shall be non – bailable and no person accused of such an offenceshall in any circumstances be admitted to bail.”
In view of the provision that the offence shall be non -bailable andthat a person accused of such offence shall not in any circumstancesbe admitted to bail, Magistrates have committed the Petitioners toremand custody.
It was submitted by Counsel appearing for the Petitioners that theyhave filed applications for bail in the Court of Appeal, in terms of section404 of the Code of Criminal Procedure Act No.15 of 1979. The basis ofthese applications have been that although there is a bar to their releaseby the magistrate, in view of the provisions of the second part of section404 of the Code, the Court of Appeal may direct that the persons bereleased on bail.
The Divisional Bench of this Court in the case of Attorney Generalvs Sumathipala (supra) referred to above held inter alia as follows :
“It is thus clearly evident that the effect of Section 47(1)of the Immigrants and Emigrants Act is that no personaccused of such an offence shall be admitted to bail. Therestriction thus devolves on an accused, who would have tobe incarcerated without a remedy until the conclusion ofthe trial. Compared with the provisions of the fundamentalrights enshrined in our Constitution, it is an arguable pointthis position leads to an injustice as even a suspect wouldbe deprived of his liberty irrespective of the fact that in
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terms of the provisions contained in the Chapter onfundamental rights of the Constitution, the basic rights ofthe individual must be safeguarded.
However, it is to be noted that although the liberty andfreedom of an individual is thus restricted in terms of theprovisions of section 47(1) of the Immigrants and EmigrantsAct, that injustice cannot be cured by this Court as it is forthe legislature, viz ; the Parliament to make necessaryamendments if there is a conflict between the specificprovisions and individual liberty."
The resulting position as noted in the judgment of the DivisionalBench is that the Petitioners have to continue in custody until theconclusion of the proceedings against them although reference hasbeen made to the fundamental rights of persons who have to beincarcerated without a remedy, it has to be noted that the DivisionalBench has not made any findings as to the content and ambit of thefundamental right guaranteed by Article 13(2) of the Constitution. Indeedsuch a matter was not directly in issue in the case presented to theDivisional Bench.
The observation of the Divisional Bench that if there is a conflictbetween the specific provisions of Section 47(1) of the Immigrantsand Emigrants Act and individual liberty it is for the legislatureto make the necessary amendments, has to be considered asobiter dicta since the two questions on which special leave toappeal had been granted and the matter set down for hearingbefore the Divisional Bench relate only to the interpretation ofsection 404 of the Code of Criminal Procedure Act and Section47(1) of the Immigrants and Emigrants Act.
In this background we have to address the present complaints of theinfringement of Article 13(2) of the Constitution. This provision readsas follows.:
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“Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought before the judgeof the nearest competent court according to procedureestablished by law, and shall not be further held in custody,detained or deprived of personal liberty except upon and interms of the order of such judge made in accordance withprocedure established bylaw."
The provision guarantees to every person held in custody, detainedor otherwise deprived of personal liberty, two specific rights; theyare:
the right to be brought up before the judge of the nearestcompetent court according to the procedure established bylaw and ;
the right not to be further held in custody, detained or deprived,personal liberty except upon and in terms of an order ofsuch judge made in accordance with the procedureestablished by law.
The procedure established by law in respect of the right referred toabove in (i) above is contained in Sections 115 and 116 of the Code ofCriminal Procedure Act. It is not in dispute that this procedure hasbeen complied with and that the Petitioners have been produced beforethe judge of the nearest competent court.
The alleged infringement is in respect of the second right ascontained in (ii) above, namely the absence of a procedure establishedby law in accordance with which the persons would be further held incustody, detained or deprived of personal liberty. The stipulation thatthere be a procedure established by law necessarily envisages thatsuch procedure would contain provisions for an adjudication of thematter of continued detention by the judge before whom the person isproduced or by a court having jurisdiction in the matter.
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The findings of the Divisional Bench referred to above is that therestriction in section 47(1) “devolves on an accused, who would haveto be incarcerated without remedy until the conclusion of the trial”. Inthe result the person held in custody is denied a procedure establishedby law in terms of which his continued detention would be adjudicatedupon.
Deputy Solicitor General submitted that the restriction contained inSection 47(1) is only in respect of a person accused of any offencepunishable under Section 45 and that a person who has been producedin court and remanded and against whom no charges have been framedwill not come within this restriction. He submitted that such a personwould be only a suspect and the Magistrate would have jurisdiction toconsider the release of such persons on bail in terms of Section 403of the Code of Criminal Procedure Act, on the basis that he is producedin respect of a non-bailable offence. This has certainly not been thecase of the State previously since all persons have been routinelyremanded by the Magistrate on the basis that there is a bar on theirrelease on bail in terms of Section 47(1). It is on that premise thatapplications had been made to the Court of Appeal in terms of Section404 of the Code. Counsel appearing for the Petitioners who filedapplications in the Court of Appeal submitted that their applicationshave been dismissed by the Court of Appeal on the strength of thejudgment of the Divisional Bench. If the contention of the Deputy SolicitorGeneral had been presented to the Magistrate this situation would nothave arisen. It is clear from the routine orders made by Magistratesremanding these persons that it has been done on the basis that thebar in Section 47(1) applies from the time a person is produced beforethe judge. In any event since the submissions have been made withregard to the meaning of the term “accused” as appearing in Section47(1), it is incumbent to consider this matter further.
It is to be noted at the outset that the Divisional Bench in its judgmenthas not made any distinction between a person “accused of” or“Suspected of having committed an offence in terms of section 45.
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The Deputy Solicitor General submitted that since the word “accused’is imprinted in bold letters in the judgment it should be consideredthat the terms would not extend to a person who is suspected of havingcommitted an offence. Such an inference cannot be drawn by the merefact that the word appears in bold type. In fact in a later sentence ofthe passage cited above the judgment of the Divisional Bench statesthat “even a suspect would be deprived of his liberty’.
We have pointed out to Deputy Solicitor General in the course ofsubmissions that the Code of Criminal Procedure Act uses the words“accused’ and “suspect", interchangeably. In Section 114 of the Codewhich refers to a situation where it is found that there is not sufficientevidence or reasonable suspicion to justify producing the personarrested in court and such person is released on a bond by the Police,he is referred to as the “accused’. Thus a person is described as an“accused” well before a plaint is filed.
In Section 115(1) which covers situations where the person isproduced in court the reference is to a “suspect”. On the other handthe provisions in section 402 with regard to the release of a personbrought before the court the reference is to an “accused”. Similarly inSection 403 the reference is to an “accused”.
It is in this context that in the case of Attorney General vs Nilanthiat page 203, the Court of Appeal upheld the submission of the DeputySolicitor General who appeared in that case that the words “charged-with” or “ accused of ” as contained in Section 10 of the OffensiveWeapons Act should necessarily be given a meaning which is akin to“suspected of."
Deputy Solicitior General persisted in his submission and placedreliance on the judgment of this Court in Tunnaya alias Gunapala vsOIC, Galewela
It is to be noted that the findings in that case relate to what constitutescommencement of proceedings in terms of the Code of CriminalProcedure Act. The Court departed from previous dicta in Attorney
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General vs Punchi Banda at 40, that the production of a suspect interms of Section 116(1) of the Code amounts to an institution ofproceedings in terms of section 136(1 )(d). The observations made inthat judgment had been considered in the case of Attorney General vsNilanthi (supra) and the Court held that they are inapplicable to considerthe meaning of phrases” charged with" and “accused of. We are inentire agreement with that finding.
In terms of Article 13(1) of the Constitution every person arrestedhas to be informed of the reasons for his arrest.
Section 23(1) of the Code of Criminal Procedure Act require that theperson arrested be informed of the nature of the charge or allegationupon which he is arrested. Thus, a person is accused of havingcommitted an offence at the very point of his arrest. He is producedbefore the Magistrate as a person accused of having committed anoffence. Throughout the proceedings in the Magistrates court or anyother court before which proceedings are continued such person isreferred to as an accused in view of the accusation on which the criminaljustice process commences against him.
The term “suspicion” or “suspect” derives from the material on whichsuch accusation is made. This suspicion transforms to a charge aftera plaint or indictment is filed. After a trial it transforms into a convictionor ends by way of an acquittal, as the case may be.
Therefore we see no merit in the submission of the Deputy SolicitorGeneral that section 47(1) applies only after plaint has been filedagainst the person. The Petitioners have been in custody throughouton the basis that there is a bar to their release on bail in terms ofSection 47(1).
The next matter to be considered is the alleged infringement of thefundamental right guaranteed by Article 13(2) due to the absence of aprocedure established by law, in terms of which the continued detentioncould be adjudicated upon.
2 – CM 8433
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Deputy Solicitor General submitted that Section 47(1) as interpretedby the Divisional Bench which denied to the Petitioners a procedureupon which their continued detention could be adjudicated upon, isexisting law since the amendment was.in 1961 and should be held asbeing valid and operative in terms of Article 16(1) of the Constitutionas existing law. Article 16(1) relied upon by the Deputy Solicitor Generalreads as follows:
“All existing written law and unwritten law shall be validand operative notwithstanding any inconsistency with thepreceding provisions of this Chapter."
In this regard it has to be noted that this Court is not required topronounce upon the validity of Section 47(1) which has been interpretedas noted above by the Divisional Bench. The Court has to consider theambit of the fundamental right guaranteed by Article 13(2) and therelief, if any, to be granted to the Petitioners in the absence of aprocedure established by law to adjudicate on their continued detention.
In this context we note that in terms of Article 118(b) of theConstitution this Court is vested with jurisdiction “ for the protection offundamental rights”. The word “Protection” is wider than the word“enforcement”. It is incumbent on this Court to make such orders asare necessary to ensure that the fundamental rights guaranteed bythe Constitution are adequately protected and safeguarded.Fundamental rights forms part of the sovereignty of the People andArticle 4(d) of the Constitution being a basic provision on which thestructure of our Constitution is founded, requires that fundamental rightsbe “respected, secured and advanced by all organs of government andshall not be abridged, restricted or denied save in the manner and tothe extent hereinafter provided.
Hence the rights guaranteed to the Petitioners in terms of Article13(2) should be secured and advanced by this Court and not beabridged, restricted or denied. Any such abridgment, restriction ordenial has to be based only on specific provisions of the Constitutionitself.
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Article 16(1) relied on by the Deputy Solicitor General does notamount to a specific restriction of the fundamental rights guaranteedby Article 13(2) of the Constitution. The permitted restrictions arecontained in Article 15(7) of the Constitution and the provisions ofSection 47(1) of the Immigrants and Emigrants Act could never beconstrued as restricting the fundamental right guaranteed by Article13(2) of the Constitution.
The next matter to be considered is the relief to be granted by thisCourt, in the absence of a procedure established by law in terms ofwhich continued detenton of a person could be adjudicated upon.
In this context we have to note that Article 140 of the Constitutionwhich empowers the Court of Appeal to issue writs has a similarprovision which states that such writs shall be issued ‘according tolaw".
There is no law as defined in Article 170 of the Constitution withregard to the grant and issue of these writs. However, from thepromulgation of the Constitution and even previously, writs have beengranted on the basis of the common law principles as evolved by thejudgments of the Superior Courts. We are of the view that the provisionsof Article 13(2) should be similarly given effect to and the continueddetention of persons accused of offences under the relevant provisionsof Section 45 of the immigrants and Emigrants Act should beadjudicated upon according to the procedure applicable to non -bailableoffences.
In this context the Deputy Solicitor General submitted that theprinciples of law evolved in terms of section 403 of the Code of CriminalProcedure Act should be taken into account in considering the contineddetention of these persons.
We are inclined to agree with the submission and hold that thecontinued detention of the persons who are produced with havingcommitted offences in terms of section 45 of the Immigrants andEmigrants Act should be considered on the basis of the provisions ofSection 403 of the Code of Criminal Procedure Act and the applicablecase law.
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We have had to deal with these complaints as a matter of urgency,in view of the continuing flow of complaints from persons who are incustody without an adjudication by any Court of law as to the basis oftheir detention. It was submitted that about 10 days ago a femalesuspect in the Negombo prison being one of the Petitioners who washeld in a crowded cell died, since there was no response to urgentappeals for medical assistance when she fell ill in the night.
Continued detention of such large numbers necessarily resulting inover crowding in prisons, without proper adjudication of the basis oftheir detention negates the very essence of the fundamental rightguranteed by Article 13(2) of the Constitution.
We accordingly hold that the fundamental rights of the Petitionersguaranteed by Article 13(2) of the Constitution have been infringed byexecutive or administrative action, since the Petitioners have beendetained in custody merely upon their being produced in court andincarcerated without a remedy until the conclusion of their trials. Onthe basis of the findings stated above the respective Magistrate Courtsare directed to decide on the continued detention of these persons inaccordance with the procedure applicable to persons accused of non-bailable offences. Registrar is directed to send copies of the judgmentto the Magistrates Court of Negombo, Chief Magistrates Court,Colombo, Magistrate Court of Fort, Colombo and Kalutara.
Applications are allowed. No costs.
JAYASINGHE J., — l agree.
Application allowed.
Fundamental rights of the petitioners have been infringed. TheMagistrate's courts are directed to decide on the continued detentionin accordance with the procedure applicable to non-bailable offences.