SUNIL RODRIGO (ON BEHALF OF B, SIRISENA COORAY) v. CHANDANANDA DE SILVA AND

029-SLLR-SLLR-1997-V3-SUNIL-RODRIGO-ON-BEHALF-OF-B-SIRISENA-COORAY-v.-CHANDANANDA-DE-SILVA-AND.pdf


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Sunil Rodrigo (on behalf of B. Sirisena Cooray) v.
Chandananda De Silva and Others
265
SUNIL RODRIGO
(ON BEHALF OF B. SIRISENA COORAY)v.
CHANDANANDA DE SILVA AND OTHERS
SUPREME COURT.
AMERASINGHE, J.
WIJETUNGA, J. ANDGUNAWARDANA, J.
S.C. APPLICATION (F.R.) 478/97JULY 21 AND 22, 1997.
Fundamental Rights – Preventive detention – Order under EmergencyRegulation 17- Alleged conspiracy to assassinate the President – Offence underE.R. 24(b) – Detenu arrested on unverified information and vague suspicion -Validity of detention – Articles 13(1) and 13(2) of the Constitution.
The detenu was arrested by Police Officers on the 16th June 1997 acting on anorder of the Secretary, Ministry of Defence of the same date. In his order theSecretary stated that he was acting by virtue of powers vested in him byregulation 17(1) of the Emergency Regulations published in Government Gazette(extraordinary) No. 843/12 of 4th November 1994. Regulation 17(1) states:
‘Where the Secretary is satisfied upon the material submitted to him or uponsuch further material as may be called for by him with respect to any person,that with a view to preventing such person.
from acting in any manner prejudicial to the national security or to themaintenance of public order…
…
…
It is necessary so to do, the Secretary may make order that such person betaken into custody for a period not exceeding three months…"
The order of the Secretary did not specify the period. But by an amendingorder dated 2nd July 1997 he sought to amend the order making it effective fora period of three months from 16th June 1997.
In his affidavit to court the Secretary stated by way of justifying his order thathe was informed by the Inspector General of Police and other Senior Police
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Officers that they had received reliable intelligence that the detenu haddiscussed with others about assassinating the President of Sri Lanka orcausing physical harm to her and to create unrest in the country.
The information relied upon by the Secretary had not been verified either byPolice Officers or by the Secretary himself. The Secretary notified the advisorycommittee under regulation 17 in writing of the fact of making the detentionorder on the basis of information he had received. The Police Officer whoexecuted the order informed the detenu of the "purposes* of the arrest ascontained in the order. But he was not informed of the reason for his arrest viz.the grounds and particulars therefor either at the time of the arrest or duringhis interrogation by the Police. Nor could the detenu hope, on the basis of theSecretary's notification, to receive from the Chairman of the AdvisoryCommittee, in terms of regulation 17(9), the “grounds” and "particulars'relevant to the Secretary’s decision.
Held:
The amendment of the original order of detention for specifying the period ofdetention did not remedy the defect. Hence the detention from 16th June to2nd July 1997 was unconstitutional.
The court will not usurp the discretion of the Secretary and substitute its ownviews for that of the Secretary. However, the Court must determine whether onthe material before him the Secretary was reasonably satisfied that the detenushould be arrested and detained.
In issuing the detention order the Secretary acted on unverified reports ofPolice Officers that were vague and suspicious. He abdicated his authorityand mechanically signed the detention order. His decision was not only wrongbut unreasonably wrong. It was not his opinion. The arrest made in pursuanceof such an order was not according to procedure prescribed by law andtherefore contravened Article 13(1) of the Constitution and was unlawful andinvalid.
Per Amerasinghe, J.
“The decision whether certain activities of a citizen constitutes a threat tonational security is a matter for the Secretary and not of a Police Officer,whatever his rank might be. The power of the Secretary given by regulation17(1) concerns physical liberty of persons, including those who have not yet,
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nor never, committed an offence. It is therefore an exceedingly great power,indeed an awesome power, that must be exercised with corresponding degreeof responsibility".
Conspiracy to murder the President is an offence under regulation 24(b), andso there was an offence the detenu was supposed to have committed whichwas the ‘reason” for his arrest and detention. He was not informed of thatreason as required by Article 13(1) of the Constitution.
The detenu was not arrested under a procedure established by law. He wasarrested on vague suspicion in circumstances that showed a recklessdisregard for his right to personal liberty. In the circumstances by failing toproduce him before a judge the respondents transgressed his rights underArticle 13(2) of the Constitution.
Cases referred to:
Secretary of State for Education and Science v. Tameside Borough Council(1977) AC 1014.
Nakkuda Ali v. Jayaratne 51 NLR 457 (P.C.) (1951) A.C. 66 (PC.)
Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds (1979) 3All ER 129 (P.C.)
Director of Public Prosecutions v. Head (1959) A.C. 83.110.
5 Dumbell v. Roberts (1944) 1 ALL ER 326.
Muttusamy v. Kannangara (1951) 52 NLR 324.
Faiz v. Attorney-General (1995) 1 Sri L.R. 372.
Faurdeen v. Jayetilleke and Others S.C. Application 366/93 S.C. Minutes 8September 1994.
Chanrta Pieris v. Attorney-General(1994) 1 Sri L.R. 1,51.
Siriwardena v. Uyanage (1963) FRO (2) 310.
Associated Provincial Picture Houses Ltd., v. Wednesbury Corporation (1946)1 K.B. 223, 229.
Short v. Poole Corporation- 1926 Ch. 66.
in reH(An Infant) 1971 A.C. 682,700.
Secretary of State v. ASLEF (Ho. 2) (1972) 2 ALL ER 949.
Joseph Perera v. Attorney-General (1992) 1 Sri L.R. 199.
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Wijewardena v. Zain S.C. Application 202/87 S.C. Minutes 24 July 1989.
Dissanayake v. Superintendent Mahara Prison (1991) 2 Sri L.R. 247.
Brogan v. UK. ECHR29 November 1988 Ser. A. N. 145 B.
Fox. Campbell 4 Hartley v. U K. UCHR 30 August 1990 Ser. A. No. 182.
Uversidge v. Anderson (1941) 3 ALL ER 338; (1942) A.C. 206.
Ridge v. Baldwin (1963) 2 ALL ER 66, 76; (1964) A.C. 40 at 73.
Janatha Finance and Investments v. D. J. Francis Liyanage (1983) FRD(2) 373.
Sasanasiritissa Thero and Others v. De Silva and Others (1989) 2 Sri L.R. 356.
Weerakoon v. Weeraratne S.C. Application 42/92 S.C. Minutes 16. November1992.
Somasiri v. Jayasena and Others S.C. Application 147/88 S.C. Minutes 1March 1991.
Kishari Mohan v. The State of West Bengal MR 1972 S.C. 1749.
Mariadas v. Attorney-General (1983) FRD (2) 397.
Selvakumar v. Douglas Devananda and Others S.C. Application 150/93 S.C.Minutes 13 July 1994.
Shalini Soni and Others v. The Union of India and Others (1980) 4 SCC 544.
Gunasekera v. De Fonseka (1972) 75 NLR 246.
Wickramabandu v. Cyril Herath (1990) 2 Sri L.R. 348.
Munidasa v. Seneviratne S.C. Application 115/91 S.C. Minutes 3 April 1992.
Kumarasena v. Sriyantha S.C. Application 257/93 S.C. Minutes 23 May 1994.
Christie v. Leachinsky{ 1947) A.C. 573.
Vijaya Kumaranatunga v. G. V. P Samarasinghe and Others (1983) FRD (2)347 (1983) 2 Sri L.R. 63.
Shibban Lai Saksena v. State of U.P. AIR 1954 S.C. 179.
ICCU Devi Choria v. Union of India (1980) 4 SCC 531,539.
Mallawarachchi v. Seneviratne (1992) 1 Sri L.R: 181.
Elasinghev. Wijewickrama and Others (1993) 1 Sri L.R. 163.
Chandra Kalyanie Perera v. Siriwardena (1992) 1 Sri L.R. 251.
Lalanie and Nirmala v. De Silva and Others S.C. Application 53/88 S.C.Minutes 6 April 1990.
Edirisuriya v. Navaratnam (1985) 1 Sri L.R. 100.
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Kumara v. Rohan Fernando and Others S.C. Application 22/90 S.C, Minutes21 July 1994.
Ansalin Fernando v. Sarath Perera and Others (1992) 1 Sri L.R. 411.
Weerakoon v. Mahendra (1991) 2 Sri L.R. 172.
Fernando v. Kapilaratne (1992) 1 Sri L.R. 305.
Joseph Silva and Others v. Balasuriya and Others S.C. Application 112-115/87 S.C. Minutes 26 May 1988.
Gerstein v, Pugh 420 U.S. 103.95 S. ct. 854. 43 L. Ed 2d 54 (1975).
Mohammed Faiz v. Attorney-GeneraI S.C. Application 89/90 Minutes 19November 1993.
Nallanayagam v. Gunatilake (1987) 1 Sri L.R. 293.
APPLICATION for relief for infringement of fundamental rights.
K.N. Choksy, PC. with Desmond Fernando, PC. Kosala Wijetilake, PC. M. D. K.Kulatunga, Hemantha Warnakulasuriya, S. Mahenthiran, Upul Jayasuriya,Lakshman Ranasinghe, Sarath Kongahage, Methsiri Cooray and Ronald Pererafor the petitioner.
C. R. de Silva, P.C. Additional S.G. with Kolitha Dharmawardena. D.S.G.
S.Samaranayake, S.C. and N. Pulle, S C. for the respondents.
Cur. adv. vult.
August 19.1997.
AMERASINGHE. J.
This is a matter concerning the alleged infringement of certainfundamental rights declared and recognized by the Constitution.
Locus standi
The petitioner in this case, Mr. Sunil Kumara Rodrigo, is anAttorney-at-Law appearing on behalf of Mr. Bulathsinghalage SirisenaCooray. Article 126 (2) of the Constitution states, inter alia, that whereany person alleges that any fundamental right relating to such personhas been infringed, he may himself or by an Attorney-at-Law. on hisbehalf apply to the Supreme Court by way of petition praying for reliefor redress in respect of such infringement.
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Reliefs soughtThe petitioner prays that this Court be pleased to:
grant the petitioner leave to proceed with this application;
declare that the fundamental rights of Mr. Cooray guaranteed byArticles 12{1), 12(2), 13(1), 13(2), 14(1) (c) and 14(1) (h) of theConstitution have been violated by the 1st and/or 2ndrespondents;
direct that the said Mr. Cooray be released from custody anddetention;
direct the 1st and/or 2nd respondents to pay damages and/orcompensation to Mr. Cooray in a sum of rupees ten million;
make an interim order pending the hearing and finaldetermination of this application releasing the said Mr. Coorayfrom custody and detention upon such terms and conditions asmay be imposed by Court;
make interim orders pending the hearing and final determinationof this application permitting the said Mr. Cooray to be met by thepetitioner and his lawyers, and examined when necessary by hisDoctors, upon such terms and conditions as may be imposed byCourt;
for costs;
for such other and further relief as to the Court shall seem meet.
Leave to proceedWith regard to the prayer set out in paragraph (a) of the petition, the
Court (Fernando, Dheeraratne, Wadugodapitiya, J.J.) on the 24th of
June 1997, after hearing counsel, granted leave to proceed in
respect of the alleged violations of Articles 12(2), 13(1), 13(2),
14(1) (c) and 14(1) (h) of the Constitution.
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Interim relief for release from custodyWith regard to the prayer set out in paragraph (e) of the petition, onthe 24th of June 1997, after hearing counsel, the Court denied therelief claimed: (S.C. minutes 24.06.97). Fernando, J. (Dheeraratneand Wadugodapitiya, J.J. agreeing) stated:
“To grant prayer (e) would be, in effect, to grant the petitioner thesubstantive relief to which he would be entitled if he ultimatelysucceeds. Although the petitioner has established, prima facie,infringements of the aforesaid Articles, it has not been establishedthat very probably the detention is void and will cause irreparableprejudice, and we do not consider that an interim order in terms ofprayer (e) should be made at this stage: an early hearing wouldsuffice."
Interim relief for legal and medical assistanceWith regard to the prayer set out in paragraph (f) of the petition, onthe 24th of June 1997, after hearing counsel, the Court granted therelief claimed: (S.C. Minutes 24.06.97). Fernando, J. (Dheeraratneand Wadugodapitiya, J.J. agreeing) stated:
"In respect of prayer (f), Mr. Choksy submits that the detainee’slawyers have been denied access to the petitioner up to date; butMr. de Silva states that an order has been made by the 1strespondent on 23.6.97, permitting access to the detainee’slawyers. He submits that the 1st respondent has power, underEmergency Regulation No. 17(4) to allow access to a detainee'slawyers.
Emergency Regulation 17(4) authorizes detention 'in accordancewith instructions issued’ by the Secretary. Even assuming that thiswould extend to allowing him to deny the right of access to adetainees lawyers, in fact no such instructions were either set out inthe Detention Order or issued thereafter. The detainee’s lawyersshould, therefore, not have been refused access to him, particularlyafter this application was filed. Had the detainee been detained inprison, it is common ground that under the Prison Rules, his right ofaccess to lawyers would have been respected. That is the norm; andit is implicit in Emergency Regulation 17(4) that a person should not
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be denied that right simply because he was detained elsewhere.Mr. de Silva referred to the proviso to Emergency Regulation 17(4)which states that the Secretary may direct that any provision of thePrisons Ordinance or the Rules, which would otherwise apply to adetainee, would not apply to him. While the Constitution recognisesthe power to make Emergency Regulations, overriding, amending orsuspending the provisions of any statute, it is doubtful whetherEmergency Regulations can confer on the Secretary any such power.
Mr. De Silva has no objection to the detainee having access todoctors.
The Court accordingly grants an interim order in terms of prayer
. It is the petitioner and the attorneys-at-law (including [the]instructing attorney) who appeared for him today, who will have theright of access."
Articles 12(2), 14(1) (c), and 14(1) (h) not violatedAlthough leave to proceed had been granted for the allegedinfringement of Articles 12(2), 13(1), 13(2), 14(1) (c) and 14(1) (h) ofthe Constitution, matters relating to the violation of the rightsenshrined in Articles 12(2), 14(1) (c) and 14(1) (h) were not pressedby learned counsel for the petitioner.
In the circumstances, I declare that the violation of Articles 12 (2),14(1) (c) and 14(1) (h) of the Constitution has not been established.
The remaining matters for consideration
The remaining matters for consideration by this Court are whetherthe fundamental rights of Mr. Cooray declared and recognized byArticle 13 have been violated, and if so whether any or some or all ofthe reliefs prayed for in paragraphs (c), (d), (g) and (h) should begranted in the exercise of the power of the Court under Article 126(4)of the Constitution "to grant such relief or make such directions as itmay deem just and equitable…".
Article 13(1) of the Constitution
Leave to proceed was granted for the alleged infringement ofArticle 13(1) of the Constitution. Article 13(1) states as follows:
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"No person shall be arrested except according to procedureestablished by law. Any person arrested shall be informed of thereason for his arrest."
There are two rights that are recognized and declared by Article13(1):
A person shall not be arrested except according to procedureestablished by law;
A person arrested must be informed of the reason for his or herarrest.
In applying the law to the facts of the matter before me, I havetherefore to consider two matters in relation to the alleged violation ofArticle 13(1):
Was Mr. Cooray arrested according to procedure established bylaw?
Was Mr. Cooray informed of the reason for his arrest?
Was Mr. B. Sirisena Cooray arrested according to procedureestablished by law?The Detention Order was ex facie defective on the question of theduration of detention:
It is not in dispute that Mr. B. Sirisena Cooray was arrested byPolice Officers on the 16th of June 1997 acting on an order of theSecretary, Ministry of Defence, dated the 16th of June 1997. In hisorder dated the 16th of June 1997, the Secretary states that he wasacting by virtue of the powers vested in him by paragraph 17(1) ofthe Emergency (Miscellaneous provisions and Powers) RegulationsNo. 4 of 1994 published in Gazette Extraordinary No. 843/12 of the4th of November 1994.
Regulation 17(1) states:
“Where the Secretary is satisfied upon the material submitted tohim, or upon such further additional material as may be called forby him with respect to any person, that with a view to preventingsuch person
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from acting in any manner prejudicial to the national securityor to the maintenance of public order…
…
…
It is necessary so to do, the Secretary may make order thatsuch person be taken into custody and detained in custody for aperiod not exceeding three months…”
The emphasis is mine.
Regulation 17{1) authorizes the Secretary to make an order for aperiod. The Order in this case dated 16 June 1997 does not specifythe period of detention. The order is therefore not in accordance withthe procedure prescribed by law for the arrest and detentionof persons on the orders of the Secretary. Article 13(1) ofthe Constitution states that "No person shall be arrestedexcept according to procedure established by law". The arrest anddetention of Mr. Cooray on the 16th of June was thereforeunconstitutional.
In paragraph 9 of his affidavit, the Secretary states as follows:
"… In view of the seriousness of the material contained in theintelligence reports, it was my intention to detain the detenu initiallyfor a period of three months commencing 16 June 1997.Subsequently, I have by way of an amendment to the saidDetention Order P1, made Order stating that the Order marked PIreferred to above would be effective for a period of three monthscommencing 16th June 1997. I produce a certified copy of theamending Order and an affidavit from ; Abeyweera who served thesaid Detention Order on the detenu marked 1R 2(a).”
Mr. Abeyweera states in his affidavit that he served the amendedorder on Mr. B. Sirisena Cooray and that Mr. Cooray accepted thatorder.
The amending order is dated 2nd July 1997. In it the Secretarystates that he amends the order dated 16 June 1997 “by stating thatthe said order is effective from 16th June 1997 for a period of three
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months. This amendment is to be considered as forming part andparcel of the said order dated 16 June 1997."
In my view, the effect of the amendment is merely to specify theperiod of detention, as required by law. That was done belatedly onthe 2nd of July 1997. By stating that the amending order was to beregarded as “forming part and parcel" of the order, the defect in theorder of the 16th of June does not stand remedied. Therefore thedetention from the 16th of June to the 2nd of July 1997 wasunconstitutional. I hold, however, that the Detention Order was exfacie valid from the 2nd of July 1997 on the question of duration.
The basis of the Secretary’s decision required by Regulation17(1).Regulation 17(1) requires the Secretary to arrive at his decision toorder the detention of a person 'upon the material submitted to him orupon such additional material as may be called for by him’. What was
the unsolicited material submitted to the Secretary or
additional material called for by him that satisfied him that theorder of detention was necessary?
The unsolicited material submitted to the SecretaryInitially, there were three unsolicited reports submitted to theSecretary. The first was from the Inspector-General of Police (thesecond respondent); the second was from the Director of theNational Intelligence Bureau; the third was from the Deputy Inspector-General of Police, Criminal Investigation Department.
The first reportWith regard to the first report, the Secretary, in his affidavit, statesas follows;
"… on 9.6.97 I received information in writing from the 2nd
Respondent that certain persons who had been arrested in
connection with a spate of armed robberies in the Gampaha police
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area had in the course of interrogation stated that members of agroup involved in the commission of dangerous criminal acts ledby Arambaiage Don Ranjit Upali alias Soththi Upali (presently inremand) had been making inquiries about the visit of HerExcellency the President to Nithambuwa (Sic.), Horagolla andAttanagalla. I was also informed that Soththi Upali was a closeassociate of [Mr. Cooray]. The 2nd Respondent also informed methat his intelligence unit had received reliable intelligence that thedetenu has had discussions with certain members of the saidgroup about assassinating or causing physical harm to HerExcellency the President and to create unrest in the country."
About which visit of the President were the inquiries being made?From whom had such inquiries been made? If the statements weremade – they have not been produced before this Court – what sort ofcredibility should be attached to statements made by a gang ofrobbers? How could Soththi Upali who had been in prison custody forover a year be leading the group alleged to have been “involved inthe commission of dangerous criminal acts”? The Inspector-Generalof Police had informed the Secretary that Soththi Upali was a closeassociate of Mr. Cooray and that Mr. Cooray had had discussionswith certain members of Soththi Upali's group about assassinating orcausing physical harm to the President and creating unrest in thecountry. What was the evidence? What steps were taken to check theaccuracy of the information?
On the other hand, in his affidavit dated the 15th of July 1997,Mr. Cooray has categorically denied that he had any connectionwhatever with any members of the so called Soththi Upali group. Healso states that the averment that he was a close associate of SoththiUpali is “false and made without any basis". He explains that hebecame acquainted with Soththi Upali as one of several workers sentto him by the late President R. Premadasa to assist him as CampaignManager in connection with the Presidential and Parliamentaryelections of 1988 and 1989. However, he states: “I have had nodealings with Soththi Upali and have not met or spoken to him since Iceased to be the General Secretary of the United National Party in1994.” The respondents have not challenged Mr. Cooray’s avermentseither by way of affidavit or through the submissions of their counsel.
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The second reportWith regard to the second report, the Secretary, in his affidavit,states as follows:
"… the Director of National Intelligence Bureau by report dated11th June 1997 informed me that he had reliable intelligence that[Mr. Cooray] and three persons viz. U. L. Seneviratne, WathudulaBandulage Somaratne alias Malwatte Some, Janaka PriyankaraJayamanne alias Sudu Mahatmaya and some other unidentifiedpersons have had discussions about assassinating or causingphysical harm to Her Excellency the President in the near future…"
The Secretary filed a copy of a letter dated the 3rd of July 1997sent by him to the Chairman of the Advisory Committee appointedunder Regulation 17(5) to enable the Chairman to communicate the“reasons" for the arrest and detention: (Paragraph 11 of theSecretary’s affidavit). In that letter, the Secretary states that he hadissued Detention Orders on Mr. B. Sirisena Cooray, Mr. U. L.Seneviratne, Mr. W. B. Somaratne and Mr. J. P. Jayamanne. TheSecretary states as follows: "These Detention Orders have beenissued by me after being satisfied on the material submitted to me bythe D.I.G., C.I.D. to the effect that Mr. Sirisena Cooray has sought theassistance of certain persons to cause harm or to assassinate HerExcellency the President. Some of the persons allegedly identifiedare Upali de Silva, U. L. Seneviratne, W. B. Somaratne and J. P.Jayamanne. Further it is reported that some persons have beenenlisted as Reserve Police Officers and given training insophisticated weapons. Whereabouts of some such persons trainedin weapon use are not traceable today. Any conspiracy to cause actsin furtherance of such a purpose was considered a serious threat tonational security."
In his affidavit, Mr. Cooray emphatically denies that he had "anydiscussions with any person whomsoever about assassinating orcausing harm to Her Excellency the President. The said allegation isutterly and completely false." What steps had the Director of theNational Intelligence Bureau taken to check the correctness of theinformation? What, was the basts for regarding the information as“reliable"? What is the connection between the Soththi Upali group
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and the persons mentioned in the second report? After all, theconspiracy was supposed to be between Mr. Cooray and a gang ofcriminals led by Soththi Upali who ‘directly or indirectly’ had acquiredproperties close to the ancestral home of Her Excellency thePresident to harm or assassinate Her Excellency. The other personwho were supposed to have participated in discussions withMr. Cooray were said to be “unidentified”, and so they could not besaid to belong to the Soththi Upali group. Mr. Cooray states in hisaffidavit that he was questioned about his connections with thepersons mentioned in the Director’s report after his arrest. He states:“I was questioned about a visit made to me at my residence after myreturn by U. L. Seneviratne, member of the Western ProvincialCouncil and ex M.M.C., and what we had discussed. I stated that thesaid U. L. Seneviratne called on me once complaining bitterly abouthis arrest and detention for a long period which he said was unlawful.
I was questioned whether I knew Sudu Mahattaya, to which Ianswered in the negative. Subsequently on 8th July I was askedwhether I knew Malwatte Some. I answered I did not know him byname but if I am shown him it may be that I had met him casually."The respondents have not challenged Mr. Cooray's averments eitherby way of affidavit or through the submissions of their counsel.
The third report
With regard to the third report, the Secretary, in his affidavit, statesas follows:
“I state that T. V. Sumanasekera Deputy Inspector-General ofPolice, Criminal Investigation Department by a report dated14.6.97 addressed to me informed me that he had receivedreliable intelligence that [Mr. Cooray] had sought assistance ofcertain members of a group involved in the commission ofdangerous criminal acts to cause harm to or assassinate HerExcellency the President."
Which group was this? Was it Soththi Upali’s group? If so why wasit not named?
The Secretary’s request for further Information
The Secretary states in his affidavit that, by his letter dated the14th of June 1997, he "sought further clarifications from the Deputy
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Inspector-General of Police, Criminal Investigation Department oncertain matters referred to in his report. I annex hereto marked 1R1the said letter dated 14.6.97." 1R1 states as follows:
“I refer to your letter dated 14th June on the above subject.
Please identify the manner in which the persons mentioned in yourreport would be a threat to National Security."
Learned counsel for the petitioner submitted that this letter waswritten because the material furnished did not satisfy the Secretarythat there were grounds for arresting Mr. Cooray. Learned Counsel forthe respondents stated that Mr. Cooray had been a Mayor ofColombo and a former Cabinet Minister. Therefore the Secretary wasacting cautiously, and wrote 1R1.1 shall refer to this letter again, but Ishould like to dispose of one matter immediately. The Secretary, inexercising his powers of arrest, should always act cautiously, for theliberty of one citizen is no less important than that of any other,whatever his station in life was, is, or expected to be.
The response to the letter of the SecretaryWith regard to the response he received, the Secretary, in hisaffidavit, states as follows:
“[The] Deputy Inspector-General of Police, Criminal InvestigationDepartment by way of further report dated 16.6.97 confirming hisearlier intelligence report about [Mr. Cooray] … brought to my noticethat the said Soththi Upali had either directly or through members ofhis group purchased lands in close proximity to the HoragollaWalauwa, the ancestral residence of Her Excellency the Presidentand that two houses had already been constructed and another ispresently under construction in these lands. He also informed me thathis intelligence revealed that the said properties were acquired aspart of a[n] elaborate conspiracy to cause physical harm to HerExcellency the President."
The secretary in his affidavit adds as follows:
"… the investigations conducted by the Criminal Investigation
Department has now confirmed the correctness of the intelligence
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regarding the acquisition and construction of houses in the saidfand (sic.) referred to above. Deputy Inspector-Genera! of Police,Criminal Investigation Department in the said report among otherdetails also brought to my notice that he received reliableintelligence that [Mr. Cooray] was planning to commit various actsof violence with the view of discrediting the Government and in thisconnection he has sought the assistance of some retired servicepersonnel."
The author of the third report and the report of the 16th of June1997, Mr. T. V. Sumanasekera, Deputy Inspector-General of Police,Criminal Investigation Department, in his affidavit dated the 8th ofJuly 1997, states that the Inspector-General of Police, the author ofthe first report, had informed him, of the matters set out in the firstreport; and that in response to the directions given to him by theInspector-General of Police, he instructed Inspector of Police JagathFonseka, the Officer in Charge of the Central Intelligence Unit of theCriminal Investigation Department to inquire into the matter. He statesthat he also directed his intelligence unit “to gather intelligence aboutthe involvement of [Mr. Cooray] regarding a conspiracy toassassinate or cause physical harm to Her Excellency the President.”Mr. Sumanasekera goes on to state as follows:
“7. I state that my intelligence sources revealed that certainmembers of the group involved in the commission of dangerouscriminal offences headed [by] … Soththi Upali (presently in remand)has had discussions with [Mr. Cooray] about assassinating orcausing physical harm to Her Excellency the President … Myinquiries also revealed that the said Soththi Upali had either directlyor through his relatives purchased properties in close proximity of theHoragolla Walauwa, the ancestral residence of Her Excellency thePresident. I annex hereto marked A2 the inquiry notes conducted bythe intelligence regarding the purchase of the land referred to abovein close proximity to the ancestral residence of Her Excellency thePresident. It has now transpired that these properties are situatedwithin 1 km. from the ancestral residence of Her Excellency thePresident. I produce marked A3, A4 and A5 respectively the reportsforwarded to me by Inspector of Police Jagath Fonseka, Officer inCharge of the Intelligence Unit and an affidavit from the said JagathFonseka under confidential cover for perusal of Your Lordships Court.
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I state that on the intelligence and the information gathered byme l submitted a report dated 14.6.97 to [the Secretary] and inresponse to certain queries made by him I also submitted anotherreport dated 16.6.97. I am advised that the said reports are beingproduced by [the Secretary] under confidential cover for yourLordships' perusal.
I state that according to the intelligence I have raceived …Soththi Upali has masterminded and overseen a large number ofmurders, robberies and disappearances of persons carried outthrough a group of criminals led by him.
I state that my intelligence sources also revealed that UswattaLiyanage Seneviratne, Wathudula Bandulage Somaratne aliasMalwatte Some and Janaka Priyankara Jayamanne alias SuduMahattaya were also identified as being persons concerned in thesaid conspiracy.”
As we have seen, Mr. Cooray has, in his affidavit, (1) dealt with thequestion of his alleged connections or discussions with the personsnamed by Mr. Sumanasekera as “persons concerned in thesaid conspiracy"; and (2) denied having had discussions with anyperson with a view to assassinating or causing harm to HerExcellency the President. As I have observed, Mr. Cooray’saverments with regard to those matters have not been challenged inthese proceedings.
Although Mr. Sumanasekera in his affidavit states that thediscussions about the plot to harm or assassinate the President wereheld with “certain members" of a group of criminals "headed … bySoththi Upali", as I have observed, according to the Secretary, thereis no reference in his report dated the 14th of June 1997 to eitherSoththi Upali or his group. Nor, according to the Secretary, does hestate in that report that the persons named as having haddiscussions with Mr. Cooray were members of Soththi Upali’s group.In his affidavit Mr. Sumanasekera states that the persons named byhim “were also identified as being persons concerned in the saidconspiracy", but he refrains from stating that they were members ofSoththi Upali's group.
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Nor, according to the Secretary, is there a reference inMr. Sumanasekera’s report dated the 14th of June 1997 to thequestion of the acquisition of properties anywhere. However, as wehave seen, the Secretary in his affidavit states that Mr. Sumanasekerahad in his report dated the 16th of June 1997 referred to theacquisition of properties by Soththi Upali “either directly or throughmembers of his group", “in close proximity to Norogolla Walauwa, theancestral residence of Her Excellency the President… acquired as apart of an elaborate conspiracy to cause physical harm to HerExcellency the President."
Sketch plans and investigation reports of police officers deployedby Mr. Jagath Fernando, Inspector of Police, on the instructions ofMr. Sumanasekera, have been filed for the confidential perusal of theCourt. There is nothing in the material furnished to show that SoththiUpali 'either directly or through members of his group" purchasedlands in close proximity to the ancestral residence of the President. Inany event, if the lands were purchased, as the Secretary states hewas told by Mr. Sumanasekera, “as a part of an elaborateconspiracy", it would have been of crucial importance to state whenthe lands were acquired – a matter that could easily have beenascertained by asking the owners of the properties or by visiting theLand Registry. Mr. Cooray states in his affidavit that (after his arrest)he was questioned by the Police as to whether in his capacity asMinister of Housing and Construction he allotted any land to SoththiUpali in Horogolla. He had replied that he had no recollection ofhaving done so. That again is a matter that could have been easilyascertained by asking the Government authority concerned. In anyevent, if a land had in fact been so allocated, how could that everhave been evidence of a conspiracy to assassinate Her Excellencythe President? When Mr. Cooray was the Minister, Her Excellency thePresident had not yet been elected to office. The conspiracy,according to the Secretary, was not to harm or assassinateMrs. Kumaratunga at the time when Mr. Cooray was a Minister: theconspiracy was to assassinate Her Excellency the President.
The Deputy Inspector-General, Mr. Sumanasekera. in his affidavitstates as follows: “My inquiries also revealed that certain personswho had been enlisted to the Reserve Police Force at the instance of[Mr. Cooray] when he was a Cabinet Minister in the previous
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government had been given intensive training by the Special TaskForce (STF). I also received intelligence that some of the personswho were so recruited had deserted their posts and their presentwhereabouts are unknown."
Mr. Cooray in his affidavit states as follows: "… during the period1989 to 1991, there was severe threat to Cabinet Ministers and otherpersons holding public office from the J.V.P. movement which was atits height. Accordingly, security officers attached to my security, and Ibelieve also to the security of other high ranking personnel, wereenlisted into the Reserve Police Force and trained by the SpecialTask Force in order to provide adequate security. I state that out ofthe eight security personnel recruited to the Reserve Police, four havereverted to their substantive posts in the Colombo Municipal SecurityService, and four have retired …"
The respondents have not challenged Mr. Cooray’s avermentseither by way of affidavit or through the submissions of their counsel.And so there was, after all, nothing very alarming or mysterious aboutthe former security staff of Mr. Cooray. What was the relevance of theaverments made by the Deputy Inspector-General to the conspiracytheory?
The Secretary stated in his affidavit that the Deputy Inspector-General of Police had in his report dated the 16th of June 1997brought it to his notice that he received reliable intelligence that "thedetenu was planning to commit various acts of violence with a view ofdiscrediting the Government and in this connection he has soughtthe assistance of some retired service personnel." The allegationrelates to acts aimed at discrediting the government and not aconspiracy to assassinate or harm the President. The Secretarystates that he "formed the opinion" that it was necessary to detainMr. Cooray “having considered the matters referred to above and thematerial contained in the reports referred to above pertaining to aconspiracy to assassinate or cause harm to Her Excellency thePresident and its grave Implications for National Security andPublic Order." We are concerned in these proceedings with thegrounds upon which the Secretary ordered the arrest and detentionof Mr. Cooray; and those grounds, according to the Secretary, related
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to a conspiracy to assassinate or harm the President. In any event,Mr. Cooray denies the allegation that he was planning to commit anyacts of violence to discredit the government. The respondents haveadduced no evidence or offered any submissions through theircounsel on that matter.
Information supplied for confidential perusal by the CourtIn addition to the facts and information referred to in his affidavit,the Secretary also placed the following documents before the Courtfor confidential perusal:
The report of the Inspector-General of Police dated 9 June1997;
The report of the Director of the National Intelligence Bureaudated 11 June 1997;
The report of the Deputy Inspector-General of Police, CriminalInvestigation Department dated 14 June 1997
The report of the Deputy Inspector-General of Police, CriminalInvestigation Department dated 16 June 1997.
The Secretary expressly states in his affidavit, that he was'satisfied' on the basis of material contained in those reports.
Those reports do not materially add anything to the narration oftheir contents in the affidavit of the Secretary.
Was the Secretary “satisfied”?Mr. Cooray was arrested and detained upon an order issued bythe Secretary under the powers conferred on the Secretary byregulation 17(1). The opening words of the regulation state that suchan order may be issued “where the Secretary is satisfied." TheSecretary has declared in his affidavit that he was “satisfied andformed the opinion that it was necessary to detain… B. SirisenaCooray to prevent him from acting in any manner prejudicial to thenational security and the maintenance of public order." The regulationis framed in a subjective form. However, his own declaration is not
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conclusive, for the decision does not relate merely to “a matter ofpure judgment” per Lord Wilberforce in Secretary of State forEducation and Science v. Tameside Borough Councilor to a matterwhere he had to be satisfied on “a matter of pure opinion". (Per LordDenning in Tameside at 1025 C.A.). The opening words of regulation17(1) “Where the Secretary is satisfied" do not, in my view, confer anabsolute discretion on the Secretary; they serve “as a conditionlimiting the exercise of an otherwise arbitrary power: If the questionwhether the condition has been satisfied is to be conclusivelydecided by the man who wields the power, the value of the intendedrestraint is in effect nothing.": per Lord Radcliff in Nakkuda Ali vM.F.de S. Jayaratne,2>. The words do not mean “Where the Secretarythinks"; nor do they mean "Where the Secretary believes". They meanthat the Secretary was satisfied on reasonable grounds which werecapable of supporting the Secretary’s decision; and (2) the Secretaryshould not have misdirected himself on the law in arriving at hisdecision: Secretary of State for Education and Science v.Metropolitan Borough of Tameside (Supra): Attorney-General ofSt Christopher, Nevis and Anguilla v. Reynolds.13'
The Secretary had to be satisfied that it was necessary to detainMr. Cooray to prevent him from acting in a manner prejudicial tonational security and public order by causing harm to orassassinating Her Excellency the President. It is open to Mr. Coorayto show that the Secretary was not legally entitled to be satisfied. Aperson is legally entitled to be “satisfied" if he is “reasonably"satisfied: Director of Public Prosecutions v. Head.w
As Wade (p. 401) points out: “Taken by itself, the standard ofunreasonableness is nominally pitched very high: 'so absurd that nosensible person could ever dream that it lay within the powers of theauthority' (Lord Greene MR); 'so wrong that no reasonable personcould sensibly take that view’ (Lord Denning); 'so outrageous in itsdefiance of logic or of accepted moral standards that no sensibleperson who had applied his mind to the question to be decidedcould have arrived at it’ (Lord Diplock), “Our task is not to findwhether the Secretary had taken leave of his senses, but whether hewas “reasonably satisfied".
In doing so, we must have regard to the scheme and purpose ofthe relevant regulations made under the law for the time being
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relating to public security – the Emergency (Miscellaneous Provisionsand Powers) Regulations No. 4 of 1994 in this case; the applicableprovisions of the general law of the land, including those contained inthe Code of Criminal Procedure; and the “Supreme Law" – theConstitution. We should remind ourselves that Article 13(5) of theConstitution declares and recognizes that “Every person shall bepresumed innocent until he is proved guilty". We should also bear inmind that “The principle of personal freedom that every man shouldbe presumed innocent until he is found guilty applies also to thepolice function of arrest.., For that reason it is of importance that noone should be arrested by the police except on grounds which theparticular circumstances of the arrest really justified the entertainmentof a reasonable suspicion,”: per Scott LJ in Dumbell v. Roberts,®followed in Muttusamy v. Kannangaram per Gratiaen J; Faiz v.Attorney-Generalm per Perera J; and in Faurdeen v. Jayetiileke andothers® per Perera, J; Channa Pieris v. Attorney-General.®
A person is “reasonably satisfied" if his decision is reasonable, “orcan be supported with good reasons, or at any rate be a decisionwhich a reasonable person might reasonably reach": per DenningMR in Tameside cited with approval in Siriwardene v. Liyanagem. “Ifa judgment requires, before it can be made, the existence of somefacts, then, although the evaluation of those facts is for theSecretary… alone, the court must inquire whether those facts exist,and have been taken into account, whether the judgment has beenmade upon a proper self-direction as to those facts, whether thejudgment has not been made upon other facts which ought not tohave been taken into account": per Lord Wilberforce in Tameside at1047 followed in Siriwardene at 328-329.
In Associated Provincial Picture Houses Ltd. v. WednesburyCorporation,l" at 229 Lord Green MR said:
“It is true that discretion must be exercised reasonably. Now whatdoes that mean? Lawyers familiar with the phraseology used inrelation to the use of statutory discretions often use the word“unreasonable” in a rather comprehensive sense. It has frequentlybeen used as a general description of the things that must be done.For instance, a person entrusted with a discretion must, so to speak,direct himself properly in law, He must call his own attention to the
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matters which he is bound to consider. He must exclude from hisconsideration matters which are irrelevant to the matters to what hehas to consider. If he does not obey those rules, he may truly be said,and often is said, to be acting “unreasonably", Similarly, there may besomething so absurd that no sensible person could dream that it laywithin the powers of the authority. Warringtom LJ in Short v. PooleCorporation1'2' gave the example of the red-haired teacher, dismissedbecause she had red hair. This is unreasonable in one sense. Inanother it is taking into consideration extraneous matters. It is sounreasonable that it might almost be described as being done in badfaith; and, in fact, all these things run into one another.” Commentingon Lord Greene’s famous passage, Wade (7th Ed. 400-401) states asfollows: “It explains how “unreasonableness”, in its classicformulation, covers a multitude of sins… Unreasonableness has thusbecome a generalized rubric covering not only sheer absurdity orcaprice, but merging into illegitimate motives and purposes, a widecategory of errors commonly described as ‘irrelevant considerations',and mistakes and misunderstandings which can be classed as self-misdirection, or addressing oneself to the wrong question…”
On the other hand, the Court will not usurp the discretion of theSecretary and substitute its own views for that of the Secretary.Indeed, as Lord Hailsham observed: “Two reasonable persons canperfectly reasonably come to opposite conclusions on the same setof facts without forfeiting their title to be regarded as reasonable…Not every reasonable exercise of judgment is right, and not everymistaken exercise of judgment is unreasonable. There is a band ofdecisions with which no Court should seek to replace the individual’sjudgment with its own.": In re H (An lnfant)m. When the Secretary“honestly takes a view of the facts or the law which could reasonablybe entertained then his decision is not to be set aside simplybecause thereafter someone thinks that his view is wrong. After allthis is an emergency procedure. It has to be set in motion quickly,when there is no time for minute analysis of facts or law. The wholeprocess would be made of no effect if the (Secretary's) decision wasafterwards to be conned over word by word, letter by letter, to see ifhe has misdirected himself. That cannot be right …”: per LordDenning in Secretary of State v. ASLEFiu). The prevailing situation inthe country will obviously be a matter that the Court will not ignore:
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Cf. per Wanasundera, J. in Joseph Perera v. Attorney-General"5>; perKulatunga, J. in Wijewardena v. Zain"b' Dissanayake v.Superintendent Mahara Prison(,7). The Court also appreciates thedifficulties inherent in the investigation and prosecution of certainoffences, such as terrorist crimes or conspiracies to assassinatepolitical leaders, and the need for acting quickly where nationalsecurity or public order is involved. Yet, the exigencies of dealingwith such crimes cannot justify switching the notion ofreasonableness to the point where the essence of the safeguardsecured by Article 13 (1) of the Constitution may be abrogated: Cf.Brogan v. U. K. ECHRm, Fox Campbell & Hartley v. U K. EuropeanCourt of Human Rights™.
The question for determination is whether, on the material beforehim, the Secretary was “satisfied" that Mr. Cooray should be arrestedand detained. As we have seen, there were many mistakes andmisunderstandings based on misleading advice as a result of whichhe misdirected himself. Moreover, the grounds on which he wassupposed to have formed his judgment did not exist: What was theevidence that Soththi Upali was a ‘close associate’ of Mr. Cooray -that the members of Soththi Upali's gang held discussions withMr. Cooray about assassinating the President – that Soththi Upali had‘directly or indirectly’ purchased lands in close proximity to theancestral home of the President as a part of “an elaborateconspiracy” to harm or assassinate the President? The police hadtheir suspicions and hoped that some evidence might turn up tomake their suspicions reasonable. However, vague, generalsuspicions and the fervent hope or even confident assumption thatsomething might eventually turn up to provide a reasonable groundfor an arrest will not do: Channa Pieris (Supra) at p.51.1 hold that theSecretary was not legally entitled to be satisfied.
Other factors motivating the SecretaryThe material in the reports (as conveyed to us through theSecretary’s affidavit), as we have seen, did not provide grounds forthe arrest. Why, then did the Secretary come to form his opinion that itwas necessary to arrest and detain Mr. Cooray? The Secretary in hisaffidavit states as follows:
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"… the Criminal Investigation Department, the National IntelligenceBureau and the 2nd Respondent had on several occasionsforwarded intelligence reports regarding matters affecting thesecurity of the State and Public Order. I also state that most of theintelligence set out in these reports have been subsequently found tobe accurate.
… I had no reason to doubt the reliability of the intelligence reportssubmitted to me regarding the matter in question.
… in the recent past there had been a number of political leadersincluding Heads of State who had been assassinated. Investigationshave revealed that these offences had been committed in pursuanceof carefully planned conspiracies.
… I state that having considered the matters set out above and thematerial contained in the reports referred to above pertaining to aconspiracy to assassinate or cause physical harm to Her Excellencythe President and its grave implications for National Security andPublic Order I was satisfied and formed the opinion that it wasnecessary to detain the said B. Sirisena Cooray to prevent him fromacting in any manner prejudicial to the National Security and themaintenance of Public Order. In the circumstances. I made (the)Order which has been produced marked P1…”
Self-misdirectionLearned counsel for the respondents submitted that the Secretaryacted upon material placed before him by senior responsible officersand therefore believed in good faith that he had reasonable cause tobelieve that Mr. Cooray was involved in a conspiracy. In Liversidge v.Andersonm, the majority of the House of Lords decided that thewords "if the Secretary of State has reasonable cause to believe"meant "if the Secretary of State thinks that he has reasonable causeto believe” provided he acts in good faith. However, Lord Atkin, in hiscelebrated dissenting speech, held that the words "If the Secretary ofState has reasonable cause to believe” meant what they said, namelythat they gave only a conditional authority to the Secretary to detainany person without trial, the condition being that he had reasonablecause for the belief which leads to the detention order. The decision
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of the majority in Liversidge supports the submission of learnedcounsel for the respondents, but as Lord Reid dissmissivelyobserved in Ridge v. Baldwin12" at 73, it was a “very peculiardecision" and is not regarded with favour. However, although LordScarman said in the same case that the ghost of the decision inLiversidge need no longer haunt the law, it seems to have now madeanother appearance, And perhaps in the hope that this Court wouldnot exorcise that evil spirit, Mr. De Silva, whose arguments were allmost vigorously but fairly and ably presented, cited the decision ofthe Supreme Court in Janatha Finance and Investments v. D.J.Francis Douglas Liyanage and Others121'.
In that case, the Competent Authority appointed under theEmergency (Miscellaneous Provisions and Powers) Regulations No. 3of 1982 made an order under regulation 14(7) thereof sealing thepetitioner’s printing press. The petitioner alleged that the order wasnull and void as it constituted an infringement of Articles 12(1) and12(2) of the Constitution which declare and recognize the right toequality. Ranasinghe, J. (as he then was), (Sharvananda, J. – as hethen was – and Victor Perera, J. agreeing) at p. 396 said:
“The question that arises is whether the material so available to the1st respondent could be said to have been sufficient to justify the 1strespondent's action in making the Order P2? Was it reasonable forthe 1st respondent to have decided to do what he did upon suchmaterial? It has to be remembered that the material placed before the1st respondent was so placed before him by senior responsibleofficers, officers whose sense of responsibility and bona tides the 1strespondent would have had no reason to doubt. The 1st respondentcould not himself have personally undertaken an investigation. Timewas a decisive factor. If meaningful action was to be taken, it had tobe speedy enough to prevent the mischief apprehended. Against thisbackground is it possible to say that the 1st respondent was wrong indoing what he did …? It may be that another might have waited formore material before proceeding to act, The question, however, iswhether the decision of the 1st respondent to act in the way he didwas such that no reasonable person would have done what he did?Was his decision to act so very unreasonable? Was his exercise ofhis judgment so hopelessly indefensible? Has the exercise of thediscretion vested in him been wholly unreasonable and capricious? I
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think not. May be another would not have done what the 1strespondent did; but the 1st respondent cannot be said to have donewhat no reasonable person would have ever done in suchcircumstances. The good faith of the 1st respondent, thoughattacked on the grounds of political vengeance, improper motives,failure to exercise his discretion, acting on the dictation of thePresident, and partiality has not been shaken.
In this view of the matter, I am of opinion that the Order P2 (andalso P1) is valid …”
In my view, a decision of the Secretary, does not becomereasonable merely because the source of his information are thereports of senior police officers. It is evident from the affidavit of theSecretary that he was aware that those officers themselves had notpersonally gone into the matter, despite the extraordinarilyseriousness of the matter, but were merely reporting that there wasinformation from “reliable sources”. The facts established in theseproceedings, which were easily ascertainable before or soon afterthe arrest, show how unreliable they were. Are the so-calledinformants of the “intelligence" services solely sneaks concerned withfurtively providing fault-finding information? Are there no policeofficers or informants who are independent and straightforward whomight provide other information? How is it that in this case a greatdeal of material that might have been quite easily found out escapedthe notice of the “intelligence" arm of the police? Is the “intelligence”service concerned with fact-finding or fault-finding? Be that as it may,the question in issue is not whether the Secretary’s decision wasbased on information furnished by senior police officers; nor is itwhether his decision was “hopelessly indefensible” or “whollyunreasonable and capricious” or simply wrong: What has to bedecided by us is not whether the Secretary thought or sincerelybelieved that Mr. Cooray was conspiring to harm or assassinate thePresident, but that he was personally satisfied on reasonablegrounds based upon the three initial reports submitted to him and theadditional report submitted to him, that it was necessary to arrest anddetain Mr. Cooray to prevent him from assassinating or causing harmto Her Excellency the President and thereby acting in a mannerprejudicial to national security and/or public order.
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Learned counsel for the respondents, Mr. De Silva, referred to thereasons given in the affidavit of the Secretary and submitted that inthe light of the material contained in the reports, the Secretary wasnot only justified in issuing the Detention Order, but that he wouldhave been guilty of a dereliction of duty had he refrained from doingso. On the other hand, learned counsel for the petitioner, Mr. Choksy,submitted that the material placed before the Secretary did notconvince, and at any rate could not have reasonably persuaded, theSecretary to be satisfied that it was necessary to detain Mr. Coorayand that in the circumstances, the Secretary was not actingaccording to the procedure prescribed by Regulation 17(1) and wastherefore acting in violation of Article 13(1) of the Constitution whichstates that no person shall be arrested except according toprocedure established by law.
I agree that the Secretary was not obliged to carry out theinvestigations himself: But he had to satisfy himself, not merely on thematerial submitted to him but also upon “such further additionalmaterial as may be called for by him": (Regulation 17(1). He had thepower to call for, and the duty to consider additional material. He wasobliged to make his decision upon a proper self-direction of the factsupon which his judgment was based. He was obliged to call his ownattention to the matters he was bound to consider. He failed to do so.It is of significance that whereas regulation 17(1) of the 1989regulations states that “Where the Secretary to the Ministry ofDefence is of opinion …". the corresponding current (1994)regulation states that ‘Where the Secretary is satisfied upon thematerial submitted to him, or upon such further material as may becalled for by him Admittedly, there was nothing to prevent theSecretary calling for and considering additional material under theearlier regulation. However, the 1994 regulation specifically draws theattention of the Secretary to what he might do. The possibility thatthere might be two sides to the story did not prompt the Secretary todirect that Mr. Cooray's version be ascertained either from"intelligence” sources or from Mr. Cooray himself.
The Secretary in his affidavit admits that Mr. Cooray was neitherquestioned nor was his statement recorded prior to his arrest, but headds that Mr. Cooray's statement was recorded after the Detention
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Order had been issued. Mr. Cooray was arrested on the 16th of June1997 and he was interrogated and his statements recorded on the17th, 18th, 19th, 20th, 23rd and 24th June and on the 8th and 11th ofJuly. He had been abroad from the 24th of June 1996 and returned toSri Lanka on the 28th of April 1997. He was questioned about hisfamily and his activities and movements after his return. However,although he was arrested and detained because he was supposed tohave been involved in a conspiracy to assassinate the President, noquestions were put to him with regard to that matter until Mr. Coorayhimself had raised the matter with the officers interrogating him onthe 23rd of June 1997.
He had read an article (produced and marked in theseproceedings as document P3) appearing on the front page (andcontinued on page 5) of the Sunday Times of the 22nd of June undera banner headline stretching across the page “Plot against thePresident” in which the first four paragraphs state as follows:
"The detention of former UNP strongman Sirisena Cooray – in theheadlines for the past six days with widespread conjecture andspeculation – took a sensational turn last night when state televisionand radio announced that he was being grilled regarding an allegedplot to kill President Kumaratunga.
Soon after the bombshell announcement, CIO chief T.V.Sumanasekera told The Sunday Times last night that they hadreceived some information regarding an alleged plot against thePresident and every aspect was being probed.
“There is a little bit of evidence and we are continuinginvestigations on this line," he said.
The state run media last night said Mr. Cooray had been arrestedfollowing information about a plot to assassinate the President, butMr. Sumanasekera declined to confirm the state media reports."
The report goes on to speculate as to other reasons whyMr. Cooray was arrested. It may or may not explain why the matter ofthe alleged conspiracy was not pursued. I make no comment on thatmatter.
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Mr. Cooray had also read an article (produced and marked inthese proceedings as document P3 (a)) appearing on the front pageof the Daily News of the 23rd of June under a banner headlinestretching across the page "Plot will be disclosed soon" in which itwas stated as follows:
“The details of the alleged plot to harm President ChandrikaBandaranaike Kumaratunga, uncovered recently, will be disclosed inthe next few days," CID sources said yesterday.
The evidence pertaining to this plot uncovered during CIDinvestigations into the activities of former UNP Minister B. SirisenaCooray are now being put together, these sources added.
Following the discovery of this plot, the CiD also arrested anothersuspect who is considered an expert marksman over the weekend.The CID said the suspect was able to fire on target using two pistolssimultaneously.
CID sources said evidence showed that attempts had been madeto hire underworld criminals to execute this plot.
Two other suspects said to be notorious underworld charactershave also been taken into custody in this connection and the CIDwas looking out for firearms which had been in their possession.
CID sources said they were able to elicit more evidence from thesetwo suspects during interrogation following their arrest.
Police Headquarters sources said a UNP politician released fromremand custody had held a grand dinner which was attended byseveral underworld criminals as well as some leading businessmen.
The CID had earlier received snatches of information regarding analleged plot to harm the President. The plot became more evidentwhen the CID followed up. The evidence gathered duringinterrogation of Mr. Cooray (sic.).
Informed sources said Mr. Cooray had been arrested on informationabout an alleged political conspiracy. Mr. Cooray is alleged to havehad meetings with several suspects released from jail recently.
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CID sources said they hoped to reopen investigations into severalearlier investigations, into several earlier incidents involving theunderworld in an effort to unravel the mystery behind those incidents.Several opposition politicians too are to be questioned in thisconnection and two more underworld characters, to be arrestedsoon, will be produced as prosecution witnesses."
Mr. Cooray states in his affidavit – and this has not beencontroverted – that on the 23rd of June he drew the attention of theofficers who were interrogating him on that day to these two newsreports.
During the afternoon of the 24th of June, and only upon thatoccasion, was Mr. Cooray asked whether he was involved in a plot toassassinate or harm the President. The petitioner denied anyinvolvement in such a conspiracy and requested specific particularsof the information alleged to have been received by the policeagainst him so that he might respond; but he was not furnished withsuch information. The Court had earlier on that day granted thepetitioner leave to proceed in this matter. What is the explanation forthis extraordinary anxiety to be uninformed? Mr. De Silva submittedthat it was a matter of police "technique" to first ascertain peripheralmatters and then come to the relevant question. If those were hisinstructions, I must say that, placing myself in the position of a“reasonable man”, I am quite surprised that it took over a week to getover the peripheral matters; and that it is a matter of amazement thatwhen, according to the Secretary’s affidavit, the Director of theNational Intelligence Bureau had in his report of the 11th of Junestated that the President was to be assassinated or injured “in thenear future", no question was put to Mr. Cooray until he himself hadraised the matter on the 24th of June. If the report in the SundayTimes that Mr. Sumanasekera had said that there was no more than“a little bit of evidence" is accurate, how does one reconcile thatstatement with what Mr. Sumanasekera reported to the Secretary? Hehas not filed an affidavit contradicting the accuracy of the SundayTimes report which was an item of evidence in this case.
There were, as we have seen, many things said in each of thereports of the police officers relied upon by the Secretary that werevague and suspicious. The. Secretary did not call for any clarification
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on the report of the Inspector-General of Police, nor on the report ofthe National Intelligence Bureau. With regard to the report of theDeputy Inspector-General of Police dated the 14th of June 1997,however, he says he sought clarification. But what did he ask?:“Please identify the manner in which the persons mentioned in yourreport would be a threat to national security." Surely, if the Secretarydid believe the allegation that "the detenu had sought [the]assistance of certain members of a group involved in the commissionof dangerous criminal acts to cause harm to or assassinate HerExcellency the President", there should have been no doubt in hismind that there was a threat to National Security? Why did he not alsoask him whether it would have been a threat to public order when inthe Detention Order and in his affidavit he states that the detentionwas ordered to prevent a threat to both national security and publicorder? They are two different things although they may co-exist. In hisletter to the Chairman of the Advisory Committee the Secretary statesthat the arrest was made because of an alleged “threat to nationalsecurity". There is no reference to public order. The Secretary of theMinistry of Defence required no education on the issue whether aconspiracy to assassinate or harm the President would affect nationalsecurity? Surely, there was no need for him to be instructed by anyperson on that matter?. The decision whether certain activities of acitizen constitutes a threat to National Security is a matter for theSecretary and not for a police officer, whatever his rank might be. Thepower of the Secretary given by regulation 17(1) concerns thephysical liberty of persons, including those who have not yet, norever, committed an offence. It is therefore an exceedingly greatpower, indeed an awesome power, that must be exercised with acorresponding degree of responsibility. There is public respect for theindependence and impartiality of the Secretary, albeit tinged withlatent reverential fear. The Secretary must fulfil public expectationsand be independent and impartial.
Obviously, in appropriate circumstances, as for instance, in theJanatha Finance and Investments case (Supra), the Secretary may,rely upon the opinions, conclusions and recommendations of seniorpolice officers. Each case, however, must depend on its owncircumstances; but the cardinal, invariable principle in each case isthat the person making the order of detention must be "satisfied".
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It should be pointed out that in his letter dated the 3rd of July 1997to the Chairman of the Advisory Board appointed in terms ofRegulation 17(5), to enable the Chairman to inform the personsdetained of the “reasons" for their arrest, the Secretary states that theDetention Orders on Mr. Cooray and three other persons "have beenissued after being satisfied on the material submitted to me bythe D.I.G., C.I.D. to the effect that Mr, Sirisena Cooray has sought theassistance of certain persons to cause harm to or to assassinate HerExcellency the President." The representations or submissions to theAdvisory Committee made by a person arrested would be directed toresponding to the stated grounds for the arrest. The grounds to bechallenged would depend on the basis for the Secretary's order: TheSecretary's letter very clearly indicates that there was but one sourceof information he relied on – the material submitted to him by theD.I.G., C.I.D. I am inclined to think, upon a reading of the Secretary’snarration of what was contained in the reports referred to by him, thatthe Secretary was in fact persuaded by the D.I.G., C.I.D. to issue theDetention Order and that the opinion formed was not that of theSecretary.
In the matter before us, the Secretary in my view abdicated hisauthority and mechanically signed the Detention Order. As I havepointed out, the Secretary's decision was not reasonable in the sensethat it was not supported with good reasons, and therefore it was nota decision which a reasonable person might have reasonablyreached. His decision was not only wrong, but in my viewunreasonably wrong. This happened because he did not satisfyhimself but allowed himself to be misled. It was not his opinion:Matinda Channa Pieris (Supra) at p. 58, The matter before us is agood illustration of what Wade (p.401) describes as "self-misdirection" and therefore a case in which the Secretary cannot beheld to have been “satisfied".
Taking a person into custody and detaining him in pursuance ofsuch a decision is not in accordance with "procedure established bylaw" and it is therefore in violation of Article 13(1) of the Constitution:Sasanasiritissa Thero and others v. De Silva and Others™ Weerakoonv. WeeraratneIM) Somasiri v. Jayasena and Others™ Dissanayake v.Mahara Prisons (Supra) Channa Pieris v. Attorney-General (Supra)at p. 59.
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The form and contents of Detention Order suggests it wasmechanically issued.The Secretary states in the Detention Order dated the 16th of June1997 that he was making the order 'being of opinion and with a viewto preventing the person specified and residing at the placementioned in Column 1 of the Schedule to this order from acting inany manner prejudicial to National Security or to the maintenance ofpublic order’, it is necessary so to do …
The order is set out in a standard, pre-prepared, form: the onlyvariations between one case and the other relate to information,furnished at the bottom of the page of the order in a schedule,concerning (1) the date of the order; (2) the name and address of theperson to be detained; and (3) the place of detention. The standardform used in this case follows the forms used when the 1989Emergency Regulations were in operation when the Secretary wasrequired to be of the ‘opinion’ that the detention was necessary toprevent the person ordered to be arrested and detained from actingin any manner prejudicial to national security or to the maintenance ofpublic order. The Regulations introduced by Gazette Extraordinary606/4 of 18 April 1990 substituted the word 'satisfied' for the word'opinion'. Due to judicial interpretation, there may be no practicaldifference in the use of the terms: Charna Pieris and Others v.Attorney-General and Others, (Supra) at p. 58. But, the retention ofthe older term in the Form suggests a lack of spontaneity that onewould expect from an individual acting in accordance with thespecific obligation of being personally satisfied imposed on him bythe provisions of the law he invokes: the form used suggests that theSecretary was driven not by his own thoughts but by the stimulusderived from an outside source: the letter to the Chairman of theAdvisory Committee indicates that the Secretary relied on the reportof the D.I.G. Moreover, the use of the words ‘acting in any manner’,borrowed from Regulation 17, rather than the specific manner inwhich the person ordered to be detained was suspected of beinglikely to act in a manner prejudicial to the National Security or to themaintenance of public order, raises doubts as to whether theSecretary did in fact give his mind to the question whether the personordered to be arrested and detained was likely to act in a mannerprejudicial to National Security or to the maintenance of public order:
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had he been convinced, what was the difficulty in specifically statinghis grounds, if he had any? In my view, he did not state any groundsbecause he had no grounds. The Police officers who advised theSecretary ftiight have been hoping that some evidence might turn up;but at that stage all they had was mere suspicion based on whatMr. Sumanasekera had described in his interview reported in theSunday Times of June 22 1997 – six days after the arrest inpursuance of the Detention Order – (which was filed as evidence inthis case by the petitioner and not controverted) as "a little bit ofevidence.”
Regulation 17(1) empowers the Secretary to detain a person forthe specific purposes laid down therein including the prevention ofpersons from acting in any manner prejudicial to the national securityor to the maintenance of public order. As pointed out in KishoriMohan v. The State of Wesf Bengal™, national security and publicorder are two different things. Admittedly, in the circumstances of aparticular case, the Secretary might be satisfied that both nationalsecurity and public order were in jeopardy, In such an instance, heshould clearly indicate that that was the case. However, where hestates, as in this case, that it was necessary to detain the person toprevent him from acting in a manner "prejudicial to the nationalsecurity or to the maintenance of public order” (the emphasis ismine), the satisfaction of the Secretary, in the words of Shelat, J. inKishori Mohan (Supra), “was on the disjunctive and not conjunctivegrounds, which means that he was not certain… If he felt thenecessity to detain the (person) from the activities described by himin the grounds of detention on the ground that those activitiesaffected or were likely to affect both the public order and the securityof the State he would, no doubt, have used the conjunctive “and" notthe disjunctive “or" in his order. But, as the order stands, it wouldappear that he was either not certain whether the alleged activities ofthe (person ordered to be detained) endangered public order or thesecurity of the State, or he did not seriously apply his mind on thequestion whether the said alleged activities fell under one head or theother and merely reproduced mechanically the language" of theregulations empowering detention.
On the face of it, the order suggests that the Secretary of theMinistry of Defence was acting mechanically without due regard to
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the circumstances of the particular case in respect of which he wasissuing the order of detention. As we have seen, orders signedmechanically show that the person making the order was not“satisfied” that the arrest was warranted. If he is not “satisfied”, theSecretary is not empowered to issue a Detention Order. If henevertheless issues such an order, an arrest made in pursuance ofsuch an order is not according to procedure established by law and,therefore, contravenes Article 13(1) of the Constitution and is unlawfuland invalid.
Was Mr. B. Sirisena Cooray given reasons for his arrest?Article 13(1) of the Constitution not only states that no person shallbe arrested except according to procedure established by law, but italso states that “Any person arrested shall be informed of the reasonfor his arrest."
The petitioner in his affidavit states that (1) the Detention Order didnot state any reason for the arrest; (2) the Police Officers who madethe arrest did not give Mr. Cooray any reasons for his arrest; (3) thePolice Officers were not able to state any reasons upon beingquestioned; and (4) the Police Officers declined to record astatement of Mr. Cooray to the effect that he inquired from them as tohow he was said to be acting in a manner prejudicial to the nationalsecurity or the maintenance of Public Order. This is confirmed byMr, Cooray in his affidavit.
The Secretary in his affidavit states that (1) the Detention Order“sets out the purposes for which (Mr. Cooray] was taken into custodyand detained”; and that (2) Superintendent of Police Sisira Mendiswho served the Detention Order has stated in his affidavit that he hadinformed Mr. Cooray of “the purpose" for which he was taken intocustody and detained. The Secretary later states that he had by hisletter dated the 3rd of July 1997 informed the Chairman of theAdvisory Committee appointed in terms of Regulation 17(5) of “thereasons for the detention of (Mr. Cooray] to enable him inform(Mr. Cooray] of the same in terms of Regulation 17(9) of the saidRegulations. “As we have seen, the information furnished to the
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Chairman were not “reasons"; they were merely inferences. The letterto the Chairman of the Advisory Committee relates to DetentionOrders served on Mr. Cooray and the three others who constituted athreat to national security by conspiring to cause harm to orassassinate the President.
The Detention Order does indeed set out the purposes for whichMr. Cooray was being arrested and detained: It states that theSecretary deemed it necessary to take into custody and detainMr. Cooray “being of opinion and with a view to preventing … [him]from acting in any manner prejudicial to the National Security or tothe maintenance of public order." Mr. Mendis who executed the orderalso states that he informed Mr. Cooray of the “purpose" of the arrest.Article 13(1) of the Constitution, however, states that "Any personarrested shall be informed of the reason for his arrest." Arguably,having regard to the letter of the Secretary to the Chairman of theAdvisory Committee, the Secretary appreciated the difference.However, he seems to have assumed that the task of giving reasonswas the duty of the Chairman of the Advisory Committee when thearrest was one that was made in terms of Regulation 17(1) and that itwas sufficient for him and the officer making the arrest to state thepurpose of the arrest.
The whole scheme of the criminal law assumes it to be a basicneed that an accused should clearly understand what he issupposed to have done. Section 23(1) of the Code of CriminalProcedure (CCP) states, inter alia, that “In making an arrest theperson making the same … shall inform the person to be arrested ofthe nature of the charge or allegation upon which he is arrested,“Section 53 states that “the person executing the warrant of arrestshall notify the substance thereof to the person arrested and, if sorequired by the person arrested, shall show him the warrant or a copythereof signed by the person issuing the same.” A magistrate holdinga preliminary inquiry in a case triable by the High Court is required bysection 146 CCP "to read over to the accused the charge or chargesin respect of which the inquiry is being held.1’ If at the end of thatinquiry the magistrate does not discharge him, section 150 CCPrequires the magistrate to “read the charge to the accused and
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explain the nature thereof in ordinary language." Section 164 CCPprovides, inter alia, that every charge shall state the offence withwhich the accused is charged and that it should be “read to theaccused in a language which he understands." Section 165 CCPprovides that particulars of the commission of the offence must be sostated as to give an accused sufficient notice of the matter with whichhe is charged. At a summary trial, the magistrate is required bysection 182 CCP to frame a charge and read such charge to theaccused. At a High Court trial, section 195 CCP requires that a copyof the indictment be served on the accused, and sections 196 and204 CCP require that “the indictment shall be read and explained tothe accused.”
Article 13(1) of the Constitution elevates a principle that was a partof the ordinary law to the status of a fundamental right. When therelevant provision of the Indian Constitution were being discussed inthe Constituent Assembly, Dr. Ambedkar – the moving spirit behindthe draft – explained to the Assembly on September 15, 1949 thatthis was being done because the right to be informed of the reasonsfor one’s arrest was one of the “most fundamental principles whichevery civilized country follows". Article 14 of the InternationalCovenant on Civil and Political Rights states that among the"minimum guarantees” everyone is entitled to is the right “to beinformed promptly and in detail in a language which he understandsof the nature and cause of the charge against him.”
Mr. S. Sharvananda, retired Chief Justice, in his treatise onFundamental Rights at page 141 (cited with approval in ChannaPieris v. Attorney-General (Supra) at p.67) explains why it isnecessary that reasons should be given and why the reasons shouldbe promptly given: He states as follows:
“The requirement that a person arrested should be informed of thereason for his arrest is a salutary requirement. It is meant to afford theearliest opportunity to him to remove any mistake, misapprehensionor misunderstanding in the mind of the arresting authority and todisabuse the latter’s mind of the suspicion which triggered the arrestand also for the arrested person to know exactly what the allegation
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or accusation against him is so that he can consult his attorney-at-lawand be advised by him: Mariadas v. Attorney-General(27>, All thematerial facts and particulars must be furnished to the arrestedperson because they are the reasons or grounds for his arrest toenable the arrested person to understand why he has been arrested… The necessity to give reasons serves as a restraint on the exerciseof power and ensures that power will not be arbitrarily employed."
It is insufficient for the person arrested to be given the purpose orobject of the arrest, such as those set out in Regulation 17(1) andreproduced in the Detention Order in this case: Selvakumar v.Douglas Devananda and Others™. He must be given the reasons,i.e. the grounds – all the material and pertinent facts and particularsthat went to make up the mind of the Secretary and not merely theinferences arrived at by the Secretary: Shalini Soni and Others v.Union of India and Others™. For it is then that the person will haveinformation that will enable him to take meanirigful steps towardsregaining his liberty, e.g. by showing that there was a mistake or byrebutting a suspicion or explaining a misunderstanding, with theresult that, perhaps after further inquiries, he may be saved from theconsequences of false accusations: Gunasekera v. De Fonsekac30);Wickramabandu v. Cyril Herath<s"; Munidasa v. Seneviratne[31h,Channa Pier is v. Attorney-General (Supra) at p. 68; Faurdeen v.Jayetilleke (Supra)-, Kumarasena v. Sriyantham) Christie v.Leachinsky™.
Mr. De Silva submitted that there was no requirement under theEmergency Regulations to give reasons for an arrest and in supportof that view he cited the dictum of Kuiatunga, J. in SasanasiritissaThero and Others v. De Silva and Others. (Supra) at 363-364 whichfollowed the decision of this Court in Vijaya Kumaranatunga v. G.V.P,Samarasinghe and Others™. In Kumaratunga, Soza, J. (Ranasinghe,agreeing) observed: “The contents of the order ‘A’ sufficientlyapprised the petitioner that he was being arrested incontravention of Regulations 23 and 24 of the EmergencyRegulations. Among the offences specified in Regulation 24 thereare the offences of arson and theft which are offences under thePenal Code for which arrest without a warrant is justifiable under the
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Criminal Procedure Act. So here we have an arrest by a Police Officerwith reasons given and despite the fact that he was acting underthe authority of the detention order marked 'A’, his action can bejustified under the powers vested in him under the Code of CriminalProcedure. Such an arrest is in accord with the provisions of Article13 (1)." The emphasis is mine. The petitioner in that case, accordingto Soza, J. was given reasons in the Detention Order. Soza, J.however, stated that Article 13(1) of the Constitution was subject tosuch restrictions as may be prescribed by law, including theEmergency Regulations. These regulations, he said, “overshadow thefundamental rights guaranteed by Articles 13(1) and (2) of theConstitution. Soza, J. went on to state as follows:
“…the communication of the reasons for the arrest at the time ofthe arrest is not imperative when the emergency regulations are inoperation. This is obviously because if reasons are disclosed at thetime of taking a person into custody, it may enable counteraction tobe taken to frustrate the very purpose of the arrest and hamper andhinder the steps taken by the Government to protect the communityand prevent grave public disorder. No doubt, a person beingarrested must know why he is arrested. During times of nationalemergency, this requisite has to be satisfied in accordance with theEmergency Regulations at a later stage and soon enough for thedetenu to make representations against his arrest and detention.According to Regulation 17(4) it is obligatory for one or moreAdvisory Committees to be set up consisting of persons appointedby the President. Any person aggrieved by an order made againsthim under Regualtion 17 may make his objections to the appropriateAdvisory Committee. It is the duty of the Chairman of the Committeeto inform the objector of the grounds on which the order under thisregulation has been made and to furnish him with such particulars asare in the opinion of the Chairman sufficient to enable him to presenthis case. It is, therefore, always open to the detenu to apprise himselfof the grounds of arrest. The express provision in our Regulationstipulating that the Chairman of the Advisory Committee shouldinform the detenu of the grounds of detention implicitly makes acommunication of reasons at the time of arrest unnecessary.”
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Mr. De Silva also referred to the judgment of Kulatunga, J. inWickremabandu v. Cyril Herath and Others (Supra).
Kulatunga, J. at P. 381 stated as follows:
"As a matter of principle the requirement in Article 13(1) that anarrested person shall be informed of the reason for his arrest may nolonger be limited to a person accused of a crime. In the context ofthe freedom from arbitrary arrest it can extend to a person arrestedunder any law for preventive detention. However, at Common Law theright was given to a person accused of a crime – Christie v.Leachinsky, (Supra)-, Muttusamy v. Kannangara, (Supra). Theinformation of the ground of the arrest or of the offence has to begiven, inter alia, to afford to the suspect an opportunity to show thatthere is some mistake as to identity – Gunasekera v. Fonseka,(Supra). It is this right which has been elevated to a fundamentalright. Viewed in this background there can be no objection to arestriction of this right in its application to a person in preventivedetention who is not arrested on suspicion for an offence, eventhough a total denial of the right may be questioned. Presumably forthis reason laws for preventive detention including our Regulation 17do not insist on the requirement to notify the ground of suspicion atthe time of arrest… Accordingly, I am of the view that Regulation 17does not amount to a denial of the fundamental rights enshrined inArticle 13(1) of the Constitution.”
After setting out the provisions of the regulations relating toAdvisory Committees appointed under Regulation 17, Kulatunga, J.at pp. 384-385 states as follows:
“Although there is no provision in Regulation 17 for serving on adetenu a copy of the order at the time of his arrest I am of the viewthat the detenu should at least be informed of the fact of his arrest onsuch order except where the exigencies of the case preclude it. Acopy of the detention order should be given to the detenu. UnderArticle 22(5) of the Indian Constitution, the duty to afford the detenuthe earliest opportunity of making representations against the orderas well as to inform him of the grounds of the order are in theAuthority making the order. The Supreme Court has held that in order
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to make the right of making representations effective, the detenushould also be furnished with particulars of the grounds of hisdetention sufficient to enable him to make a representation: ShibbanLai Saksena v. State of U.Pm>.
Under Regulation 17(6) the duty of giving the grounds of the orderand sufficient particulars is placed on the Chairman of the AdvisoryCommittee to be complied with at a meeting to consider the detenu’sobjections. No doubt this procedure would hamper the formulation ofhis objections but since the regulation clearly contemplates thegiving of such grounds and particulars at the commencement of theinquiry, I do not think that it will lead to injustice. If upon suchcommunication the detenu applies for time to prepare his case, theAdvisory Committee should grant a postponement. Further the factthat the sufficiency of particulars is made subject to the opinion of theSecretary cannot be construed as giving the Chairman an arbitrarypower to withhold particulars which are vital to a fair hearing.However, the Secretary may decline to furnish particulars which hecannot disclose in the public interest."
Neither Soza, J. nor Kulatunga, J. stated that the communication ofreasons was unnecessary when a person was arrested under theEmergency Regulations: what they did say was that the reasons neednot be given at the time of the arrest and could be given later. Article22(1) of the Indian Constitution states that “No person who is arrestedshall be detained in custody without being informed, as soon as maybe, of the grounds for such arrest." Article 13(1) does not provide fora time. That aspect of the matter is governed by the general law.Section 23(1) of the Code of Criminal Procedure states as follows: “Inmaking an arrest the person making the arrest shall actually touch orconfine the body of the person to be arrested unless there besubmission to the custody by word or action and shall inform theperson to be arrested of the nature of the charge or allegation uponwhich he is arrested." It is plain that the charge or allegation shouldbe made known at the time of the making of the arrest and notsubsequently. The fact that at the time of the hearing by the AdvisoryCommittee the Chairman is required to inform the person objecting tohis detention of the grounds on which the order of detention has been
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made, does not carry with it the corollary that the person arrestedshould not be informed of the charge or allegation at the time of hisarrest: As we have seen, judges in the criminal courts are required toexplain the charges; but that does not mean that the obligation tostate the charge or allegation prescribed by section 23(1) of theCode of Criminal Procedure is to be discarded, Soza, J. stated that“The express provision in our Regulations stipulating that theChairman of the Advisory Committee should inform the detenu of thegrounds of detention implicitly makes a communication of reasons atthe time of detention unnecessary". As I have pointed out, the factthat the Chairman is required to communicate reasons does not leadto the conclusion that the person arrested need not be informedat the time of his arrest of the reasons for his arrest. They are mattersapart. There are two rights: (i) the Constitutional right to be informedof the reason for arrest guaranteed by Article 13(1) ofthe Constitution; and (ii) the right to be informed of the grounds ofarrest given by Regulation 17. The first is to enable a person arrestedat the time of his arrest to obtain his freedom immediately by showinggood cause for his release. The second is to enable himsubsequently to make a case to the Advisory Committee forhis release. They are quite separate and distinct rights and theprovision of the second does not in my view wipe out or restrictthe first.
Regulation 17(5) provides for the appointment of an AdvisoryCommittee "for the purpose", it is said, of "this regulation".Presumably, it means “for the purpose of hearing objections todetentions made under this regulation", for Regulation 17 deals withvarious matters, including matters other than those concerned withAdvisory Committees. Regulation 17(7) states that “Any personaggrieved by an order against him under this regulation may makehis objections to such Advisory Committee”. Regulation 17(8) statesthat “Any person aggrieved by an Order under this regulation isentitled to be informed of his right to make objections in writing tosuch Advisory Committee as aforesaid.” Naturally, every person whois imprisoned would be hurt in spirit and have cause to complain ofthe infliction of wrong, oppression, or distress, real or supposed,caused by the order of imprisonment. Was Mr. Cooray informed of his
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right? All that the Secretary states he did was to inform the Chairmanof the Advisory Board the “reasons" the Chairman could giveMr. Cooray for his arrest. Assuming that a person detainednecessarily feels aggrieved, what are the objections he would want tomake to the Advisory Committee in terms of Regulation 17{7)? Theyrelate to objections against the order of detention. How could hemake meaningful, specific, objections unless he knows the groundson which the Detention Order was issued? After stating that it is theduty of the Chairman of the Advisory Committee to inform the personobjecting to his arrest of the grounds on which the order of detentionwas made, Soza, J. states: “It is, therefore, always open to the detenuto apprise himself of the grounds of arrest." With great respect, this isa non-sequitur: How is it ‘always open’ to a person arrested anddetained to inform himself of the reasons for his arrest merelybecause the Chairman of the Advisory Committee is obliged to givehim reasons? Reasons will be given only when the Committee meets.The duty of the Chairman of the Advisory Committee to inform theperson detained arises when there is a meeting of the Committeeheld to consider the objections of the person detained: Regulation17(9). Meetings of the Committee are held to hear objections:Regulation 17(9). How can the person detained make meaningfulobjections unless he has before him the reasons for his arrest?Kulatunga, J. did appreciate the problem, but His Lordship was ofthe view that after the intimation of reasons, further time should begranted to enable the person detained to prepare his case. That, withgreat respect, does not solve the problem: Regulation 17(7) statesthat "Any person aggrieved by an order against him under thisregulation may make his objections to such Advisory Committee.Regulation 17(9) states "At any meeting of an Advisory Committeeto hear such objections as aforesaid shall be presided over by theChairman. It shall be the duty of the Chairman to inform the objectorof the grounds on which his order under this regulation has beenmade against him and to furnish him with such particulars as are inthe opinion of the Chairman sufficient to enable him to present hiscase." The meeting is convened in the first place to hear theobjections of the objector. In order to make objections so that ameeting may be convened, the person detained must have thegrounds upon which the order was made.
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In any event, could the Advisory Committee have at any time givenMr. Cooray the reasons for his arrest? The Secretary did write a letterto the Chairman of the Advisory Committee on the 3rd of July inwhich he refers to the Detention Orders of Mr. Cooray and threeothers. He states: "These Detention Orders have been issued by meafter being satisfied on the material submitted to me by the D.I.G.,C.I.D. to the effect that Mr. Sirisena Cooray has sought the assistanceof certain persons to cause harm or to assassinate Her Excellencythe President. Some of the persons allegedly identified are Upali deSilva, U.L. Seneviratne, W.B. Somaratne and J.P. Jayamanna. Furtherit is reported that some persons have been enlisted as ReservePolice Officers and given training in sophisticated weapons.Whereabouts of some such persons trained in weapon use are nottraceable today. Any conspiracy to cause acts in furtherance of sucha purpose was considered a serious threat to national security. Thisletter is sent to you for the purpose of ER 17 (9) published in GazetteExtraordinary No. 843/12 of 4.11.1994. “Assuming that thisinformation was communicated by the Chairman to Mr. Cooray (infact it was not so done), what could Mr. Cooray have done:Obviously, he was not going to have any objection to the conclusionthat a conspiracy to assassinate the President was a threat tonational security. But what could he say about “some persons" whowere supposed to have been enlisted as Reserve Police Officers andtrained in the use of sophisticated weapons? Who were thesepersons? How were they linked to Mr. Cooray or to the conspiracy?How was Mr. Cooray responsible for the fact that the whereabouts ofthose persons was not known? With regard to the statement thatMr. Cooray had sought the assistance of the persons named andothers to harm or assassinate the President, Mr, Cooray could havebaldly denied it, but he was not placed in a position in which he couldobject to the conclusion arrived at by the Secretary, for although theSecretary says that he gave the "reasons" for the arrest in his letter tothe Chairman of the Advisory Committee, he did not in fact do so. Aswe have seen, Kulatunga, J. in Wickremabandu said that theChairman should give the “grounds" and furnish the "particulars" onwhich the Secretary's decision was made so that the person detainedcould state his case. This is plainly stated in Regulation 17(9). Whenhe stated that Mr. Cooray had conspired with certain persons to harmor assassinate the President, the Secretary was stating his inference
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from certain facts: His duty was not merely to state his inference butalso the grounds on which the inference was based.
In India, Article 22 (5) of the Constitution states: ' When anyperson is detained in pursuance of an order made under any law forpreventive detention, the authority making the order shall, as soon asmay be, communicate to such person the grounds on which theorder has been made and shall afford him the earliest opportunity ofmaking a representation against the order." There is nocorresponding provision in the Constitution of Sri Lanka. Theprocedure for objection in Sri Lanka is set out in Regulation 17 (5) -(11). With regard to Article 22 (5), in Shalini Soni and Others v. TheUnion of India and Others, {Supra) the Supreme Court of India statedas follows:
“The Article has two facets: (1) the communication of the groundson which the order of detention has been made: (2) opportunity ofmaking a representation against the order of detention.Communication of the grounds presupposes the formulation of thegrounds and formulation of the grounds requires and ensures theapplication of the mind of the detaining authority to the facts andmaterials before it. that is to say pertinent and proximate matters inregard to each individual case and excludes the element ofarbitrariness and automatism (if one may be permitted to use theword to describe a mechanical reaction without a consciousapplication of the mind). It is an unwritten rule of law, constitutionaland administrative, that whenever a decision-making function isentrusted to the subjective satisfaction of a statutory functionary,there is an implicit obligation to apply his mind to pertinent andproximate matters only, eschewing the irrelevant and the remote.Where there is further an express statutory obligation to communicatenot merely the decision but the grounds on which the decision isfounded, it is a necessary corollary that the grounds communicated,that is, the grounds so made known, should be seen to pertain topertinent and proximate matters and should comprise all theconstituent facts and materials that went to make up the mind of thestatutory functionary and not merely the inferential conclusion .,. Thematter may also be looked at from the point of view of the secondfacet of Article 22 (5). An opportunity to make a representation
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against the order of detention necessarily implies that the detenuis informed of all that has been taken Into account against him Inarriving at the decision to detain him. it means that the detenu isto be Informed not merely, as we said, of the inferences of factbut of all the factual material which have led to the inferences offact. If the detenu is not to be so informed the opportunity sosolemnly guaranteed by the Constitution becomes reduced to anexercise in futility. Whatever angle from which the question is lookedat, it is clear that “grounds" in Article 22 (5) do not mean merefactual inferences but mean factual inferences plus factual materialwhich led to such factual inferences. The “grounds" must be self-sufficient and self-explanatory. In our view copies of documents towhich reference is made in the “grounds" must be supplied to thedetenu as part of the "grounds".
The Court referred to the decision of the Supreme Court of India inICCU Devi Choria v. Union of India m, where it was stated that “Ifthere are any documents, statements or other materials relied upon inthe grounds of detention, they must also be communicated to thedetenu, because being incorporated in the grounds of detention, theyform part of the grounds and the grounds cannot be said to becomplete without them…" (per Bhagwati, J. for the Court). In thatcase, it was held that if the requirement to give grounds of detentionand furnish the materials relied upon had not been complied with, thecontinued detention of the detenu would be "illegal and void".
The Secretary has not stated the grounds of detention. He hasmerely stated an inference which he states was based on the reportof the Deputy-Inspector General of Police. In the circumstances, itwas imperative that that report should have been made available toMr. Cooray. If the report contained material that was not in the publicinterest to disclose, the Secretary was at liberty not to give thatreport, provided that he did not state, as he did, that that report wasthe sole basis for his inference. What he was obliged to do was tostate the grounds: he did not do that, but referred to the report as hisgrounds. The failure to comply with the requirements of Regulation 17with regard to the matter of informing Mr. Cooray of the grounds ofdetention makes his continued detention illegal and void and violatesArticle 13 (1) of the Constitution.
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Admittedly, the exercise and operation of the fundamental rightsdeclared and recognized by Article 13 (1) of the Constitution,including the right to be informed of the reason for arrest, are‘subject to such restrictions as may be prescribed by law in theinterests of national security, public order" and certain other mattersspecified in Article 15 (7) of the Constitution. “Law”, for this purposeincludes regulations made under the law for the time being relating topublic security and would, therefore, include the EmergencyRegulations. Soza, J. in Kumaranatunga v. Samarasinghe (Supra) atp. 359 stated that the Emergency Regulations "overshadow thefundamental rights guaranteed by Articles 13 (1) and 13 (2) of theConstitution". If he meant that the Emergency Regulations toweredabove the Constitutional rights guaranteed by Articles 13 (1) and 13(2) and cast those rights into the shade so as to obscure those rightswith complete darkness. I would, respectfully, disagree with him. Itcomes as no surprise that the Emergency Regulations do no suchthing. Why? Because it cannot do such a thing: An amendment orrepeal of Constitutional provisions can only be effected inaccordance with the provisions of Chapter XII of the Constitution.Emergency Regulations may, in terms of Article 155 (5), override,amend or suspend the operation of any law, except the provisionsof the Constitution. On the other hand, if Soza, J. meant that theEmergency Regulations overspread the Constitutional rights withsome influence by imposing certain restrictions on the operationand exercise of such rights, I would then, respectfully, agree with him.However, although such restrictions on fundamental rights may beimposed, they cannot be restricted to a point of denial: perKulatunga, J. at p. 380 and p. 381; cf. per H. A. G. de Silva, J.(Fernando, J. agreeing) at p. 359 in Wickremabandu (Supra).Moreover, Emergency Regulations restricting the exercise andoperation of fundamental rights may be made only for the reasonsspecified in Article 15 (7) of the Constitution and must be confined tothose reasons in their construction and interpretation. “Whenprovisions affecting the liberty of the subject are in question inroadsinto them must be strictly scrutinized and construed ": perSamarakoon, CJ in Kumaranatunga v. Samarasinghe (Supra). As anorgan of government, the role of the judiciary is clear: Article 4 (d) ofthe Constitution states that “the fundamental rights which are by theConstitution declared and recognized shall be respected, secured
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and advanced by all organs of government, and shall not beabridged, restricted or denied, save in the manner and to the extenthereinafter provided.” Any restriction of the exercise and operation ofthe fundamental rights declared and recognized by Article 13 (1) canonly be made by “law"; Article 15 (7). We are obliged to respect,secure and advance fundamental rights. We cannot imposerestrictions on any fundamental right guaranteed by the Constitution:Such restrictions may only be prescribed by law – by an Act ofParliament or by regulations made under the law relating to publicsecurity. No such restriction has been imposed: Channa Pieris v.Attorney-General, {Supra) at p. 63.
In India, a distinction is drawn between ordinary arrests andarrests relating to preventive detention. Article 22 of the IndianConstitution makes its guarantee of the right to be informed of thegrounds of arrest as soon as may be, inapplicable to any person whois arrested or detained under any law providing for preventivedetention. There is no such distinction recognized by ourConstitution. And as far as I can see, there is no law (includingEmergency Regulations) that restricts the exercise and operation ofthe right to be given the reason for arrest declared and recognizedby Article 13 (1) of the Constitution: Channa Pieris v. Attorney-General, {Supra) at p. 63. And although the Emergency Regulationsexpressly make inapplicable certain provisions of the Code ofCriminal Procedure, section 23 of that Code Is not one of thoseprovisions. Therefore, persons who are arrested – whether under theprovisions of the ordinary law or under the Emergency Regulations -have a Constitutional right to be informed of the reason for the arrest{Channa Pieris v. Attorney-General, {Supra) at p. 63); and a statutoryright at the time of arrest to be informed of the nature of the charge orallegation upon which he is arrested.
Mr. De Silva submitted that preventive detention related to cases inwhich no offence had yet been committed, and that, therefore, noreasons could be given in such cases and, therefore, the law wasthat in cases of preventive detention no reasons were required to begiven. He referred to the judgment of Kulatunga, J. in Wickramabanduv. Herath and Others {Supra). At page 381, Kulatunga, J. states asfollows: “The right of a person arrested to be brought before the
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judge of a competent court is much more associated with a personaccused of an offence for it is by such Court that he will be eventuallytried. Such Court would also have the power to enlarge him on bail.These considerations do not apply to a person in preventivedetention and hence such person may not be brought before a judgeof a competent court.” With great respect, I am unable to agree. Theconstitutional right of a person to be brought before the judge of thenearest competent court according to procedure established by lawhas no necessary connection with the Court that will eventually tryhim. The Court that may eventually try him, will, in respect of seriousoffences, be the High Court. Nevertheless, in accordance with theprocedure established by law, after his arrest, a person would haveto be brought before a magistrate, regardless of the fact that, byreason of the nature of the offence, the person may have to stand histrial in the High Court. Nor is the question of bail relevant. Forinstance, in respect of the offence of waging war or abetting thewaging of war against the Republic (section 114 Penal Code), or inrespect of the offence of giving false evidence with intent to procurethe conviction of a person of a capital offence (section 191 PenalCode), or in respect of the offence of murder (section 296 PenalCode), a magistrate (nor for that matter a judge of the High Court)cannot release a person on bail except with the sanction of theAttorney-General: Section 403 Code of Criminal Procedure.Nevertheless, in accordance with procedure established by law, afterhis arrest, a person would have to be brought before a magistrate,regardless of the fact that, by reason of the provisions of law,including I might say the Emergency Regulations, the magistrate hasno power to release the person on bail. I
I am unable to agree with the submission of learned counsel forthe respondents that there is no requirement to give reasons forarrest to a person ordered to be detained under Regulation 17 (1)because it is not possible since he has not yet committed an offence.It would not be possible to charge a person with the commission ofan offence if no offence had been committed, but it is both possibleand necessary to inform him of the nature of the allegation againsthim (Section 23 Criminal Procedure Code), and the grounds on whichthe Secretary was satisfied that it was necessary to take that personinto custody: See the observations of the Supreme Court of India,
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with which I respectfully agree, in Shalini Soni and Others v. Union ofIndia and Others cited earlier in my judgment. In this case, theSecretary states in his affidavit that he did convey to the Chairman ofthe Advisory Committee the “reasons" for the detention which he wasexpected to convey to Mr. Cooray in due course. That was not reallyso – but that is another matter. At least he stated his inference, whichhowever Mr. Cooray did not know until, after he had read theallegation reported in the newspapers, he was able to drag it out ofhis interrogators. Mr. De Silva also overlooked the fact that regulation24 (b) states that whoever, inter alia, "… conspires to murder… thePresident… shall be guilty of an offence notwithstanding anything inany other law, and shall upon conviction before the High Court beliable to be punished with death or rigorous imprisonment for aperiod not less than five years and not exceeding twenty years andshall forfeit all his property." And so there was an offence he wassupposed to have committed and there ought to have been groundsfor that conclusion.
Although the Secretary issued the detention order on the 16th ofJune 1997, because he says he was satisfied that Mr. Cooray wasinvolved in a conspiracy to assassinate or harm Her Excellencythe President, yet, as we have seen, it was only on the 24thof June that he was asked about the alleged conspiracy, andthat too after Mr. Cooray had read about it in the newspapers anddrawn the attention of the police officers interrogating him to thenews items. Even assuming that the duty to give reasons doesnot include the duty to give reasons at the time of arrest, thereasons must be given at the first reasonable opportunity:Mallawarachchi v. Seneviratnem; Elasinghe v. Wijewickramaand Others(391; Chandra Kalyanie Perera v. Siriwardena{*° Lalanieand Nirmala v. De Silva and Others1*". In my view, there wasa failure in this case to give reasons at the first reasonableopportunity.
The Alleged Violation of Article 13 (2) of the Constitution.The petitioner was granted leave to proceed for the allegedviolation of Mr. Cooray’s rights declared and recognized by Article 13(2) of the Constitution.
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Article 13 (2) states as follows: 'Every person held in custody,detained or otherwise deprived of personal liberty shall be broughtbefore the judge of the nearest competent court according toprocedure established by law, and shall not be further held incustody, detained or deprived of presonal liberty except upon and interms of the order of such judge made in accordance with procedureestablished by law.”
This Court has over and over again referred to that as a ‘salutaryprovision to ensure the safety and protection of arrested persons':See the decisions cited in Channa Pieris v. Attorney-General, (Supra)at p. 75.
It was not in dispute that Mr. Cooray had not been brought beforea judge after his arrest. Mr. De Silva submitted that Mr. Cooray hadbeen detained on a Detention Order made by the Secretary underRegulation 17 (1) of the Emergency Regulations and that thereforethere was no obligation to produce him before a judge. He cited thefollowing observations of Kulatunga, J. in Wickremabandu v. CyrilHerath (Supra) in support of his submission: 'If as I have shown,rights under Article 13 (1) and (2) may be restricted by regulation inthe interest of national security or public order, the next question iswhether the provisions of Regulation 17 (1), (2) and (3) which bynecessary implication deny the right of the detenu to be broughtbefore a judge of a competent court or the provisions of Regulations17 (4) and (5) would result in a “denial" of his rights under Article 13(1) and (2) which is not permitted by Article 15 (7)."
If, as Article 15 (7) no doubt permits, the exercise and operation ofthe rights under Article 13 (2) may be restricted by regulations madeunder the law relating to public security, ‘the next question”, in myview, is whether there are such regulations restricting the rightsdeclared and recognized by Article 13 (2) of a person arrested on anOrder of Detention issued by the Secretary by virtue his powersunder Regulation 17 (1). There were no such restrictions imposed bythe Regulations of 1989 which were applicable to the decision inWickremabandu (1990); nor are any such restrictions to be found inthe Emergency Regulations made on 04 November 1994 underwhich the Order of Detention was issued in the matter before us.
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(There are some differences between the provisions of Regulation 17of 1989 and 1994; but for the purposes of considering the dictum ofKulatunga, J. it is not necessary to go into those matters in detail).
Learned counsel for the respondents, citing the judgment ofKulatunga, J. in Wickremabandu v. Herath and Others (Supra),submitted that the right of Mr. Cooray to be produced before a judgein terms of Article 13 (2) of the Constitution had been taken away.Kulatunga, J. said nothing to support such a proposition. What he didsay. (see pages 379-380) was that the regulations applicable at therelevant time had not taken away the right of a person detained underregulation 18 of the Emergency Regulations to be brought before ajudge.
This is also the position today under the Regulations applicable tothe case before us.
Kulatunga, J. however, did say (see page 379) that in terms of thedecision in Edirisuriya v. Navaratnani*21, "the right of an arrestedperson could be taken away". Kulatunga, J. himself, however,seemed to be of the view, (see pages 380 and 381) and with thatview, I respectfully, agree, that although restrictions could beimposed by regulations, there could be no denial by suchregulations. However, Edirisuriya v. Navaratnam did not state that "theright of an arrested person could be taken away". Kulatunga, J.quotes the following words of Wanasundera, J. in that caseimmediately before his interpretation of the decision in that case:
“If it is intended to restrict the requirement of 13 (2) – whichundoubtedly can be done by a suitable wording of the regulation soas to have a direct impact on Article 13 (2) itself, when nationalsecurity or public order demands it – this must be specifically done.Article 13 (2) cannot be restricted without a specific reference to it.But this has not been done. Instead, we have a restriction imposedon the operation of sections 36-38 of the Code. In the result, theconstitutional requirement that a detained person "shall be broughtbefore the judge of the nearest competent court" remains unaffected.Though it will continue to exist in a truncated form still being aconstitutional requirement: it must be complied with in a reasonableway within a reasonable time."
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Regulation 19 (1) states that the operation of sections 36, 37 and38 of the Code of Criminal Procedure Act shall not apply to and inrelation to any person arrested under Regulation 18. This does notmean that the procedures set out in sections 36, 37 and 38 of theCode have been repealed with regard to arrests made underRegulation 18. Even with regard to arrests made under thatregulation, the provisions of sections 36-38 of the Code “must becomplied with in a reasonable way within a reasonable time":Edirisuriya v. Navaratnam (Supra). What is a "reasonable way" and a“reasonable time" is a matter for the Court to decide in thecircumstances of a particular case. Moreover, where, in the opinion ofthe Court, a purported arrest under Regulation 18 cannot in lawhave been made under that Regulation, sections 36, 37 and 38 of theCode would be applicable.
In Channa Pieris v. Attorney-General, (Supra) at p. 102-104 theCourt found that the petitioners could not have been arrested underRegulations 17 or 18, because there were no reasonable grounds,and that therefore the provisions of the Code of Criminal Procedurewere applicable. In the circumstances, the failure to produce thepetitioners before a judge within a reasonable time and not later thantwenty-four hours was in violation of the procedure established by theCode, and consequently, a violation of Article 13 (2) of theConstitution. The Court said (at pp. 103-104): “Even if a person hasbeen incarcerated following a procedure established by law, thatdoes not completely terminate his or her right to liberty. That is a verybasic and fundamental principle enshrined in the Constitution andsupported by reason and abundant precedent. In the matters beforeus, the petitioners were not arrested under a procedure establishedby law; they were arrested on grounds of vague suspicion, incircumstances that showed a reckless disregard for their right topersonal liberty, so that their right to be brought before a judge wasparticularly urgent. In failing to comply with the salutary provisionrelating to the production of the petitioners before a judge of thenearest competent court in this way, the respondents transgressedthe rights conferred on them by Article 13 (2) of the Constitution."
In Kumara v. Rohan Fernando and Others'*3*, the respondentsstated that the petitioner had been arrested under Regulation 18(1)
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for violating regulations 45 and 46. Regulation 45 created no offence.Regulation 46 created an offence, but in terms of the respondents’affidavits, the arrests had nothing to do with that offence. The Courtheld that in the circumstances the arrests were not made inaccordance with the procedure prescribed by Regulation 18 (1).Perera, J. said: "The suspension of the operation of the provisions ofthe Code of Criminal Procedure is conditional upon the person beingarrested under Regulation 18. Where a person is not arrested andkept arrested in pursuance of Regulation 18, Regulation 19 has noapplicability. In such a case, the procedure established by law for thepurposes of Article 13 (2) of the Constitution is the procedureprescribed by section 37 of the Code of Criminal Procedure."Accordingly, it was held that the failure to produce the petitionerbefore a magistrate within a reasonable time but not exceedingtwenty-four hours, was a violation of Article 13 (2) of the Constitution.
In Ansalin Fernando v. Sarath Perera and Others'*4', where aperson was purported to have been arrested under Regulation 18 (1)although the ground for arrest was murder. Kulatunga, J. said thatmurder "as such” was not an offence under the EmergencyRegulations and that therefore "it was an offence in respect of whichan arrest can only be made under section 23 of the Code of CriminalProcedure in which event the suspect has to be produced before aMagistrate in terms of section 36 and within section 37 of the Code.”
The question remains whether the rights declared and recognizedby Article 13 (2) were, as suggested by Kulatunga, J. inWickramabandu (Supra) at p.380 (see also Weerakoon v.MahendraWS); Fernando v. Kapilaratnem, taken away by "necessaryimplication" by the provisions of Regulation 17 (1), (3) – earlier (2) -and (4) – earlier (3). Regulation 17 (1) empowers the Secretary, if heis satisfied – earlier "if he was of opinion" (I have already adverted tothis matter) – that in order to prevent a person from acting in one ormore of the ways specified it is necessary to do so, to order thedetention of that person. Regulation 17 (3) authorizes any policeofficer or member of the armed forces to carry into effect an ordermade under Regulation 17 (1). Regulation 17 (4) provides that anyperson so detained shall be deemed to be in lawful custody and shallbe detained at a place authorized by the Secretary (earlier, theInspector-General of Police).
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With great respect, why, as a matter of 'necessary implication’, dothose regulations take away the right of a person arrested to beproduced before a judge? In my view, the supposed restriction isneither involved in what is expressed in the sub-paragraphs ofregulation 17 of the 1989 regulations referred to by Kulatunga, J., norin the corresponding sub-paragraphs of the Regulations applicableto the matter before us.
If restrictions are to be made on fundamental rights, they can onlyrest on the authority of a law plainly expressed by Parliament, or inregulations made under the law for the time being relating to publicsecurity. Such rights cannot be swept away by "implication" … Why?Because the Constitution state in Article 15 (7) that restrictions on theexercise and operation of fundamental rights declared andrecognized by Article 13(1) and 13 (2) may only be those prescribedby taw. “Constitutional guarantees cannot be removed or modifiedexcept in accordance with the Constitution. That, I believe, is aproposition that commends itself to general acceptance. I believe it isstill a well-established and universally conceded principle. One mightsay that it is axiomatic": Channa Pieris, (Supra) at p. 81. As judges,we have our duties cut out for us: As an organ of government, theConstitutional duty imposed on the judiciary by Article 4 (d) of theConstitution is to respect, secure and advance fundamental rights. InWickramabandu, (Supra) at pp. 379-380, Kulatunga, J. states: “Therestriction of the requirement to produce the detenu before aMagistrate is presumably in consequence of policy and not onaccount of any absolute right to production." The right, as a matter ofpolicy, may be restricted, but it has not been done. As Wanasundera,J. observed in Edirisuriya v. Navaratnam, (Supra): “If it is intended torestrict the requirement of 13 (2) … this must be specifically done.Article 13 (2) cannot be restricted without a specific reference to it.But this has not been done … In the result, the Constitutionalrequirement that a detained person shall be brought before the judgeof the nearest competent court remains unaffected TheConstitutional right to be produced remains “untouched”, as G. P. S.de Silva, J. (as he then was) observed in Joseph Silva and Others v.Balasuriya and Others'*’'. What has been done is to suspend theoperation of sections 36, 37 and 38 in respect of persons arrestedunder Regulation 18. Therefore, although a person must be brought
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before a Judge, he may be brought within a reasonable time,although that may be in excess of the twenty-four hour limitprescribed by section 37 of the Code of Criminal Procedure. If suchrights are to be restricted, that, in the homely words of a plain man,is not our business, for policy is not within our purview.
Whereas the 1989 regulations empowered the Secretary to orderthe taking into custody and the detention of a person, the current(1994) regulations go on to qualify that power by stating that theSecretary may make order that the person be taken into custody anddetained “for a period not exceeding three months and any suchorder may be extended from time to time for a period not exceedingthree months at a time. Provided however that no person shall be sodetained upon an order under this regulation for a period exceedingone year. The period of detention of such person may be extended ifsuch person is produced before a magistrate prior to the expiration ofhis period of detention, accompanied by a report from the Secretarysetting out the facts upon which the person is detained and thereasons which necessitate the extension of such period of detention.Where the magistrate is satisfied that there are reasonable grounds forextending the period of detention of such person he may make orderthat such person be detained for a further period of time as specified insuch order, which period should not exceed three months and may beextended by the magistrate from time to time.’ The following newsubsection (2) was added in the 1994 Regulations (resulting in therenumbering of the subsections referred to above): ‘Where a person isproduced before a magistrate in compliance with the provisions ofparagraph (1) the magistrate shall examine the material placed by theSecretary in his report. The report shall be prima facie evidence of itscontents. The Secretary shall not be required to be present or calledupon to testify before the Magistrate.’
Mr. De Silva submitted that the "procedure established by law” inthe case of a person arrested and detained on an order made by theSecretary under Regulation 17 (1) was the procedure prescribed inRegulations (1) and (2). Consequently, such a person need not bebrought before a magistrate unless and until it became necessary toextend the period of detention beyond one year.
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I am unable to accept that submission: the provisions introduced in1994 were, in my view, intended to impose certain restrictions on theexercise of the power of arrest and detention conferred by regulation17 {1) on the Secretary: the Secretary, in the first place, wasempowered to make an order which had to specify the period ofdetention. (As we have seen, the Secretary failed to do so, but whenhe realized that he had issued a defective order, he issued anamending order.) The Secretary is permitted to extend the orders fromtime to time for a period not exceeding three months at a time. Thatprovision has the effect of compelling the Secretary to keep the matterof a detention under review so that if at any time he was satisfied thatthe detention was no longer warranted, he could order the release ofthe person imprisoned. (In this case the Secretary on the 3rd of July1997 wrote to the Director of the National Intelligence Bureau asfollows with regard to the orders he had issued in respect ofMr. Cooray and three other persons: "The Detention Orders have beenissued for a period of three months. But the question of continueddetention has to be kept under constant review. I would therefore liketo have a fortnightly report on the progress of investigations into allthese four Detention Orders, the first such report to be receivedpreferably by Thursday 10th July 1997. Please make a note to sendregular reports on the above basis thereafter.") The new provisionslimit to one year the period of detention which the Secretary couldeventually order. If in his opinion further detention is required, thatmust be upon the order of a magistrate to whom the Secretary mustsubmit a report and before whom he must produce the persondetained. The procedure established by those provisions relate to thequestion of the extension of a person’s period of detention beyonda year and not with the procedure established by law for producing aperson before a judge in accordance with the requirements of Article13 (2) of the Constitution.
The purposes contemplated by Article 13 (2) are altogetherdifferent. The scheme of the ordinary criminal law (e.g. see sections32. 33, 35, 36, 37. 54, 58, 116 Code of Criminal Procedure) is thatany person who is arrested should be brought before a neutralperson – a judge – without unnecessary delay, so that such a personmay apply his ‘judicial mind’ to the information placed before him and
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make an impartial determination of what course of action isappropriate in the light of the law applicable to the case: ChannaPieris v. Attorney-General, (Supra) at pp. 75-76 citing Sharvananda,Fundamental Rights at p. 142; Gerstein v. Pughm the decisions ofthe European Court on Human Rights reported in Vincent Berger'sCase Law of the European Court of Human Rights in theSchlesser case, ECHR Decision on 04.12.79, the Skoogstrom case,ECHR Decision on 02.10.84 the McGoff case, ECHR Decision on26.10.84; and per Goonewardene, J. in Mohammed Faiz v. Attorney-General. The right to be brought before a judge recognized by theCode of Criminal Procedure was elevated to the status of afundamental right. It happened in this way: The makers of the IndianConstitution were under pressure from certain groups to provide for“due process" in order to secure the personal liberty of citizens.When the Indian Constitutional Adviser, Sir B. N. Rau consultedJustice Frankfurter of the United States Supreme Court on the matter,he was advised to use the phrase "procedure established by law”,because the phrase “due process" was imprecise, although in thecontext of the USA, by judicial interpretation over a century, theprinciples had become well established. The proposal of the IndianDrafting Committee to follow this advice was not enthusiasticallyreceived. As a compromise, it was decided, in the words ofDr. Ambedkar in his speech to the Constituent Assembly on September15, 1949, to provide for “the substance of due process". This wasdone, as Dr. Ambedkar explained by “lift(ing) from the provisions ofthe Criminal Procedure Code two of the most fundamental principleswhich every civilized country follows as principles of internationaljustice." The two principles were the right to be informed of thereasons for arrest and the right to be produced before a judge inaccordance with procedure established by law. Dr. Ambedkar said:“It is quite true that these two provisions … are already to be found inthe Criminal Procedure Code and therefore probably it might be saidthat we are really not making any fundamental change. But we are,as I contend, making a fundamental change because what we aredoing by the introduction of Article 15 A is to put a limitation upon theauthority both of Parliament as well as of the Provincial Legislaturenot to abrogate these provisions because they are now introduced inour Constitution itself. It is quite true that the enthusiasts for personal
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liberty are probably not content with the provisions of clause (1) and(2). They probably want something more by way of furthersafeguards against the inroads of the executive and the legislatureupon the personal liberty of the citizen. I personally think that while Isympathize with them that probably this Article might have beenexpanded to include some further safeguards. I am quite satisfiedthat the provisions contained in Article 15 A are sufficient againstillegal or arbitrary arrests." Article 13(1) and 13(2) broadly followedthe Indian model. The right to be produced before a judge, asWanasundera. J. observed in Edirisuriya v. Navaratnam, (Supra), "ismore than a mere formality or an empty ritual, but is recognized by allcommunities committed to the Rule of Law as an essentialcomponent of human rights and fundamental freedoms", and it“behoves us therefore to see that provisions such as this,safeguarding human rights and freedoms, are exactly compliedwith." In Nallanayagam v. Gunatiiakem, Colin Thome, J. said: "Article13 (2) embodies a salutary principle safeguarding the life and libertyof the subject and must be exactly complied with by the executive. Inour view this provision cannot be overlooked or dismissed as of littleconsequence or as a minor matter." in Brogan v. The UnitedKingdom (Supra), in considering Article 5 (3) of the EuropeanConvention – which deals with the right to be promptly producedbefore a judge – in the context of terrorist cases, stated that the Article“enshrines a fundamental human right, namely the protection of theindividual against arbitrary interferences by the State with his right toliberty." The Court said that “Judicial control of interferences by theexecutive with the individual’s right to liberty is an essential feature ofthe guarantee embodied in Article 5 (3) which is intended to minimizethe risk of arbitrariness." It stated that “Judicial control is impliedby the rule of law, one of the fundamental principles of a democraticsociety."
Neither the right to appeal to the Advisory Committee given byregulation 17, nor the fact that in terms of regulation 18 (6) there is aduty on the officer-in-charge of places of detention to ensure thatevery person detained therein, otherwise than by an order of aMagistrate, to produce such persons before a magistrate is what iscontemplated by Article 13 (2) of the Constitution.
sc
Sunil Rodrigo (on behalf of B. Sirisena Cooray) v.
Chandananda De Silva and Others (Amerasinghe, J.)
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A right granted by the Constitution can only be removed by theConstitution and not by any other law. And so, in India, Clause 3 (b)of Article 22 of the Constitution provides that the Constitutional rightto be produced before a judge is not available to a person who isarrested or detained under any law providing for preventivedetention. The makers of the Constitution of Sri Lanka, however,did not write such an exception into its Constitution. That isessentially a matter of policy. There is nothing intrinsically specialabout preventive detention that makes it necessary to dispensewith the requirement of production before a judge. Article 5.3 of theEuropean Convention for the Protection of Human Rights andFundamental Freedoms states that “Everyone arrested or detained inaccordance with the provisions of paragraph 1 (c) of this Articleshall be brought promptly before a judge …". Paragraph 1 (c) dealswith (1) the case of persons lawfully arrested or detained ‘forthe purpose of bringing him before the competent legal authorityon a reasonable suspicion of having committed an offence"; and(2) a case in which a person has been arrested and detained“when It is reasonably considered necessary to preventhis committing an offence or fleeing after having done so.” Theemphasis is mine.
Admittedly, Article 15 (7) permits the restriction of the operationand exercise of the rights guaranteed by Article 13 (2), in certainspecified circumstances, by law, including Emergency Regulations.Regulation 19 (1) states: "The provisions of sections 36, 37 and 38 ofthe Code of Criminal Procedure Act No. 15 of 1979 shall not applyto, and in relation to, any person arrested under Regulation 18."Mr. Cooray was ordered to be arrested and detained underRegulation 17. Sections 36 and 37 of the Code of CriminalProcedure therefore remain applicable to him. Those sectionsprescribe the procedure established by law that the officer carryingout the Secretary's order should have followed. Section 36 states: “Apeace officer making an arrest without warrant shall withoutunnecessary delay and subject to the provisions contained as to bailtake or send the person arrested before a Magistrate havingjurisdiction in the case." Section 37 states: "Any peace officer shallnot detain in custody or otherwise confine a person arrested without awarrant for a longer period than under all the circumstances of the
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case is reasonable, and such period shall not exceed twenty-fourhours exclusive of the time necessary for the journey from the placeof arrest to the Magistrate." Mr. Cooray has been in detention fromthe 16th of June 1997 without being brought before a magistrate. Thisis in violation of his fundamental right to be produced before a judgeof the nearest competent court guaranteed by Article 13 (2)of Constitution.
For the reasons set out in my judgment, I declare thatMr. Bulathsinghalage Sirisena Cooray’s fundamental rightsguaranteed by Article 13(1) and 13 (2) of the Constitution have beenviolated and that his arrest and detention is unlawful and illegal.
I direct the first respondent, the Secretary, Ministry of Defence, toforthwith order the release of the said Mr. Bulathsinghelage SirisenaCooray from custody and detention,
The State shall pay the said Mr. Bulathsinhalage Sirisena Cooray asum of Rs. 200,000/- as compensation and costs.
WUETUNGA, J. -1 agree.
GUNAWARDENA, J. -1 agree.
Relief granted.