032-SLLR-SLLR-1992-V-1-SUBBASH-CHANDRA-FERNANDO-v.-KAPILARATNE-OFFICER-IN-CHARGE-POLICE-STATIO.pdf
SUBBASH CHANDRA FERNANDOv.
KAPILARATNE, OFFICER-IN-CHARGE, POLICE STATION,GAMPAHA AND OTHERS
SUPREME COURT,
BANDARANAYAKE, J.,
M. D. H. FERNANDO, J. AND
KULATUNGA, J.
S.C. APPLICATION NO. 1/91
02 AUGUST, 1991, AND 11 AND 26 SEPTEMBER, 1991
Fundamental Rights – Violation of fundamental rights under Articles 11,13(1) and
(2) – Excessive detention – Test to be applied to an order of preventive detention.
Held:
Detention for an excessive period and the circumstance that it was no longernecessary to keep the detainee in detention to prevent him from acting inany manner prejudicial to the national security or the maintenance of publicorder will make the detention illegal.
The Secretary is competent to make an order for preventive detention butthis should be on the basis of his subjective satisfaction as to the existenceof reasonable probability of the likelihood of the detainee acting in a mannersimilar to his past acts and preventing him by detention from doing so. It mayor may not relate to an offence. Yet when such an order is challenged, themere production of the order may not be adequate. The court is competentto review the order applying the test of reasonableness in the wide sense.
Cases referred to:
Breen v. Amalgamated Engineering Union (1971) QB175.
Hirdaramani v. Ratnavale 75 NLR 67.
Wickremabandu v. Cyril Herath SC Application No. 27/88 SC Minutes of06.04.90.
APPLICATION for infringement of fundamental rights.
P. D. Gomes for petitioner.
A. R. N. Fernando, S.S.C. with Vijitha Malalgoda, S.C. for respondents.
Curadvvult.
10th December, 1991.
KULATUNGA, J.
The petitioner is a Medical Practitioner with a MBBS degree fromthe University of Ceylon. He was arrested on 19.07.89 on a complaintthat he had assaulted Dr. Gunatilaka, Surgeon, Base Hospital,Gampaha and obstructed the carrying on of the service at thehospital in breach of Regulation 46(2)(a)(i) of the EmergencyRegulations. Thereafter he was detained at the Welikada Prison on anorder dated 20.07.89 under Regulation 19(2) (1R5). He remained insuch detention until 27.09.89 when a preventive detention order(8R1) was made in terms of which it was directed that he be detainedat the New Magazine Prison, Welikada where he has been kept incontinuous detention up to date.
The complaint against the petitioner was that he had assaulted Dr.Gunatilaka twice on 19.07.89 first'at the path lab, a private medicalestablishment, and thereafter at the Base Hospital, Gampaha.Although he was arrested for such conduct under EmergencyRegulations, criminal proceedings were instituted on 12.04.90 in M.C.Gampaha case No. 98646 under the normal law. He was charged ontwo counts with voluntarily causing hurt to Dr. Gunatilaka punishableunder s.314 of the Penal Code. On 01.10.90 the petitioner admittedthe commission of offences but without a formal plea of guilt and wasordered to pay Rs. 500/- as State costs (Vide CP5).
The petitioner states that in consequence of representations madeby him on 26.07.90 and 02.08.90 to the Advisory Committeeestablished by Regulation 17 of the Emergency Regulations, theCommittee recommended his release from custody but this was notacted upon. He alleges that he has been detained under EmergencyRegulations and kept in continuous detention despite the terminationof the criminal proceedings against him because he happens to bethe brother-in-law of Rohana Wijeweera the late acknowledged leaderof the Janatha Vimukthi Peramuna, a political party that wasproscribed; that whilst he was in detention a Mercedez Benz motorcar belonging to him was removed by the 4th respondent (SeniorSuperintendent of Police); that the petitioner’s private residence wasset on fire and his private nursing home extensively damaged at the
instigation of the police; and that he himself has been subjected tonumerous assaults by prison officials.
This Court granted the petitioner leave to proceed for allegedviolations of the petitioner’s rights under Articles 11,13(1) and (2) ofthe Constitution. The petitioner’s version of the incident which led tohis arrest is that when he met Dr. Gunatilaka and questioned as towhy Dr. Gunatilaka had failed, though requested, to attend on apatient who was gravely ill and needed urgent attention and waslying at the petitioner’s private nursing home, Dr. Gunatilaka was rudeand assaulted him; whereupon he visited the Police Station to make acomplaint when he was arrested without being informed of the reasonfor such arrest in breach of Article 13(1) of the Constitution. However,it is clear from the notes of investigation (1R1) and the petitioner’sstatement to the police (1R2) that the police had informed him of thecharge against him; and as such there has been no violation ofArticle 13(1).
As regards the detention order under Regulation 17(1), theaffidavit of the 1st respondent, Headquarters Inspector, Gampahaduring the relevant period, shows that the fact that the petitioner wasthe brother-in-law of Rohana Wijeweera is a circumstance which hasweighed with the authorities. The affidavit in support of the detentionhas been filed by the 20th respondent, General Cyril Ranatunga,Secretary, Defence, with a supporting affidavit 20R1 from L. M.Jayawardena, Senior Superintendent of Police. The 20th respondentsays that it was his predecessor in office General Attygalle who madethe order 8R1 on an application made by the Inspector General ofPolice after considering the material including the material containedin 20R1. He adds that the said order has been periodically reviewedby his predecessor in office and himself.
The material urged against the petitioner in 20R1 is –
threatening the publisher of “Janadina" newspaper;
organising an anti-government demonstration violatingEmergency Regulations;
conducting lectures in support of the JVP;
his vehicle has been used for JVP activities;
inciting people to support JVP organizations;
threatening prison staff whilst in detention with reprisals by theJVP; and
assaulting doctors at the Gampaha Hospital and the DentalInstitute Colombo.
Mr. Gomes, learned Counsel for the petitioner challenged thecorrectness or the relevancy of these grounds.
As regards the material disclosed at (a) above, Mr. Gomessubmits that the truth as is borne out by the document CP4 is that the“Janadina” had in February 1989 published a derogatory statementabout the petitioner; that the petitioner met the editor and questionedhim about it and thereafter complained to the Press Councilsuccessfully and obtained a direction on the editor to publish acorrection; that the demonstration referred to at (b) above occurredon 29th July 1987 when the petitioner was proceeding to his privatenursing home and met a crowd on the road. It was during curfewhours. The crowd was demonstrating against the signing of the Indo-Sri Lanka Peace Accord. He was arrested and detained until theemergency was lifted when he was released; his prosecution underEmergency Regulations on account of that incident ended with hisacquittal on 31.01.91 in case No. 4066/89 by the High Court ofColombo; in S.C. Application No. 7/89 SCM 03.05.91 he wasawarded compensation in a sum of Rs. 25,000/- for the infringementof his rights under Article 11 of the Constitution during his saiddetention; that the petitioner denies the allegations at (e), (d) and (e)above; that the threat to prison staff referred to at (f) above is anincident which occurred in the prison during the petitioner’sdetention; and that the alleged assault on a doctor at the DentalInstitute in Colombo referred to at (g) above also relates to anincident during his detention.
Mr. Gomes submits that the petitioner was not indicted underEmergency Regulations for the assault which occasioned his arrest
presumably because the evidence did not warrant such indictment;that there is no justification for his detention after the termination ofhis prosecution before the Magistrate; that the decision of theSecretary in making the order of detention is vitiated in that it isaffected by irrelevant considerations and the Secretary never had theopinion he claims to have had in making the said order. Mr. Gomescites Breen v. Amalgamated Engineering Union(,) and Hirdaramani v.Ratnavaie{2) in support. Mr. A. R. N. Fernando, learned Senior StateCounsel submits that even if the assault on Dr. Gunatilaka by itselfmay not be adequate for making the impugned order, it is justified inthe background of the petitioner’s conduct; that the Secretary hasalso taken into consideration the petitioner’s recent conduct in prisonwhich is unsatisfactory in continuing his detention; and that unless hisconduct in prison improves he cannot be released.
Whilst there is some substance in the criticism levelled against thematerial urged in support of the detention order, it must be kept inmind that it is an order for preventive detention which the Secretary iscompetent to make on the basis of his subjective satisfaction as tothe existence of “a reasonable probablity of the likelihood of thedetenu acting in a manner similar to his past acts and preventing Anby detention from doing so … It may or may not relate to an offence”.Shukla – The Constitution of India 7th ed. p.134. Yet when such anorder is challenged the mere production of the order may not beadequate and this Court is competent to review the order applying“the test of reasonableness, in the wide sense” as was held in theDivisional Bench decision in Wickremabandu v. Cyril Herath<3).Applying that test to the facts of this case, I am unable to hold thatthe initial detention of the petitioner is vitiated on the ground ofirrelevant considerations. It is also not possible to conclude that theSecretary never had the opinion he claims to have had in making theorder. I therefore hold that the order 8R1 was validly made and thepetitioner’s rights under Article 13(2) have not been thereby infringed.However, the Court has to consider whether the prolonged detentionof the petitioner under that order can be defended; but before Iconsider that question I shall consider the alleged infringement of thepetitioner’s rights under Article 11.
The petitioner alleges that on 21.09.90 after he came before thisCourt in S.C. Application 7/89 referred to above certain officials
assaulted him; the 7th respondent, jailor arid the 8th respondent,Superintendent of Prisons dealt two blows on his face; that on
the 9th and the 10th respondents, prison guards, assaultedhim with wooden poles; that on 20.11.90 the 18th respondent, jailor,assaulted him; that on 01.12.90 the 7th respondent, jailor and tenothers assaulted him in ward No. 41 of the General Hospital,Colombo in the course of which they broke his spectacles; and theJ.M.O. who examined him on 03.12.90 found injuries on his body;and that on 10.12.90 the 15th and the 16th respondents, overseers ofthe Prison Hospital, assaulted him with hands and wooden poles;and he was again referred to the J.M.O. who examined him.
Medical reports submitted by the Assistant Judicial MedicalOfficer and the Deputy Judicial Medical Officer, Colombo incompliance with directions given by this Court tend to support theallegations of assault made by thq petitioner whilst the affidavits ofthe prison officials who are respondents including medical officersattached to the Prison Hospital show that there had been aprogressive deterioration in the relations between the petitioner andprison officials; and that certain incidents had occurred betweenthem in the course of which it is probable that some force was usedon the petitioner. However, the respondents do not admit having usedforce on him. I shall now discuss this evidence.
The Asst. J.M.O. had examined the petitioner on 24.10.90. Hegave a history of assault by the 7th and the 8th respondents on
and by the 9th and the 10th respondents with poles andhands on 23.09.90. He complained of pain and tenderness over theleft side of chest. Dr. Vasantha Perera consultant orthopaedicsurgeon diagnosed the pain as being due to soft tissue injury. TheDeputy J.M.O. Colombo had examined the petitioner on 03.12.90.The petitioner told him that on 01.12,90 the 17th respondent and tenothers assaulted him with clubs and kicked him on the lowerabdomen when he was in ward No. 41 of the General HospitalColombo. The petitioner complained of chest pain and difficulty inpassing urine. He also complained that the assailants had damagedhis spectacles and dentures.
The Deputy J.M.O. found on him –
Contusions of the upper and lower lids of the right eyelid. Thiscould have been caused when his spectacles were damaged.
An abrasion of the inner aspect of the right wrist area. Thiscould have been caused by the handcuffs.
The Deputy J.M.O. next examined the petitioner on 12,12.90 whenthe petitioner gave a history of assault by the 15th and the 16threspondents on 10.12.90. The petitioner complained of pain in thechest and lower abdomen and difficulty in passing urine. There wereno external injuries.
The petitioner filed this application on 02.01.91. According toanother report by the Asst. J.M.O. who had examined the petitioneron 19.01.91, the petitioner complained that on 05.01.91 he had beenassaulted by the 15th respondent and another jailor with hands and. feet on his head, arms and abdomen; further that he had beenassaulted on 19.01.91 by male nurse Mahinda on the head andshoulder with a wooden pole and hands; he was also kicked on theabdomen. The Asst. J.M.O. observed tenderness of the left shoulderwith limitation of movement of the joint. He also had tenderness of theright lower abdomen. He was shown to the consultant orthopaedicsurgeon who prescribed treatment. The patient was seen again on
and 23.02.91 when he showed improvement.
The 7th and 8th respondents deny the alleged assault. They saythat on 21.09.90 when the petitioner was taken to the High Court herequested that he be taken without handcuffs. When this was notacceded to he became abusive and made allegations against prisonstaff.. The 9th, 10th, 15th and 18th respondents deny the allegedassaults. The 16th respondent has not entered an appearance. The17th respondent says that on 01.12.90 at the General Hospital,Colombo the petitioner attempted to snatch a gun from a policeofficer, hit the 17th respondent and climbed a bed and becameabusive to prison staff. This respondent too denies having assaultedthe petitioner.
The 6th respondent, the Commissioner of Prisons says that therewere complaints about the petitioner’s unruly behaviour, the
underlying cause of all complaints being the'-petitioner's objection tobeing handcuffed when taken to Court. The 13th respondent Dr. RaniFernando, the Medical Officer Prisons says that the petitioner being adoctor demanded others to prescribe him medicines, food and otherfacilities of his choice; when these demands were not met he becameabusive and refused treatment; once he threatened her that by notacceding to his demands she would have to face consequences atthe hands of the J.V.P. The 14th respondent Dr. Perimpanayagam,Senior Medical Officer Prisons describes the petitioner's behaviour asunruly, irrational, abusive and violent; he says that the petitioner onceassaulted a male nurse who had to be warded at the GeneralHospital in consequence; that Professor Sheriff recommended apsychiatrist’s opinion but the petitioner refused' to be examined at thepsychiatric clinic.
Upon a consideration of the evidence it is my finding that thepetitioner's complaints of assault are not fabrications but only a one-sided version of incidents with the prison staff in the course of whichconsiderable force appears to have been used on him. The use ofsuch force is perhaps unfortunate; but I cannot in all thecircumstances hold that the petitioner has been thereby subjected totorture or cruel, inhuman or degrading treatment. As such the allegedviolation of Article 11 has not been established.
As indicated earlier in this judgment I shall now consider thequestion of the excessiveness of the detention. Can the petitioner benow regarded as being a threat to national security or public order ? Iam of the view that prolonged incarceration extending over a periodof two years has affected the petitioner physically and mentally;further Professor Sheriff has recommended a psychiatrist’s opinion onhim. The petitioner’s private residence has been burnt and destroyed;his private nursing home has been damaged, even though there is noevidence that the police were responsible for it. His car has beenseized by the police. No order of requisition has been produced asauthority for such seizure. If the vehicle was seized for being used inconnection with subversive activity as alleged, no charge has beenframed against anybody. During the hearing before us, learnedSenior State Counsel undertook to release the vehicle. A report madeto this Court by the agents for the vehicle shows that it is presentlyunusable.
It is also relevant to note that at -the time of the filing of thisapplication the aforesaid Advisory Committee had recommended therelease of the petitioner. The Secretary, Defence is however notbound by such recommendation. By 12.06.91 this application wasready for argument when Senior State Counsel undertook to explorethe possibility of the petitioner’s release from custody. No adjustmentcould be effected; instead a submission was made that the petitionercannot be released unless his conduct in prison improves. This is nota valid ground for extending the petitioner’s detention. He is not aconvicted prisoner in respect of whom punishments includingimprisonment can be imposed for offences against prison disciplineas may be competent under Sections 79 and 80 of the PrisonsOrdinance (Cap. 54).
The petitioner also informed us that his incarceration hasprevented him from seeking to migrate to the United Kingdom wherehis family is and where he is eligible to practise his profession and forwhich he has facilities. Mr. Gomes, his Counsel is not prepared toconcede that the petitioner is in need of psychiatric treatment. In allthe circumstances, it cannot be said that it is now necessary to keephim in detention to prevent him from acting in any manner prejudicialto the national security or the maintenance of public order. I hold thatthe'detention order 8R1 is vitiated for excessiveness and the same isinvalid after 02.01.91 i.e. the date of this application and accordinglygrant a declaration that the petitioner’s detention after that date isviolative of his rights under Article 13(2) of the Constitution. I directthe 6th and the 20th respondents to release him from custody. I alsodirect the State to pay him compensation in a sum of Rs. 9000/-(Rupees Nine Thousand) together with costs in a sum of Rs. 1500/-(Rupees One Thousand Five Hundred).
BANDARANAYAKE, J. -1 agree.
M. D. H. FERNANDO, J. -1 agree.Relief granted for excessive detention.