013-SLLR-SLLR-1992-2-SHANTHI-CHANDRASEKERAM-v.-D.-B.-WIJETUNGA-AND-OTHERS.pdf
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Shanthi Chandrasekeram v. D. B. Wijetunga and Others
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SHANTHI CHANDRASEKERAMv.
D. B. WIJETUNGA AND OTHERS
SUPREME COURTFERNANDO. J.
KULATUNGA, J. ANDWADUGODAPITIYA, J.
S.C. 1/92. 2/92.3/924TH MAY. 1992.
Fundamental Rights – Reference to the Supreme Court by Court of Appeal on theground that was prima facie of infringement of Articles 11, 13(1) and 13(2) inthree habeas corpus applications – Jurisdiction of Supreme Court in matters ofinfringement of fundamental rights.
Article 126(1) confers sole and exclusive jurisdiction in respect of infringement offundamental rights; and Article 126(2) prescribes how that jurisdiction may beinvoked. Article 126(3) is not an extension of or exception to those provisions; if aperson who alleges that his fundamental rights have been violated fails to complywith them, he cannot smuggle that question into a writ application in which reliefis claimed on different facts and grounds, and thereby seek a decision from theSupreme Court. On the other hand, there could be transactions or situations inwhich, on virtually the same facts and grounds, a person appears entitled toclaim relief from the Court of Appeal through a writ application under Article 140or 141, and from this Court by a fundamental rights application under Article 126.Since those provisions do not permit the joinder of such claims, the aggrievedparty would have to institute two different proceedings, in two different courts, inrespect of virtually identical “causes of action” arising from the same transactionunless there is express provision permitting joinder. The prevention in suchcircumstances, of a multiplicity of suits (with their known concomitant) is theobject of Article 126(3).
The expression “such matter" in Article 126(3) does not refer to the question ofinfringement but to the entire application.
Article 126(4) empowers the Supreme Court, if it finds that there was noinfringement, to refer "the matter* back to the Court of Appeal. On the other hand,if the Supreme Court finds that, there has been an infringement, there is norequirement that the substantive writ application be sent back. The SupremeCourt may determine that as well. It may be that in an appropriate case Article126(4) may empower the Supreme Court to give a direction requiring the
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substantive application to be determined by the Court of Appeal, perhaps aftertaking evidence. However Article 126(4) presupposes that the Supreme Courtwould, .in general, determine the entire application. The “matter" thus means theapplication.
Since the word used in Article 126(3) is “matter" instead of “question", the Article126(3) manifests an intention to refer to something other than a “question” and inthe context this can only be the application itself.
The jurisdiction of the Supreme Court extends not only to the question ofinfringement, but to the entire application.
The alleged infringement of Article 11 could not have been the basis ofreferences under Article 126(3) firstly because there was only an assertion, andno prima facie evidence of such infringements, and secondly because there wasno averment or evidence that the infringement were by a party to the habeascorpus applications.
No valid reasons were given for the arrests and the arrests were in violation ofArticle 13(1).
While the Court will not lightly interfere with the subjective opinion, bona fideheld, of the competent authority, that is not to say that the Court will surrender itsjudgment to that of the Executive, for that would imperil the liberty of every citizen.Sufficient material must be placed before the Court to satisfy the Court that thedeprivation of liberty, not limited in point of time, was not arbitrary, capricious orunreasonable. The unexplained failure of the respondents to place any materialwhatsoever leads but to one conclusion, that there was no such material, andtherefore that the Detention Orders were unreasonable and void.
Cases referred to:
Hirdaramani v. Ratnave! 75 NLR 67
Wickremabandu v. Herath [1990] 2 Sri LR. 348.
Reference to the Supreme Court under Article 126(3) of the Constitution.
Faiz Mustapha, P.C. with Motilal Nehru, P.C.
Jayampathy Wickremaratne, R. Marzook and A. Vinayagamoorthy for petitionersin References 1/92 and 3/92.
D. W. Abeykoon, E. Thambiah, Nimal Punchihewa.
A. Vinayagamoorthy, S. G. Punchihewa, Miss C. Jayalath and S. Thevarajah forthe petitioner in Reference 2/92.
Hector Yapa, Deputy Solicitor-General for respondents.
Cur adv. vult.
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29th June, 1992
FERNANDO, J.
These three matters have been referred to this Court under Article126(5) of the Constitution. Article 126, having conferred on theSupreme Court “sole and exclusive jurisdiction to hear and determineany question relating to the infringement or imminent infringement byexecutive or administrative action, of any fundamental right”, goes onto provide:
“(13) Where in the course of hearing in the Court of Appealinto an application for orders in the nature of a writ of habeascorpus, certiorari, prohibition, procedendo, mandamus, or quowarranto, it appears to such Court that there is prima facieevidence of an infringement or imminent infringement of theprovisions of Chapter III or Chapter IV by a party to suchapplication, such Court shall forthwith refer such matter fordetermination by the Supreme Court."
“(14) The Supreme Court shall have power to grant suchrelief or make such directions as it may deem just and equitablein the circumstances in respect of any petition or referencereferred to in paragraphs (2) and (3) of this Article or refer thematter back to the Court of Appeal if in its opinion there is noinfringement of a fundamental right or language right.”
In the course of hearing habeas corpus applications filed by thethree Petitioners in August 1991, the Court of Appeal considered thatthere was prima facie evidence of the infringement of Articles 11,13(1) and 13(2), and made these References on 13.1.1992.
Preliminary Questions
Two preliminary questions arose in regard to the nature of thejurisdiction and powers of this Court upon a reference under Article126(3): firstly, whether upon such reference this Court was required todetermine the application, including the question of the infringementof fundamental rights, or only the latter question; and secondly,whether a reference was permissible only in respect of aninfringement having a close connection with the facts and grounds
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which gave rise to the principal application (the habeas corpusapplication in this instance), or even in respect of an infringementhaving no such nexus.
If Article 126(3) is considered in isolation, “such matter” maybe understood to refer either to the writ application, or to thequestion of infringement (of which there was prima facie evidence).However, for several reasons, I am of the view that this expressiondoes not refer to the question of infringement, but to the entireapplication.
Article 126(4) empowers this Court, if it finds that there was noinfringement, to. refer “the matter” back to the Court of Appeal. Thusif the question whether there was an infringement is answered in thenegative, the matter must be sent back to the Court of Appeal;obviously, that matter cannot be the question of infringement, whichhas already been decided, but that which yet remains to bedetermined, namely the application. On the other hand, if this Courtfinds that there has been an infringement, there is no requirementthat the substantive writ application be sent back; hence this Courtmust determine that as well. It may be that in an appropriate caseArticle 126(4) may empower this Court to give a direction requiringthe substantive application to be determined by the Court of Appeal,perhaps after taking evidence. However, Article 126(4) presupposesthat this Court would, in general, determine the entire application.The “matter” thus means the “application”.
Other provisions reinforce this view. Where in the course ofproceedings in any court or tribunal any “question” of interpretation ofthe Constitution arises, Article 125(1) requires such “question" to bereferred to this Court. Similarly, Article 126(1) refers to any “question”relating to the infringement of a fundamental right. By using the term“matter" instead of “question", Article 126(3) manifests an intention torefer to something other than a “question", and in the context this canonly be the application itself. Article 128(1) refers to a “matter orproceeding" involving a "question" of law, again pointing to adifference between the two expressions; thereby confirming that
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“matter” refers to the entire subject-matter of the litigation rather thanto a mere question or issue arising therein.
I therefore hold that our jurisdiction extends not only to thequestion of infringement, but to the entire application.
2. It is possible that a party to a writ application may raisequestions of violation of fundamental rights totally unconnected withthe substance of that application. However any such question wouldbe irrelevant to the determination of such application, and the Courtwould have to refrain from considering or adjudicating upon suchquestion as it could have no relevance to its ultimate order. In myview it is not to such questions that Article 126(3) refers, but to aquestion of infringement properly arising in the course of hearing awrit application, just as Article 125(1) would apply to a questionrelating to the interpretation of the Constitution, properly arising inthe course of the proceedings of any court or tribunal, and not onewhich is irrelevant or of purely academic interest.
Article 126(1) confers sole and exclusive jurisdiction in respect ofinfringements of fundamental rights, and Article 126(2) prescribeshow that jurisdiction may be invoked. Article 126(3) is not anextension of or exception to those provisions; if a person who allegesthat his fundamental rights have been violated fails to comply withthem, he cannot smuggle that question into a writ application inwhich relief is claimed on different facts and grounds, and therebyseek a decision from this Court. On the other hand, there could betransactions or situations in which, on virtually the same facts andgrounds, a person appears entitled to claim relief from the Court ofAppeal through a writ application under Article 140 or 141, and fromthis Court by a fundamental rights application under Article 126.Since those provisions do not permit the joinder of such claims, theaggrieved party would have to institute two different proceedings, intwo different courts, in respect of virtually identical “causes of action”arising from the same transaction, unless there is express provisionpermitting joinder. The prevention, in such circumstances, of amultiplicity of suits (with their known concomitants) is the object ofArticle 126(3).
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Infringement of Article 11
Each of these habeas corpus petitions was filed by the wife of thedetenu concerned, and each Petitioner expressed “fear for the lifeand limb of the corpus”, who was being kept incommunicado. TheCourt directed that Attorneys-at-Law and relatives be given access,and thereafter each of the three detenues filed affidavits making thefollowing allegations of torture:
“I was blindfolded for 3 days after my arrest and subjected totorture and cruel, inhuman and degrading treatment. I still havea healing wound on my nose."
"… after I was arrested I was blindfolded and subjected totorture and cruel, inhuman and degrading treatment. At onestage when I was mercilessly assaulted I became [sic]"
“ . . . I was blindfolded continuously for three days and keptin the record room of the Dematagoda Police Station andsubjected to torture and cruel, inhuman and degradingtreatment after I was taken into custody."
These are assertions of “torture and cruel inhuman and degradingtreatment"; specifically, however, what is alleged is blindfolding, andby the 3rd detenu, a “merciless assault" with unstatedconsequences. No particulars have been given as to the nature ofthe treatment; there was no attempt to identify the personsresponsible and there is no suggestion that any of the Respondentswere involved. Reports later made by the J.M.O. set out theexaminee’s history as related by him; although some particulars havebeen stated therein, the detenues have not, in subsequent affidavits,sworn to those matters.
The alleged infringements of Article 11 could not have been thebasis of references under Article 126(3), firstly because there wasonly an assertion, and no prima facie evidence of such infringements,
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and secondly because there was no averment or evidence that theinfringements were by a party to the habeas corpus applications.
The Petitioners are not entitled to relief in respect of the allegedinfringements of Article 11.
Arrest and detention in breach of Article 13
According to I.P. Devasurendra, O.I.C. Crime Detective Bureau,Slave Island, on information received in the course of investigationsinto the bomb blast at the J.O.C. Headquarters, he arrestedS. Balachandran of Kotahena; in consequence of informationreceived from Balachandran, he proceeded to Talawakelle, on 3.7.91,and arrested the three detenues at the office of the UpcountryPeople’s Front, a political party. Chandrasekeram (the “1st detenu”)was the President, both of that party, and of a registered trade union,the "Upcountry Workers' Front”. Tharmalingam (the "2nd detenu”)was a school Principal and an elected member of the Nuwara EliyaPradeshiya Sabha; he was the Vice-President of that party. BawaAbdul Cader (the "3rd detenu”) was the Secretary of both the partyand the trade union. According to the affidavits filed by the wives ofthe 1st and 3rd detenues, they had been arrested on 3.7.91 at 7.30p.m. at the Talawakelle Police Station. In his own affidavit, the 1stdetenu says that at about 7.30 p.m. he was asked to come to theTalawakelle Police Station, that from there he went to Colombo in aprivate vehicle, and that he was arrested only on 4.7.91 at Colombo;the 3rd detenu confirms his wife's version. In her original affidavit, the2nd detenu’s wife stated that he had been arrested on 3.7.91 at hishouse; in her second affidavit, she stated that he was arrested at theTalawakelle Police Station at 8.00 p.m., and this is supported by hisown affidavit. In view of these conflicting affidavits, it appears morelikely that the detenues had been arrested on 3.7.91 at Talawakelle,probably at the party office.
Devasurendra says that he informed the detenues of the reasonsfor their arrest, but he has not disclosed those reasons in hisaffidavits; the detenues state that no reasons were given. Since theinformation obtained by him from Balachandran and others has alsonot been disclosed, I am unable even to draw any inference as tothose reasons. Devasurendra further states that on being questioned
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each of the three detenues had admitted “his links and participation,in giving protection to Nadarajah Varadan, one of the main suspectsin the said bomb blast”, and that “on information provided by them[he] managed to surround the safe house of Varadan during thesame night”; but their statements have not been produced. This isdenied by the detenues; the 3rd detenu admits that he knewVaradan; the 2nd detenu admits that he gave all necessaryassistance and information to the police, and assisted them to tracethe house where Varadan stayed. The only material before us inregard to any link between the detenues and Varadan is that the 2nddetenu knew him to be a “paper reporter"; if so, it would not havebeen unusual or suspicious for Varadan to have had contacts withthe political party and the trade union in the course of his legitimatejournalistic activities. To avoid arrest, Varadan swallowed a cyanidecapsule and committed suicide. In these circumstances it is probablethat some reason was given by Devasurendra for the arrest of thedetenues, but what that reason was I cannot say. Since theRespondents have not produced any of the contemporaneousdocumentary material, (such as notes of investigation and thestatements of Balachandran and others, and even of the detenues), itis not possible for me to come to any finding that there was credibleinformation or a reasonable suspicion that the detenues were in anyway involved in criminal activity, or that valid reasons were given fortheir arrest. It may well have been the case that the prematuredisclosure of such material might have been prejudicial to theinvestigations into the J.O.C. bomb blast, or to national security.However, that position was never taken up by the Respondents; itcould not have been taken up at the hearing, for by that time, wewere told, indictments had been filed in the High Court of Kandy, inwhich event much of that material would have been disclosed there. Itherefore hold that their arrests were in violation of Article 13(1).
It does not necessarily follow that their subsequent detention wasunlawful. The successful tracing of Varadan, Varadan’s suicide bymeans of a cyanide capsule, and the (alleged) admissions that theyhad links with Varadan, may well have justified the detention of thedetenues for a short period pending further investigation, if there hadbeen some evidence of criminal activity by Varadan. DetentionOrders under Emergency Regulation 19(2) were issued by S.P.,
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Crime Detective Bureau, on 4.7.91 authorising the detention ofall three detenues for 90 days for the purpose of further investigations.The detenues were duly produced before a Magistrate within 30 days.Upon the expiry of that period, Detention Orders under EmergencyRegulation 17 were issued by the Secretary, Defence, on 1.10.91;learned Counsel for the Petitioners concentrated their attack on theseOrders. In his affidavit dated 11.10.91, the 2nd Respondent (Director,Crime Detective Bureau) claimed that as this was the first occasionon which “the Police had arrested an upcountry politician involved inharbouring L.T.T.E. cadres, it was necessary to investigate theinvolvement of the said organisation and the leaders including the[detenues]”, and “since the [detenues were] involved in Estate Unionsit is not possible to expedite an investigation due to lack ofinformation received by the investigators". He added that the“investigators are taking all steps to complete the said investigationwithin a reasonable period, and therefore … the detention of the[detenues]… is helpful to continue with the said investigation"; and“after submitting facts before the Secretary to the Ministry ofDefence, the Secretary had authorised the detention of the[detenues]” under Emergency Regulation 17(1). Those DetentionOrders were issued, after the habeas corpus applications were filed,on 1.10.91. We do not know what “facts" were submitted to theSecretary, Defence, nor do we have an affidavit from him (or anyoneelse) as to the material on the basis of which he formed the requisiteopinion under Emergency Regulation 17, or explaining how or why heformed that opinion. After these References were made, the 2ndRespondent filed a further affidavit dated 14.4.92 in this Court, butfurnished no clarification. While this Court will not lightly interfere withthe subjective opinion, bona fide held, of the competent authority(see Hirdaramani v. Ratnavale,mWickremabandu v. Herath,<2‘) that isnot to say that this Court will surrender its judgment to that of theExecutive, for that would imperil the liberty of every citizen. Sufficientmaterial must be placed before the Court to satisfy us that thedeprivation of liberty, not limited in point of time, was not arbitrary,capricious or unreasonable. The unexplained failure of theRespondents to place any material whatsoever leads but to oneconclusion, that there was no such material, and therefore that theDetention Orders were unreasonable.
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For these reasons at the conclusion of the hearing, on 4.5.92, weheld that the Detention Orders were void. As the proceedings in theHigh Court of Kandy were scheduled to commence on 18.5.92,Counsel agreed that the question of custody pending trial should bedetermined by the High Court and that (as they had no desire toavoid standing trial) the detenues may remain in the custody of theRespondents until they were produced in the High Court on 18.5.92.It was further agreed that if indictments were duly filed and served onthem, the question of their custody pending trial according to law,should be determined by the High Court, and that if such indictmentswere not filed or served on or before 18.5.92, the detenues would bereleased forthwith. We therefore did not have to. consider making anorder for the release of the detenues, but directed the Respondents torelease them forthwith if no such indictments were filed and served.
I grant the Petitioner in each case a declaration that the detenuhad been arrested in violation of Article 13(1), and detained inviolation of Article 13(2). I order the State to pay to each Petitioner, onbehalf of the detenu concerned, a sum of Rs. 2,500/- ascompensation and Rs. 2,500/- as costs.
In respect of the Habeas Corpus applications, I confirm thedirection to the Respondents to produce the detenues before theHigh Court of Kandy to enable that Court to determine their custodypending trial, according to law, and to release them forthwith ifindictments have not been filed and served on or before 18.5.92.
KULATUNGA, J. -1 agree.WADUGODAPITIYA, J. – I agree.Petition granted.