.L.R. 1.
R. v. Secretary of State for Home Affairs. Ex. p. O'Brien (1923) 2 K.B.D. 361.
Pad field v. Minister of Agriculture, Fisheries and food (1968) A.C.997; (1968)1 AH E.R. 694; (1968) 2 W.L.R. 924
Secretary of State for Education v. Tameside Metropolitan Borough Council.(1976) 3 W.L.R.. 641; (1977) A.C. 1014; (1976) 3 All E.R. 665.
Nakkuda AH v. Jayaratne. (1951) A.C.. 66; (1950) 51 N.L.R. 457.
In re Bracegirdle. (1937) 39 N.L.R. 193.
Regina v. Governor Pentonville, Ex. p. Azam, (1973) 2 W.L.R. 949.(1973)2 All E.R.741.
Ex parte Page. (1818) 1B and Aid. 568.
Athanassiadis v. Government of Greece, (1969) 3 All E.R. 293; (1969) 3 W.L.R.544.
R v. Governor of Brixton Prison, Ex parte Servini, (1914) 1 K.B. 77; 83 L.J.K.B.212; 109 L.T. 986;30 T.L.R. 35.
R v. Richards, (1844) 5 Q.B., 926.
Re Terraz. (1878) 39 L. T. 502, (1878) 4 Ex. D. 63; 48 L.J.Q.B. 214.
Ex parte Dauncey, (1843) 12 M & W271.
Naranjan Singh Nathavan v. State of Punjab, (1952) 39 A.I.R. 106.
Subudh Singh v. Province of Bihar, (1949) 36 A.i..R., Patna, 247.
Basanlachandra Ghose v. King Emperor, (1945) 46 Cr. L. J. 559.
Godavari S. Paruleker v. State of Maharashtra, (1966) 53 A.I.R. Supreme Court.1404.
APPLICATIONS for Writs of Habeas Corpus.
V. S. A. Pullenayagam. with Faiz Mustapha, S. C. Chandrahasan, Miss MangaiamKauapaiiitpillai and H. Ratnavel, lor the petitioner in H.C. No. 10/81.
H. L. tie Silva, with 5. Mahenthiran and Surendran T. Packiyanathan, for thepetitioner in H.C. No. 11/81.
Dr. Colvin R. de Silva, with L. A. T. Williams, S. Perimpanayagam and G. Kumaralingam,for the petitioner in H.C. No. 12/81.
S. J. Kadirgamar. Q.C., with K. Thevarajah, S. Navaratnam and H. Sirinivasam, for thepetitioner in H.C. No. 13/81.
Tilak Marapana, Deputy Solicitor General, with S. Ratnapala, State Counsel and K.Kumarasiri, State Counsel, for the State.
Cur. adv. vult.
September 10,1981.
COLIN-THOME, P.
The main challenge in each of these four applications for an orderin the nature of a writ of habeas corpus concerns:
the legality of the arrest of the corpus;
the averment in each of the applications that the corpuswas severely tortured; and
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the validity of the detention orders made by the Ministerof Internal Security.
The material before us consists of affidavits, counter-affidavitsand certified documents.
Habeas Corpus Application No. 12/81
On 13.4.1981 a mixed party of police and army officers arrived,at forenoon, at the house of S. Arunagirinathan, the corpus inapplication No. 12/81. They searched his premises without awarrant and gave no reason for the search. Nothing incriminatingwas found. No assault took place on this occasion. On 19.4.1981at 5 a.m. a mixed party of police and army officers arrived again athis house. They searched the premises without a warrant andnothing incriminating was found. They assaulted him, his wife and11 year old son before taking him away under arrest The affidavitsof S. Senthilnayagam, the brother of the corpus, and Santhirathevi,his wife, affirmed on 29.4.1981, -which slated the above facts donot aver that the reason for the arrest was not given. Theycomplained to Mr, V. Yogeswaran, M.P. for jaffna, about thearrest of the corpus two days later, on 21.4.1981. In Yogeswaran'saffidavit there is no averment that he was informed that thecorpus, his wife and son were assaulted or that the reason for hisarrest was not disclosed. The next of kin, according to Yogeswaran,were anxious to ascertain, very understandably, where the corpuswas detained.
The corpus in his affidavit, affirmed on 28.7.1981, stated thathe was not told the reason for his arrest. He stated that he wastaken to the Army Camp at Elephant Pass after his arrest anddetained there for two weeks. He was interrogated several timesand tortured. His testicles were tied with a string and tugged. Hewas severely hit on his knuckles, buttocks and knees with a thickwooden rod. He was forced to sign a statement to escape beingtortured further.
Since 4.5.1981 he was detained at the Army Camp, Panagoda.He was informed that he was detained on the orders of theMinister only on 9.7.1981.
On 21.7.1981 he was taken before a Magistrate blindfolded.He made a statement to the Magistrate in the presence of an
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Assistant Superintendent of Police and another officer of theCriminal Investigation Department, but he did not tell theMagistrate— "some of the incriminating false aspects" he wasasked to state by his investigators. On the following day, as areprisal, he was handcuffed by both wrists to high railings on adoor and window and was forced to stand erect with armsoutstretched. He was kept in this position for long periods exceptfor short spells of 4 to 5 hours each night to enable him to sleep,to have his meals and to attend to his ablutions.
On 23.7.1981 he was forced to roll on the floor for a long timeuntil his body ached. Thereafter, he was forced together withanother prisoner to hold each other's ears and repeatedly squatand stand up for a long time until he could barely stand.
On 27.7.1981 he was taken handcuffed to meet his lawyer.After the interview he was manacled in a standing position untilbedtime.
On 28.5.1981 he was examined by a doctor. He denied that hewas a member of an organization whose aim was to establish aseparate State of Tamil Eelam by means of armed struggle,violence and terrorism. He denied that he assisted in the conceal-ment or disposal of the money that was robbed on 25.3.1981 orthat he was connected or concerned in any way with any crimeor unlawful activity.
M. N. Juranpathy, Assistant Superintendent of Police, in hisaffidavit, dated 16.6.1981, stated that the search on 13.4.1981was made under the provisions of section 6 of the Prevention ofTerrorism (Temporary Provisions) Act, No. 48 of 1979. On
he arrested the corpus under the same provisions.M. D. A. Rajapakse, Director of Criminal Investigations, and aSuperintendent of Police, had on 15.4.1981 in writing authorisedhim to investigate terrorist activities and to take all necessaryaction specified under section 6. This authority was producedmarked P15.
He stated that the corpus was a member of an organizationwhose declared aim was to establish a separate State called Eel3mby means of armed struggle, violence and terrorism. Investigationsrevealed that the corpus had assisted in the concealment and
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disposal of part of the Rs. 8.1 million robbed at Neervely on
25.3.1981.
Juranpathy denied that the corpus was assaulted, illtreated,tortured or harassed while he was detained at Elephant Pass. Whenhe arrested the corpus on 19.4.1981 he informed the corpus of thereason for his arrest.
Captain W. M. S. Dharmaratne, officer-in-charge of the corpusat Elephant Pass from 17.4.1981 to 6.6.1981, denied that he wassubjected to cruel, inhuman and degrading treatment. He alsostated that the same diet that was given to the soldiers was givento the corpus and other detenus. They were permitted to takeexercise and were provided with pipe-borne water, soap, toothpaste, 10 cigarettes per day and materials for correspondence withtheir families. They were never handcuffed inside the detentioncamp.
Second Lt. S. Dharmaratne, officef- in-charge of the detenus atthe Army Camp, Panagoda, denied the allegations of torture,cruelty and inhuman treatment averred by the corpus. Whiledetained at the Army Camp, Panagoda, the diet given to thedetenus was identical to the diet provided for the soldiers both inquantity and quality. This was personally supervised by him. Theywere also provided the same facilities they had at Elephant Pass.He was aware that they regularly corresponded with their families.
Dr. M. S. L. Salgado, Judicial Medical Officer, Colombo South,examined the corpus on 28.5.1981 at his office in Colombo. Ashe did not know Tamil his conversation with the corpus wastranslated by Dr. K. Ratnavadivel, Deputy Judicial MedicalOfficer, Colombo South. He asked the corpus whether he had anycomplaints to make and was told that he had a swelling of thescrotum of 10 days duration for which he had been treated by theArmy doctor. He stated that while he was at the Elephant PassCamp, where he had been taken on 19.4.1981, he was assaulted onhis buttocks, but since 24.4.1981 no violence had been inflictedon him He stated that he had been asked to hang on rails and thathe had fainted once. His main complaint was that he was notreceiving a sufficient quantity of rice for his meals.
The doctor examined the corpus and found that he had aswelling on the right side of his scrotum. This was due to hydrocele.
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The corpus told him that the hydrocele was due to natural diseaseand not due to any traumatic event. He had it for a considerabletime and during the last ten days there was an increase in size.There was no pain and it did not warrant any immediate surgicaltreatment.
There was an old contusion 2"x1/4"x1/3" on each side of thebuttocks. There was no pain or tenderness over these sites. Thearea of contusion on the buttocks was consistent with his historyof having been beaten on the buttocks with a blunt weapon likea baton. This injury was non-grievous. Apart from the scrotalswelling the corpus was in a satisfactory state of health.
Under section 6(1) of Act No. 48 of 1979:
"Any police officer not below the rank of Superintendentor any other police officer not below the rank of Sub-Inspectorauthorized in writing by him in that behalf may, without awarrant and with or without assistance and notwithstandinganything in any other law to the contrary-
fa) arrest any person;
(6) enter and search any premises;
stop and search any individual or any vehicle, vessel,train or aircraft; and
(oO seize any document or thing,
connected with or concerned in or reasonably suspected ofbeing connected with or concerned in any unlawful activity."
As Juranpathy was authorised in writing by M. D. A. Rajapakse,Superintendent of Police, to investigate terrorist activities and totake all necessary actions under section 6 he had the power tosearch the premises of the corpus and to arrest him without awarrant if he reasonably suspected the corpus of being connectedwith or concerned in any unlawful activities. Juranpathy stated inhis affidavits the reasons for his suspicion.
The corpus in his affidavit has stated that he was not told thereason for his arrest. On the other hand, Juranpathy in hisaffidavit has stated that at the time of the arrest he informed thecorpus of the reason for his arrest.
Senthiinayagam v. Seneviratne (Colin Thome, P.)
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Under Article 13(1) of the Constitution of the DemocraticSocialist Republic of Sri Lanka—
"No person shall be arrested except according to procedureestablished by law. Any person arrested shall be informed of thereason for his arrest"
Under section 23 (1) of the Code of Criminal Procedure Act,No. 15 of 1979, a person making an arrest—"shall inform theperson to be arrested of the nature of the charge or allegationupon which he is arrested."
Lord Simonds has succinctly stated the basis for this importantlegai requirement in Christie v. Leach insky (1) at 592:
'Arrested with or without a warrant the subject is entitledto know why he is deprived of his freedom, if only in order thathe may, without a moment's delay, take such steps as willenable him to regain it."
These provisions are mandatory and any infraction of them isillegal and must be strongly condemned as a seriousencroachment on the liberty of the subject guaranteed underthe Constitution. However, on the material placed before thisCourt by way of affidavit and counter-affidavit it is not possible tostate affirmatively that these provisions had not been observed bythe police on 19.4.1981.
With regard to the allegations of torture, we have perused thereports of the Judicial Medical Officers Dr. Salgado andDr. Ratnavadivel. The authenticity of these reports and theintegrity of Dr. Salgado and Dr. Ratnavadivel have not beenchallenged. Dr. Salgado examined the corpus on 28.5.1981.The corpus told him that he had been asked to hang on rails untilhe fainted prior to 28.5.1981, presumably at Elephant Pass, but inhis affidavit the corpus averred that this torture took place at theArmy Camp, Panagoda, from the 22nd July, 1981, the day afterhe was taken before a Magistrate. Another blemish in the affidavitof the corpus is that he claimed that he was tortured by a stringbeing tied to his testicles and tugged. However, he had made nosuch complaint to Dr. Salgado and had told the doctor that hishydrocele was due to natural disease and not due to any traumaticevent. He was the only detenu to claim he was tortured in thismanner. We reject these averments in the affidavit of the corpus.
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However, the corpus had two non-grievous contusions on hisbuttocks and there is no doubt that these indicated that he hadbeen beaten by a blunt weapon.
The corpus in his second affidavit, dated 30.7.1981, allegedthat after he was taken from the Court back to the camp atPanagoda, on the previous day, he was intimidated by an armyofficer, who pulled him by his verty and threatened to assult himseverely for disclosing to Court that he was tortured. The followingmorning at Army Headquarters he was threatened by some Armyofficers, who told him that 1,000 soldiers were being sent toJaffna and that their relatives would suffer dire consequences.The corpus stated that he was threatened in Sinhala, a language hedid not claim to understand. We also note that the other threedetenus who were in custody with Arunagirinathan did not swearaffidavits supporting him. We attach little weight to his allegation.
Habsas Corpus Application No. 10/81:
K.T.Chelliah,thefather of corpus Cheiliah Kulasegararajasinghamin Application No. 10/81, filed petition and affidavit stating thaton 6.4.1981, D, I. P. Baranage, inspector of Police, with otherpolice officers, came to his house at 10.30 a.m., and arrested thecorpus without a warrant stating that he was wanted fornuHsituniny by P. Mahendran, Deputy Inspector-Generai of Police,Northern Range, Jaffna. There was no allegation of assault on thecorpus. The corpus had earlier been arrested on 11,10,1980 onan allegation that he had committed mischief by fire or explosiveon an Avro Aircraft. He was later acquitted of this charge at atrial in the High Court.
P. Mahendran, in his affidavit, dated 12.5.1981, stated that on
the corpus was arrested on his orders and brought tothe Jaffna Range Police for interrogation. He informed the corpusthat he would be taken to Colombo for questioning in connectionwith unlawful activity within the meaning of section 31 of ActNo. 48 of 1979. The corpus was detained at the Army Camp,Panagoda, under a detention order made by the Minister ofInternal Security. He denied that the corpus was subjected totorture.
On 27.3.1981, the house of the petitioner was searched on asuspicion that money belonging to the People's Bank robbed at
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Neervely on 25.3.1981 was concealed in or around the petitioner'shouse. He averred that the petitioner was a member of anorganization whose declared aim was to establish a separate Stateof Tamil Eelam by means of armed struggle, violence andterrorism.
On 5.4.1981 three persons were apprehended at Point Pedrowhen attempting to leave the country by boat. They had in theirpossession a portion of the money robbed at Neervely. Two ofthese persons were seen in the vicinity of the house of the corpusand during the same night the corpus was visited by a numberof other members of the said organization, whose members wereknown to have planned or participated in the robbery at Neervely.The investigations gave rise to a strong suspicion that the corpushad abetted or conspired in the commission of the robbery.
The corpus in his affidavit, dated 28.7.1981, admitted that on
when he was arrested he was told that he was wantedfor questioning by Mahendran and on the same day he was takento the Army Camp, Panagoda. He has not contradicted Mahendran'saverment that he was informed that he would betaken to Colombofor questioning in connection with unlawful activity within themeaning of section 31 of Act No. 48 of 1979.
From Panauoda he was taken to the Elephant Pass Army Campon 17.4.1981, and was detained there by police and army officersuntil 6.5.1981. At Elephant Pass they assaulted him on his heelsand buttocks with batons and rods and with fists on his chest,stomach, back and face and he was not given food or water forlong spells.
On 6.5.1981 he was brought to Colombo and kept in the Armyhospital for two days. On 7.5.1981 he was examined by Dr.Ratnavadivel. He was threatened by an Army Officer not to revealto the doctor that he was assaulted by Army Officers but he toldthe doctor where he had pain and where he was assaulted. On
he was taken back to the Elephant Pass Army Campand was severely assaulted for revealing to the doctor that hewas assaulted.
The police officers recorded a statement from him and for dayshe was assaulted. He was brought back to the Panagoda ArmyCamp on 21.5.1981.
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Juranpathy, A.S.P., Senior Police Officer at the ElephantPass Camp, in his affidavit, dated 12.8.1981, denied that thecorpus was assaulted or tortured at the Elephant Pass Camp.
Dr. K. Ratnavadivel, in his report, stated that he examined thecorpus on 7.5.1981 at the Military Hospital, Colombo, in thepresence of Major C L. Algama. The corpus appeared to be in agood state of nutrition but he showed some degree of anxiety inanswering questions about ill treatment. He complained of pain inthe right elbow, left knee region and left side of the chest. Acontusion %" in diameter was present on the right chest below theelbow. He did not tell the doctor that he had pain on hisheels and buttocks. The doctor ended his report with theeuphemism—"there is no evidence of any unreasonable harshforce being used to amount to torture."
There is, no doubt, however, that violence had been used onhim at the Elephant Pass Camp and we reject the.denials of hiscustodians that he was not assaulted.
Habeas Corpus Application No. 11/81:
Jayamalar Murugaiah, wife of the corpus S. Murugaiah, inapplication No. 11/81, filed petition and affidavit on 30.4.1981.She stated that on 28.4.1981, at 5.45 a.m. a mixed party ofpolice and army personnel arrived at her house and searched itwithout a warrant and they also assaulted her husband severelywith sticks. Thereafter, they assaulted her and her 11 year olddaughter. They arrested her husband without informing him of thereason for his arrest.
R.C. N. Gunasinghe, A, S. P., in his affidavit, dated 16.6.1981,stated that the house of the corpus was searched on 28.4.1981 andthe corpus was arrested under the provisions of section 6. Thecorpus was informed of the reason for his arrest. The corpus was amember of an organization, the declared aim of which was toestablish a separate State of Tamil Eelam by means of armedstruggle, violence and terrorism. There was material that thecorpus harboured and concealed N. Thangavel alias Thangathuraiknowing that he had committed an offence under Act No. 48 of1979 and had also failed to report to a police officer that he hadcommitted such an offence. There was material that the corpushad been concerned in collecting explosives without lawful
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authority. Gunasinghe was authorised in- writing on 24.4.1981 byM. D. A. Rajapakse under section 6 to search the premises and toarrest the corpus. The authority was produced marked P16.
The corpus in his affidavit, dated 30.7.1981, stated that the
I.D. officers and army personnel had no arrest or search warrantand that no reasons were given for his arrest. He was taken to theArmy Camp at Elephant Pass where he was detained till 5.5.1981.
At Elephant Pass he was questioned several times and torturedby being beaten by thick rods on the soles of his feet and buttocks,which caused him unbearable pain. He was also assaulted on hisshoulders and stomach. He denied harbouring any criminaloffenders and denied collecting explosives. He denied being amember of any organization whose aim was to establish a separateState by means of armed struggle, violence or terrorism. He wasforced to sign a statement in order to escape further torture.
On 5.5.1981 he was moved to the Army Camp at Panagoda. Hewas not informed of the reason for his detention. He stated thathe was not given proper meals and could not have regular baths.He was not given a change of clothes for a long time. He was notgiven any reading material and had not been able to have a shaveup to date.
On 28.5.1981 he was examined by a doctor. On 27.7.1981 hewas taken handcuffed to be interviewed by his lawyers. Thisallegation was denied by 2nd Lt. Sunil Dharmaratne who was incharge of the corpus at the Army Camp, Panagoda.
Juranpathy, A,S.P., in his affidavit, dated 12.8.1981, deniedthat the corpus was assaulted at his house on 28.4.1981. He wasinformed of the reason for his arrest. He was not illtreated andtortured at the Elephant Pass Camp.
According to Dr. Salgado, who examined the corpus on
at the office of the J.M.O., Colombo, assisted byDr. Ratnavadivel, the corpus complained that on 28.4.1981 hewas assaulted with a stick on his arms and legs. He was notseriously injured. Since then no physical violence was inflictedupon him. He complained of a back ache on and off and a swellingon the left side of the lower abdomen. He had these ailments priorto his detention. The corpus was quite calm and collected. On the
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right inguinal region there was an old scar of a surgical woundindicating an operation for hernia. On the left side there was asmall inguinal hernia. There were no injuries or places oftenderness on his body. There were no scars or healed wounds onhis arms and legs. There was no evidence of any physical violenceupon his person —recent or past.
On the material averred in the affidavits we hold that the arrestand search of the premises without a warrant were carried outunder the provisions of section 6 of Act No. 48 of 1979. We arenot in a position to decide whether the reason for the arrest wasgiven or withheld.
With regard to allegations of torture and assault the corpus toldDr. Salgado that he was assaulted with sticks only on 28.4.1981and not thereafter. He did not tell Dr. Salgado that he was severelyassaulted at Elephant Pass.
Habeas Corpus Application No. 13/81:
S.Vallipuram, father of the corpus, B. Sivaselvam, in applicationNo. 13/81, filed petition and affidavit on 30.4.1981 stating thaton 13.4.1981, at 1.30 p.m. police and army officers came to hishouse and inquired for Arulcbelvam. On being informed that therewas no such person in the house they left. No allegation of assaultwas made.
On 19.4.1981, at about 6.15 a.m. another mixed party of policeand army officers came to his house and searched the premises.Nothing incriminating was found. However, they took the corpusinto custody. A group of officers surrounded him and mercilesslyassaulted him. No reason was given for his arrest. Nor were theytold where they were taking him.
Juranpathy, A.S.P., in his affidavit, dated 16.6.1981, statedthat on 13.4.1981, the petitioner was questioned regarding thewhereabouts of his son Arumaichandran. The petitioner deniedthat such a person lived in his house. On 19.4.1981 the petitioner'shouse and premises were searched on information received thatpart of the money belonging to the People's Bank, Jaffna, robbedon 25.3.1981 was concealed on the premises. He stated that whenthe corpus was taken into custody the petitioner and the corpuswere both informed that the corpus was arrested under theprovisions of section 6 of Act No. 48 of 1979. According to police
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investigations the corpus was a member of an organization whosedeclared aim was to establish a separate State of Tamil Eelam bymeans of armed struggle, violence and terrorism. There wasmaterial to indicate that the corpus had assisted in the concealmentof part of the money robbed on 25.3.1981. Yi/hen making thearrest on 19.4.1981 he had written authority to do so given to himby M. D. A. Rajapakse, S.P. The authority dated 15.4.1981 wasproduced marked P15.
Juranpathy in his affidavit, dated 4,8.1981, stated that therewas material which disclosed that the corpus was a very closeassociate of Sri Sabaratnam a person whose finger prints werefound at the scene of the robbery. Several other suspects in theirconfessions revealed that the corpus has assisted in the concealmentand disposal of money stolen in the bank robbery. The corpus hadalso confessed that he assisted Sabaratnam in the concealment anddisposal of money taken during the robbery. He denied that thecorpus was assaulted, tortured or harassed while at Elephant Pass.
The corpus in his affidavit, dated 31.7.1981, stated that noreason was given for his arrest on 19.4.1981 and that there was nowarrant for his arrest. He stated that he was severely assaulted bythe C.I.D. officers before he was taken away. He was taken to theArmy Camp at Elephant Pass and kept there for about two weeks.During this period he was severely assaulted. No regular meals ofany quality or quantity or water were given to him and he waskept more or less at the point of starvation. He was forced tomake a statement to avoid further assault.
Later he was taken to the Panagoda Army Camp and kept theretill the hearing of this application. On 28.5.1981 he was producedbefore the J.M.O., in the presence of an army and a police officer.He denied that he was a member of an organisation whose aim wasto establish a separate State by armed struggle, violence andterrorism. He denied that he assisted in the concealment anddisposal of the money robbed at Neervely on 25.3.1981.
On 28.5.1981 the corpus was examined by Dr. Salgado at theoffice of the J.M.O., Colombo, assisted by Dr. Ratnavadivel. Theofficers responsible for his custody were within sight but out ofhearing.
The corpus told the doctor that on 19.4.1981 he had beenassaulted on trie chest, but that since then he had not been
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assaulted except on one occasion on 3.5.1981 when someoneassaulted him with hands. Dr. Salgado examined him and althoughthe corpus appeared apprehensive and anxious there was no injuryon his chest. The pain and tenderness on his abdomen wereprobably the result of a colic, and not related to any violencewhich the corpus himself said did not take place.
On the material available it is not possible to state whether ornot the reason for the arrest of the corpus was disclosed to him atthe time of arrest. The reasons for a search and arrest by a mixedgroup of police and army personnel in the present situation in thenorth must be so obvious that the person arrested, from thecircumstances of his arrest, may know the general nature of theoffence for which he is detained. This, of course, does not absolvea police officer from informing any person arrested the reason forhis arrest. The person arrested, however, cannot complain if hehimself produces a situation which makes it practically impossibleto inform him, e.g., by immediate counter-attack or runningaway. Even so it is the duty of the police officer to give the reasonfor arrest at the first reasonable opportunity. The failure toobserve this strict procedure will make a police officer liableto be convicted under the Penal Code for assault and wrongfulconfinement.
The claim that the corpus was severely assaulted appears to usto be exaggerated. However, the use of violence of whateverdegree on a prisoner is illegal and is not only an offence under thePenal Code, it contravenes Article II of the Constitution: "Noperson shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment."
S. Arunagirinathan (corpus in Habeas Corpus ApplicationNo. 12/81) was arrested on 19,4.1981 and taken to the ArmyCamp at Elephant Pass on 20.4.1981. The Minister of InternalSecurity made the following detention order (X1):
"PREVENTION OF TERRORISM (TEMPORARY PROVISIONS)ACT No. 48 OF 1979
Order under section 9 (1)
By virtue of the powers vested in me by section 9 (1) of the
Prevention of Terrorism (Temporary Provisions), Act No. 48
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of 1979, I, Tikiri Banda Werapitiya, Minister of Internal Security,having reason to suspect that Si vasu bra man iam Arunagirinathanof Kokuvil is connected with or concerned in Terrorist activity,do hereby order that the abovenamed SivasubramaniamArunagirinathan be detained at the Army Camp, Panagoda, fora period of three months from the date of this Order subject tothe conditions set out in the schedule hereto.
Sgd. T. B. Werapitiya,Minister of Internal Security.
Colombo, 20th April, 1981."
In the schedule attached to this order in paragraph 2 it wasstipulated that:
"The suspect may for the purposes of investigation orinterrogation be taken from the place of detention by anyperson authorized by me to such place or places and for suchperiods as are approved by me."
'X1' stated that the place of detention was the Army Camp,Panagoda, for a period of three months from the date of the order.On 30.4.1981 the Minister sent a letter to the Army Commanderstating that, in confirmation of the verbal instructions alreadygiven, the suspects S. Arunagirinathan, Vailipuram Sivaselvam andChelliah Kulasekerarajasingham "be moved to Elephant Pass andheld in Army custody at the Elephant Pass Rest House” (P17).So that although X1, dated 20.4.1981, stipulated that the placeof detention was the Army Camp, Panagoda, on that very day hewas moved to Elephant Pass. The written authority authorizingthis move appeared very belatedly on 30.4.1981. This letter didnot state for how long the suspects were to be detained atElephant Pass and when they were to be moved to Panagoda.
This detention order X1 was made on the basis that the Ministerhad "reason to suspect" that S. Arunagirinathan was "connectedwith or concerned in terrorist activity." In the case of the otherthree corpora detention orders, also marked X1, were made by theMinister in identical language stating that he had "reason tosuspect" that the corpus was "connected with or concerned interrorist activity."
Detention orders dated 20.4.1981 were served by O. Wimaladasa,Sub-Inspector of Police, on S. Arunagirinathan and V. Sivaselvam
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on 22.4.1981 at the Army Camp, Elephant Pass (P19).
B. S. Amunugama, Inspector of Police, served the detentionorder (P20) dated 6.4.1981 on C. Kulasekerarajasingham at theArmy Camp, Panagoda on the same date. By an error the namewas stated as "Rajasekeram", but this was subsequently rectifiedto Rajasingham.
The detention order dated 30.4.1981 (P21) was served byInspector Wimaladasa on S. Murugaiah at the Army Camp,Elephant Pass, on 1.5.1981.
Arunagirinathan was the only corpus to aver in his affidavit thathe was served with a detention order belatedly on 9.7.1981.Earlier he had instructed his counsel that he was not aware of theMinister's detention order until he was brought to Court on
27.7.1981.
The Minister of Internal Security later made fresh detention orders.These were marked X2. In the case of C. Kulasegararajasingham,X2 was made on 14.5.1981; in the cases of S. Arunagirinathan and
Sivasetvam, the detention orders X2 were made on 26.5.1981.X2, unlike XI, referred to “unlawful activity" and specifically tooffences under the Act. In the cases of S. Arunagirinathan,C. Kulasegararajasingham and V. Sivasetvam the relevant part ofX2 stated that:
“The Minister of Internal Security having reason to suspectthat (Name of suspect) is connected with or concerned in anunlawful activity, to wit: the abetment and conspiracy of therobbery of property of the People's Bank, Neervely on 25thMarch. 1981."
In the case of S. Murugaiah X2 stated that he was beingdetained as:
"The Minister of Internal Security having reason to suspectthat S. Murugaiah is connected with or concerned in unlawfulactivity, to wit: harbouring and concealing Nadarajah Thangevelalias Thangathurai knowing that he had committed an offenceunder the Prevention of Terrorism (Temporary Provisions) Act,No. 48 of 1979; failing to report to a Police officer that suchperson has committed such offence and collecting explosiveswithout lawful authority."
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All the suspects were ordered to be detained at the Army Camp,Panagoda. In the case of Arunagirinathan and V. Sivaselvam X2was to be operative till 29.7.1981. In the case of MurugaiahX2 was to be operative till 29.7.1981. In the case of ChelliahKulasegararajasingham X2 was to be operative for three monthsfrom the date of the order which was 14.5.1981.
The main submission of learned counsel for the petitioners wasthat the detention orders X1 and X2 were not valid operativeorders made under section 9 and therefore, the corpora wereillegally detained ab initio. It was submitted that the reasons forthe detention order stated in both the orders X1 and X2 were notcovered by the definition of "unlawful activity” in section 31 ofAct No. 48 of 1979.
Section 31 of the Act defines "unlawful activity" as follows:"31 (1) In this Act, unless the context otherwise requires—
"unlawful activity" means any action taken or actcommitted by any means whatsoever, whether within oroutside Sri Lanka, and whether such action was taken or actwas committed before or after the date of coming intooperation of all or any of the provisions of this Act inconnection with the commission of any offence under thisAct or any act committed prior to the date of passing of thisAct, which act would, if committed after such date, constitutean offence under this Act."
Learned counsel submitted that the words- "unlawful activity"merely extended to —"any action taken or act committed" whichper se was not an offence under the Act and was only on theoutskirts of criminal liability, although connected with thecommission of any offence under the Act.
It is now settled law that the totality of an Act, from the titleto the interpretation clause, may be referred to for the purposeof ascertaining its general scope, and of throwing light upon itsconstruction. Consideration of the "mischief" or object of theenactment is common, and will often provide the solution to aproblem of interpretation. "It is said to be the duty of the Judgeto make such construction of a statute as shall suppress themischief and advance trie remedy. To this end, a certain extensionof the letter is not unknown, even in criminal statutes": Maxwellon "The Interpretation of Statutes", 12th Edn., 96.
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What is the mischief aimed at by this Act? Everybody knowsthat this Act is intended to rid this country of terrorism in all itsrecent, sophisticated manifestations. To achieve this end theLegislature has invested extreme powers in the Courts, theexecutive and the police, which they do not have in normal times,in the interests of national security and public safety. Consciousthat these powers are of an extreme nature the Legislature haslaid down that this Act, certified on 20th July, 1979, "shall bein operation for a period of three years from the date of itscommencement" (Section 29). The Minister by virtue of hispowers under section 1 appointed July 24, 1979, as the date onwhich all the provisions of the Act, other than section 30, cameinto operation: See Gazette Extraordinary No. 46/7-24.7.1979.
Section 6 deals with the powers conferred on a Superintendentof Police or an authorized police officer, of entry, search andarrest of any person, without a warrant, "connected with orconcerned in or reasonably suspected of being connected with orconcerned in any unlawful activity."
Section 7(1) reads:
"Any person arrested under subsection (1) of section 6 maybe kept in custody for a period not exceeding seventy-twohours and shall, unless a detention order under section 9 hasbeen made in respect of such person, be produced before aMagistrate before the expiry of such period and the Magistrateshall, on an application made in writing in that behalf by apolice officer not below the rank of Superintendent, makeorder that such person be remanded until the conclusion of thetrial of such person."
Section 9 (1) reads:
"Where the Minister has reason to believe or suspect that anyperson is connected with or concerned in any unlawful activity,the Minister may order that such person be detained for aperiod not exceeding three months in the first instance, in suchplace and subject to such conditions as may be determined bythe Minister, and any such order may be extended from time totime for a period not exceeding three months at a time:
Provided, however, that the aggregate period of such detentionshall not exceed a period of einhteen months."
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Sections 6, 7 and 9 deal with any arrested person who is"connected with or concerned in or reasonably suspected of beingconnected with or concerned in any unlawful activity." After aperson is arrested under section 6 there are two alternatives opento a police officer. Firstly, within a period of 72 hours he mayproduce a suspect before a Magistrate and have him remandeduntil the conclusion of his trial. A police officer will adopt thisprocedure only when there is prima facie evidence to support acharge under section 2 or 3 or 5. The other alternative is thatwhen a police officer has a reasonable suspicion that a person isconnected with or concerned in any unlawful activity and the 72hours period is inadequate for concluding his investigations hemay move for a detention order from the Minister under section 9.
The words—"has reason to believe or suspect" in section 9 alsoenvisage two categories of suspects:
Where the Minister has reason to believe that, any person isconnected with or concerned in any unlawful activity; and
Where the Minister has reason to suspect that any person isconnected with or concerned in any unlawful activity.
The primary purpose of detention under section 9 is tofacilitate further investigation and interrogation of both categoriesof persons and their confederates in order to achieve the objectof eradicating terrorism. Section 9 is not intended merely as anegative form of preventive detention nor is it intended to be apunishment. "Unlawful activity," as defined in section 31, extendsto persons not only on the periphery of criminal liability, but italso encompasses any person whose acts "by any meanswhatsoever" are connected with "the commission of any offenceunder this Act," and that, we hold, includes a person who hascommitted an offence under Act No. 48 of 1979.
The detention orders X1 stated that the grounds for detentionwere "terrorist activity". The words "terrorist activity" are notonly lacking in particularity they do not fall under the definitionof "unlawful activity" in section 31 of the Act. We hold, therefore,that the detention orders X1 were invalid ab initio.
As we have held that "unlawful activity" includes an offenceunder the Act No. 48 of 1979, the specifying of an offence underthe Act, as has been done in the detention orders X2, as the basis
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for detention, does not invalidate the detention order. Therefore,we hold that the four detention orders X2 are valid ex facie.
The objection that the detention c*. ,<?rs XI and X2 weredefective as they did not name the custou'.'^n of the persondetained on the face of the documents is purely tec,1’*1'03*- Section9 stipulates that the Minister may order the detenti«?n anYperson "in such place" determined by the Minister. Then? 's norequirement in section 9 that the custodian should be named ,2nthe order itself. This may be done by a covering lettei to thecustodian of the detenu. Although the learned Deputy SolicitorGeneral stated that covering letters from the Minister to the ArmyCommander, connected with the detention orders, were availableand would be produced, we were later informed that they couldnot be traced. However, the detention orders X1 and X2 specifiedthat the place Of detention was' the "Army Camp, Panagoda."Letters from the Minister to the Army Commander authorizingthe fnoving of the suSpects from the Army Camp, Panagoda, to theArmy Camp, Elephant Pass, were also produced. There is nodoubt, therefore, about the identity of the custodian of thedetenus named in the detention orders.
Learned counsel for the petitioners submitted that th“particulars in the affidavits of the officers vvh« fiested thecorpora cannot be the basis for reasonaore relief or suspicion bythe Minister when making the detention orders. Learned counselsubmitted that under section 9(1) "where the Minister has reasonto believe or suspect" means that there must be objective groundsand a rational basis for belief or suspicion. Learned counsel alsosubmitted that the Court ought to examine the material on whichthe Minister based his order to ascertain whether the Minister hadmisconstrued his powers.
The learned Deputy Solicitor General agreed wiin theseSubmissions and stated that he had no objection to the examinationof the material considered by the Minister when making thedetention orders. The ouster clause in sectionlO when read withthe proviso to section 22 of the Interpretation (Amendment) Act,No. 18 of 1972, dbes not apply to the issue of a mandate in thenature of a writ of habeas corpus.
In LiVenidge v. Anderson (2), where the Secretary of State,acting in good faith made an order under Regulation iSU of the
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Defence (General) Regulations, 1939, in which he recited that hehad reasonable cause to believe a person to be of hostile associationsand that by reason thereof it was necessary to exercise controlover him and directed that that person be detained, the majorityof the House of Lords held that a Court of Law cannot inquirewhether in fact the Secretary of State had reasonable grounds forhis belief. The matter was one in the executive discretion of theSecretary of State. The production by the Secretary of State ofan order of detention made by him and ex f$cie regular and dulyauthenticated, constituted a defence to an action for damages forfalse imprisonment unless the plaintiff discharged the burden ofestablishing that the order was invalid.
Lord Atkin in his celebrated dissent observed that thewords—"if the Secretary of State has reasonable cause” did notmean "if the Secretary of State thinks that he has reasonablecause." It was never the intention of Parliament to invest such anabsolute power in the executive. The plain and natural meaning ofthe words "has reasonable cause" imports the existence of a factor state of facts and not the mere belief by the person challengedthat the fact or state of fact existed. The words—"reasonablecause" have always been treated as an objective fact to be provedby one or other party and to be determined by the appropriatetribunal.
Lord Atkin observed:
"I view with apprehension the attitude of Judges who on amere question of construction when face to face with claimsinvolving the liberty of the subject show themselves moreexecutive minded than the executive."
He added:
"The Home Secretary has not been given an unconditional
authority to detain:,
the appellant's right to particulars, however, is based on muchbroader ground, a principle which again is one of the pillars ofliberty in that in English law every imprisonment is prima facieunlawful and that it is for a person directing imprisonment tojustify his act."
In recent years the majority decision in Liversidge v. Anderson(supra) has been avoided and the objective test advocated by Lord
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Atkin has received belated approval: See S. A. de Smith "JudicialReview of Administration" 253: "Wartime and immediatepost-war decisions ought not to be treated with reverence;" Wade,"Administrative Law" 88, says that the leading war time case
shows"how strongly, in exceptional
circumstances, the ordinary train of judicial reasoning may bedeflected.” In Ridge v. Baldwin (3) at 73, Lord Reid, stated: "Inmany regulations there was set out an alternative safeguard morepracticable in war time-the objective test that the officer musthave reasonable cause to believe whatever was the crucial matter.(I leave out of account the very peculiar decision of this House inLiversidge v. Anderson.)" and at page 78: "I would agree that inthis or other Defence Regulation cases the legislature hassubstituted an obligation not to act without reasonable groundsfor the ordinary obligation to afford to the person affected anopportunity to submit his defence."
In Regina v. /. R. C., Ex. p. Rossmirister (4) at 49, LordDiplock observed: "For my part I think the time has come toacknowledge openly that the majority of this House in Liversidgev. Anderson were expediently and, at that time, perhaps, excusably,wrong and the dissenting speech of Lord Atkin was right.”
It is accepted now that expressions like-"has reasonable causeto believe" impose an objective condition precedent of fact onwhich a person detained would be entitled to challenge thegrounds of the executive's honest belief. There is no unfetteredpower vested in the Minister and no unconditional authority todetain a person. The Courts have been jealous of any infringmentof personal liberty and care is not to be exercised less vigilantly,because the subject whose liberty is in question may not beparticularly meritorious: Rex v. Secretary of State for HomeAffairs, Ex. p. O'Brien (5) at 362 per Scrutton 1 .J., andPadfie/d v. Minister of Agriculture, Fisheries and Food (6) at1030.
This construction has been extended to words like-"If theSecretary of State is satisfied." In Secretary of State for Educationv. Tameside Metropolitan Borough Council (7) at 665, it was heldby the House of Lords that the words "if the Secretary of Stateis satisfied" did not confer an absolute discretion on him, and thataccordingly the Court should exercise its judgment as tn wuhnUiergrounds existed which were capable of supporting the Secretary
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of State's decision. The Court must inquire whether those factsexist and have been taken into account. In Regina v. /. R. C., Ex.p. Rossmipster (supra) at 37, Lord Wilberforce stated: "Parliament,by using such phrases as 'is satisfied', 'has reasonable cause tobelieve' must be taken to accept the restraints which courts inmany cases have held to be inherent in them." See also NakkudaAH v. Jayaratne (8) and In re Bracegirdle (9). The burden is onthe executive who detains to make a return justifying it: Regina v.Governor Pentonville, Ex. p. Azam (10) at 961.
In view of the statements made by learned counsel for thepetitioners and the learned Deputy Solicitor General regarding theperusal of the material we ordered that the material considered bythe Minister before making the detention orders X1 and X2 besubmitted for examination by Court. We have examined thismaterial and we hold that on this material the Minister could havemade a valid detention order under section 9 (1) of the Act.
A further question to be considered is whether a subsequentdetention order can cure the defects of a prior detention orderand also whether a subsequent valid detention order which was inoperation at the time of adjudication could be accepted asjustifying the continued detention of the corpus.
In Ex parte Page (11), it was held that after the issue of a writof habeas corpus and before the return of it, the Commissioners ofBankrupts may, if necessary, make a fresh warrant, stating morefully the cause of detaining the bankrupt in custody, and that suchwarrant may by words of reference incorporate the formal parts ofthe first warrant. Held also, that if both warrants are defective inform, the Court will, if a substantial cause of commitment appearsre commit the bankrupt ex officio.
In Athanassiadis v. Government of Greece (12) at 297, ViscountDilhorne quoted Bailache, J. with approval in R. v. Governor ofBrixton Prison, Ex. parte Servini (13) "that the writ ought notnecessarily to issue where the Court is satisfied that although theapplicant may not be quite regularly in custody, yet substantiallyon the merits he is detained in custody." See also R v. Richards(14), where it was held that a good warrant can rectify a defectivewarrant; Re Terraz (15); Ex parte Dauncey (16); andSharpe—"Law of MaDeas Corpus" 176: "The rule that it is onlythe present circumstances of the restraint which are relevant (i.e..
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at the time of adjudication) has meant that the Courts are alwaysprepared to allow for a substituted warrant which corrects a defectin the first committal. It will be permissible for there to be asubstituted warrant even if the writ is issued and served. Indeed,it has been held that it is possible to amend the return to the writor to supply a new and better cause for the detention as the Courtcommences hearing. It would seem that so long as the materialpreferred tends to show present justification, it will be acceptedby the Court at any stage of the proceedings."
The principle that a good warrant can rectify a defective onehas been accepted in India as well. In Naranjan Singh Nathavan v.State of Punjab (17) at 107, it was held that once it is concededthat in habeas corpus proceedings the Court is to have regard tothe legality or otherwise of the detention at the time of the returnand not with reference to date of the institution of the proceedings,it is difficult to hold, in the absence of proof of bad faith that thedetaining authority cannot supersede an earlier order of detentionchallenged as illegal and make a fresh order wherever possiblewhich is free from defects and duly complies with the requirementsof the law in that behalf.
In Sobodh Singh v. Province of Bihar (18) at 249, it washeld approving the decision in Basantachandra Ghouse v. KingEmperor (19) that if at any time before the Court directs therelease of the detenu, a valid order directing his detention isproduced the Court cannot direct his release, merely on theground that at some prior stage there was mu valid cause fordetention.
In Godavari S. Parulekerv. State of Maharashtra (20) at 1407,it was held that if the Government considers an order of detention,which is the subject matter of challenge, to be invalid, there isno reason why it should not pass a valid order.
We are in agreement with the dicta in the above cases, and holdthat in the instant applications the detention orders X2 rectify thedefects in the earlier detention orders X1 made by the Minister ofInternal Security.
The detention orders X4 and X5, both dated 17.7.1981, signedby the Acting Minister of Internal Security extending the periodof detention of S. Arunagirinathan and S. Sivaselvam for a period
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of three months, have been served on the detenus. The ActingMinister has submitted an affidavit that he considered the materialavailable in each case before signing the detention orders. On
the Minister signed the detention order X7 extendingthe period of detention of S. Murugiah, operative from 29.7.1981.We hold that these orders X4, X5 and X7 are also valid ordersmade under section 9. The detention order X2 in the case ofC. Kulasegararajasingham was in force at the time of adjudication.
For the reasons stated we refuse the four applications for anorder in the nature of a writ of habeas corpus.
We have considered, at the request of counsel for the petitioners,whether the four detenus in the applications under considerationshould be remanded in Fiscal's custody. We think, however, thatit is not in their interest in view of recent disturbances to incarceratethem with other prisoners. In their own interest we think thatthey should continue to be detained at the Army Camp, Panagoda.We direct, however, that their lawyers should have access to themat the Army Camp, Panagoda. We also direct that the JudicialMedical Officer of Colombo or a Deputy Judicial Medical Officershould examine each of these four detenus once a week at theoffice of the Judicial Medical Officer in Colombo.
RANASINGHE, J. -I agree.ATUKORALE, J.—I agree.
Applications refused.