WEERAWANSA v. THE ATTORNEY-GENERAL AND OTHERS

029-SLLR-SLLR-2000-V-1-WEERAWANSA-v.-THE-ATTORNEY-GENERAL-AND-OTHERS.pdf


WEERAWANSA
v.
THE ATTORNEY-GENERAL AND OTHERS
SUPREME COURTFERNANDO, J.
AMERASINGHE. J. ANDDHEERARATNE, J.
SC APPLICATION No. 730/9626™ JUNE, 2000
Fundamental rights – Prevention of Terrorism (Temporary Provisions) Act,(PTA) – Arrest and detention oj a person by a police officer for “unlawjulactivity" – Sections 6(1) and 7(1) of the Act – Detention by order of theMinister – Section 9(1) of the Act – Pre-conditions for a valid arrest anddetention – Arrest under section 127 of the Customs Ordinance – Remandof the suspect by a Magistrate – Circumstances in which the remand orderwould not constitute “judicial action" – Articles 13(1) and 13(2) of theConstitution.
On 04.03.96, the 2nd respondent (DIG – CID) reported to the Director -CID regarding investigations into alleged malpractices in the Port ofColombo, in particular, the removal of containers from the Port on forgeddocuments with the connivance of customs officers. The report statedthat there was information which had been checked that certainsuspects had smuggled sophisticated weapons and a dismantled aircraft for the use of the LTTE. However, there was no comparative recordof any such information.
On 18.03.96, the 7th respondent (Director – General of Customs) sentthe petitoner and three other officers on compulsory leave withoutassigning any reason.
On 23.04.96, the CID arrested one Hasheem who stated that he was animporter of textiles and other merchandise and made payments tocustoms officers including the petitioner anc* removed containers fromthe Port on forged documents. He denied that there were any weapons oraircraft parts in those containers.
Pursuant to Hasheem's statement. Chief Inspector Mayadunne actingon the 2nd respondent's instructions arrested the petitioner on 30.04.96
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for unlawful activity claiming to act under section 6( 1) of the Preventionof Terrorism (Temporary Provisions) Act ("the PTA"). Thereafter thepetitioner was detained in the C1D from 30.04.96 to 02.05.96 withoutbeing produced before a Magistrate.
On 02.05.96, the 2nd respondent applied to the Minister of Defence for adetention order under section 9(1) of the PTA stating that the petitionerwas suspected of unlawful activity, to wit, aiding and abetting illegalimportation of military hardwere and light aircraft parts to Sri Lanka andclearing the suspected container. However, no material whatsoever wasplaced before the Minister to support the 2nd respondent’s conclusion. Hesuppressed the only material facts he had (namely, the report dated
and Hasheem's statement) which would have disclosed thefalsity of his claim. The Minister issued a detention order on the same dayordering that the petitioner be detained for three months at the CID onthe ground that she had reason to suspect that he was concernedin unlawful activity be aiding and abeLting the illegal importation ofexposives to Sri Lanka.
When the detention order dated 02.05.96 expired, the 2nd respondentapplied to the Minister for an extention of that order. By her order dated
the Minister extended it for a further period of three months.The order states that it was made having reviewed all the facts placedbefore the Minister. That order was made in respect of about 20 personsspecified in the schedule thereto; and the 2nd respondent did not evenproduce the application for the extention or the facts said to have beenplaced before the Minister.
On 02.10.96, when the CID knew that there was no justification forthe petitioner’s detention, they produced him before the 4Ul respondent(Deputy Director of Customs) on the ground that the petitioner wasconcerned in a large scale revenue fraud. The 4th respondent tookthe petitioner into custody and had his statement recorded. Therewas no material to warrant the suspicion that the petitioner wasconcerned in a revenue fraud. The 2nd respondent also did not notifythe petitioner’s arrest, detention or his transfer to another place ofdetention to the Human Rights Commission as required by section 28 ofthe of Human Rights Commission of Sri Lanka (The HRC) Act, No. 21 of1996 which came into operation on 21.08.96. The petitioner was alsonot informed by the 4th respondent of the reason for being taken to
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custody. The petitioner had been warded at the National Hospital ashe was ill, from where he was removed by the CID for productionto customs. After recording the petitioner’s statement he was takenback to the National Hospital.
On 03.10.96, while the detention order under section 9(1) of the PTA wasstill in force the 4th respondent instructed the Customs ProsecutingOfficer to produce the petitioner before the Magistrate under section127A of the Customs Ordinance. The 4th respondent claimed in hisaffidavit that the petitioner was produced before the Magistrate butthe court record shows that he was not produced. The petitioner waswarded at the National Hospital: and the Magistrate ordered prisonguards to take charge of the petitioner and made several remand ordersuntil 31.12.96 without the petitioner being produced before him. Nordid the Magistrate visit him or arrange for an acting Magistrate tovisit him.
Held :
In respect of the petitioner’s arrest on 30.04.96. no reasonablesuspicion of unlawful activity arose either on the basis of the 2ndrespondent's report dated 04.03.96 or on the basis of Hasheem'sstatement dated 30.04.96. Hence the purported arrest directedby the 2nd respondent was not in accordance with section 6(1)of the PTA and violative of the petitioner’s right under Article13(1).
As the petitioner had not been arrested in accordance with section6( 1) of the PTA, the CID had no right to keep him in custody withoutproducing him before a Magistrate, in terms of section 7(1): hencethe petitioner’s fundamental right under Article 13(2) was infringedby the 2nd respondent.
The detention order dated 02.05.96 made by the Ministerunder section 9(1) and the petitioner's detention thereunder wereunlawful and invalid in that (a) no material was placed justifyingreasonable suspicion of unlawful activity and (b) the order wasmade on the ground that the petitioner was concerned in the illegalimportation of explosives in respect of which there was no materialat all. Hence the petitioner’s detention was in breach of Article 13(2)for which infringement the State is liable.
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Per Fernando. J.
“The Minister did not independently exercise her statutorydiscretion, either upon personal knowledge or credible information.She merely adopted the 2nd respondent's opinion. That was a patentabdication of discretion".
Per Fernando, J.
“Not only must the Minister of Defence subjectively have therequired belief or suspicion, but there must also be objectively,‘reason’ for such belief.
(a) The extension of the detention order on 01.08.96 and Lhepetitioner's detention thereunder uplo 02.10.96. were unlawfuland invalid in that the extention was granted without consideringwhether there was in fact reason to further deprive the petitioner ofhis liberty; hence the detention was in breach of Article 13(2). forwhich infringement the State is liable.
(b) If a detention order under section 9( 1) is obtained within 72 hours
of arrest, non-production before a judicial officer is excused bysection 7(1). Otherwise the suspect who is detained under suchorder should be produced before a judicial officer after suchdetention, which is a safeguard which the PTA has not taken away.Such production is also required by Article 9 of the InternationalCovenant on Civil and Political Rights (ICCPR) (as well as theFirst Optional Protocol) to which Sri Lanka is a party and whichshould be respected in terms of Article 27(15) of the Constitution.Since the petitoner was never brought before a judicial officerduring the entire period of detention, his fundamental rightunder Article 13(2) was infringed for which infringement the Stateis liable.
The 4th respondent took the petitioner to customs custody on
without entertaining a reasonable suspicion that thepetitioner was concerned in any offence and without informingthe reason for the deprivation of his personal liberty. The 2nd
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respondent failed to notify the HRC of the fact of the transfer of thepetitioner’s detention to customs on 02.10.96. The 2nd and the 4threspondents thereby infringed the petitioner’s fundamental rightunder Article 13(1).
The order made by the Magistrate on 03.10.96 before the detentionorder made under the PTA had expired and the remand order madeby the Magistrate in the absence of the petitioner were vitiated bya patent want of jurisdiction and did not constitute “judicial acts"which precluded relief under Article 126. It was the executivewhich had the custody of the petitioner from 03.10.96 and so thepetitioner’s detention was by “executive or administrative action”not sanctioned by a judicial act. Such detention was in violationof the petitioner's fundamental right under Article 13(2) for whichthe State is liable.
Cases referred to :
Channa Pieris v. A. G. (1994) 1 Sri LR 1. 55.
Wickremabandu v. Herath (1990) 2 Sri LR 384, 355. 365.
Rodrigo v. de Silva (1997) 3 Sri LR 265, 299-
Edirisuriya v. Nauaratnam (1985) 1 Sri LR 100.
Nallanayagam u. Gunatilake (19879 1 Sri LR 293.
Ekanayake v. Herath Banda SC 25/91 SCM 18.12.91.
W. K. Nihal v. Kotalawela SC 126/94 SCM 6.10.94.
Kumarasinghe u. A, G. SC 54/82 SCM 6.9.82.
Jayathevan u. A. G. (1992) 2 Sri LR 356. 371.
Farook v. Raymond (1996) 1 Sri LR 217.
Dayananda v. Weerasinghe (1983) 2 FRD 291.
Leo Fernando v. A. G. (1985) 2 Sri LR 341.
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Sirros u. Moore (1974) 1 All ER 776. 785.
Sriyawathie u. Shiva Pasupati SC 112/86 SCM 28.4.87.
Joseph Pen-era v. A. G. (1992) 1 Sri LR 199.
APPLICATION for relief for infringnient of fundamental rights.
T. J. Marapana, P. C. with Jayantha Fernando and P. H. Ranatunga forpetitioner.
S.Rajaratnam, SSC for the 1st to 7th respondents.
Cur. cidu. vull.
August 03. 2000FERNANDO, J.
The Petitioner is an Assistant Superintendent ofCustoms. He complains that his fundamental rightsunder Articles 13(1) and (2) were infringed by reason of (I) hisarrest on 30.4.96 by the CID purporting to act under section6(1) of the Prevention of Terrorism (Temporary Provisions)Act, No. 48 of 1979 (the"PTA"), (II) his detention from 30.4.96to 2.5.96 under section 7(1) of the PTA, and from 2.5.96to 2.10.96 under two detention orders purportedlymade under section 9(1) of the PTA, (III) his transfer into thecustody of the Customs on 2.10.96, and (IV) his detentionfrom 3.10.96 to 31.12.96 under a purported Magisterialremand order.
PREVENTION OF TERRORISM (TEMPORARY PROVISIONS) ACT
The relevant provisions of the PTA are as follows:
“6. (1) Any police officer not below the rank of Superintendentor any other police officer not below the rank of Sub-Inspectorauthorized in writing by him in that behalf may, without a
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warrant and with or without assistance and notwithstandinganything in any other law to the contrary –
arrest any person;
enter and search any premises;
stop and search any individual or any vehicle, vessel,train or aircraft; and
seize any document or. thing,
connected with or concerned in or reasonably suspectedof being connected with or concerned in any unlawfulactivity . . .
(1) Any person arrested under subsection (1) of section 6may be kept in custody for a period not exceeding seventytwo hours and shall, unless a detention order under section 9has been made in respect of such person, be producedbefore a Magistrate before the expiiy of such period and theMagistrate shall, on an application made in writing in thatbehalf by a police officer not below the rank of Superintendent,make order that such person shall be remanded until theconclusion of the trial of such person:
Provided that, where the Attorney-General consents tothe release of such person from custody before the conclusionof the trial, the Magistrate shall release such personfrom custody.
(2) Where any person connected with or concerned in orreasonably suspected to be connected with or concerned inthe commission of any offence under this act appears or is
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produced before any court other than in the mannerreferred to in subsection (1). such court shallorder the remandof such person until the conclusion of the trial: providedthat . . .
(i) Where the Minister has reason to believe or suspect thatany person is connected with or concerned in any unlawfulactivity, the Minister may order that such person be detainedfor a period not exceeding three months in the first instance,in such place and subject to such conditions as may bedetermined by the Minister, and any such order may beextended from time to time for a period not exceeding threemonths at a time . . [emphasis added]
Articles 13(1) and 13(2) provide two valuable safeguardseach: that a person rhay be arrested only "according toprocedure established by law", and must be told the reasonfor arrest: and that a person deprived of liberty must bebrought before the judge of the nearest competent, courtaccording to procedure established by law, and must not befurther deprived of liberty, except upon and in terms of theorder of such judge made in accordance with procedureestablished by law.
The procedure for arrest established by section 6(1) isnot significantly different to the procedure established bylaw for arrest for other offences, and does not dispensewith the need to give reasons. However, sections 7(1) and 9( 1)authorise detention by the executive without a prior judicialorder and for longer periods than under the general law(but those provisions did not expressly dispense with theneed to bring a detainee before a judge). When the PTA Bill
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was referred to this Couit, the Court did not have to decidewhether or not any of those provisions constituted reasonablerestrictions on Articles 12(1), 13(1) and 13(2), permittedby Article 15(7) (in the interests of national security,etc), because the Court was informed that it had beendecided to pass the Bill with a two-thirds majority (SC SDNo. 7/79, 17.7.79). The PTA was enacted-with a two-thirdsmajority, and accordingly, in terms of Article 84, the PTAbecame law despite any inconsistency with the Constitutionalprovisions.
1 have therefore to consider whether the Petitioner'sarrest was “in accordance with procedure established bylaw", namely by section 6(1), and whether he was informedof the reason for arrest; and also whether his detention wasin accordance with Article 13(2), read with sections 7(1)and 9(1).
1. ARREST ON 30.4.96
The C1D had been investigating allegations of malpracticesin the Port of Colombo relating to imports – in particular,that containers were being taken out of the Port onforged documents with the connivance of Customs officers. On
the 2nd Respondent (DIG, C1D) reported to the Director,CID, that :
“ Reliable information has been received that the suspectsinvolved in the smuggling of containerized cargo hadsmuggled into the country, alarge number of sophisticatedweapons and a dismantled aircraft for tire use of theLTTE.
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2. This informant has given me credible informationearlier which when checked were found to be correct.Hence all efforts should be taken to interrogate thepersons involved in these illegal operations to unearthmaterial owing to the security risk involved beside thecolossal loss of revenue to the Government." (emphasisadded]
1 will assume that the 2nd Respondent did in fact receivesome information from an informant. However, it is clearthat his report was not a contemporaneous record of thatinformation, butonly a summary which he made subsequently.At no stage did he produce a contemporaneous record(withholding, as he was entitled to, the name of the informant).In the affidavit which the 2nd Respondent filed inthese proceedings he did not assert that the “suspects" or “thepersons involved” included the Petitioner; he stated that hehad directed investigations, and thatseveral persons includingCustoms officials had been interrogated – but not the Petitioner.The "information” had been received just five weeks afterthe Centra] Bank bomb explosion, and if it had actuallyimplicated the Petitioner it would have been a seriousdereliction of duty for the 2"d Respondent to have delayedquestioning him for eight weeks.
Thus we do not know what exactly the informant didtell the 2nd Respondent. It is very likely that the informantdid not implicate the petitioner, and I hold that at thatstage the 2nd Respondent had no reason to suspect, and didnot suspect, the Petitioner of any offence.
By letter dated 18.3.96 the 7th Respondent, theDirector-General of Customs, sent the Petitioner (and three
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others) on compulsory leave, without stating any reason.The Petitioner and the other three officers submitted appealsdated 27.3.96 and 8.4.96, but received no response. The7lh Respondent has not filed an affidavit explaining thereason for that order nor has he produced the documentswhich led him to make it. I have therefore no reason to thinkthat that order was based on a suspicion that the Petitionerwas guilty of any offence. The 2nd Respondent did not rely onthat order.
On 23.4.96, the C1D arrested one Hasheem, aliasNazeer, for “forging Customs documents and illegalimportation of containers into Sri Lanka which are suspectedto have contained military hardware". No material hasbeen placed before us which justified any 'suspicionthat Hasheem was involved in the importation of militaryhardware".
That there was a link between Hasheem and the Petitioneris not disputed. The Petitioner acknowledged that Hasheemwas one of his informants, and that on several occasionsHasheem had given him information which had led to successfuldetections.
Hasheem made two statements, on 23.4.96 and 25.4.96.He confirmed that he had given information to the Petitioner.He stated that he was an importer of textiles and othermerchandise, and that he had made payments to certainCustoms Officers, including the Petitioner, in connectionwith the removal of containers from the Port on forgeddocuments. However, he denied the allegation that therehad been any weapons or aircraft parts in any of thosecontainers.
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Claiming to act under section 6(1) of the PTA. ChiefInspector Mudannayake (on the 2nd Respondent's instructions)arrested the Petitioner at the CID office at 4.00 p. m. on
He made an entry that the charges against thePetitioner were explained as being aiding and abettingthe illegal importation of containers into Sri Lanka andtheir release from the Port on forged documents, therebeing information that some of the items in those containerswere weapons and light aircraft parts. Those chargescontained three distinct elements: that containers hadbeen illegally imported, that they had been released onforged documents, and that they had contained weapons,etc. Only the third could have been termed a "PTA offence".However, in his affidavit in these proceedings, Mudannayakeaverred that the arrest was because “he was suspectedof aiding and abetting the illegal import of containerscontaining explosives and light aircraft parts" – i. e. onaccount of the “PTA offence" alone. He made no mention ofthe release of containers. The 2nd Respondent's affidavitwas to the same effect, except that he made no mention ofexplosives.
The 2nd Respondent’s affidavit confirms that it wasonly after Hasheem’s "disclosures” that the Petitioner wasasked to report to the CID on 30.4.96. His own summaryof Hasheem’s “disclosures” was as follows: Hasheem “wasable to import illegally several containers of merchandisewith the connivance and assistance of the Petitioner andsome others”: “some containers which arrived at theColombo Harbour had been cleared illegally with theconnivance of sorpe Customs officials”: and “the contentsof these containers are unknown”. However, he added:
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“There was reasonable information that containerloads of arms and ammunition and light aircraft partshave surreptitiously reached the L. T. T. E. after arrivingat the Colombo Harbour." [emphasis added]
No details were given about that “information”. Whenquestioned, Hasheem had denied that particular allegation,and it was unreasonable to have believed or suspected fromhis statements that the Petitioner was connected withor concerned in any “unlawful activity" as defined in the PTA.The Respondents did not produce any other material tosupport that allegation.
It is probable that the Petitioner was told the reason forarrest, namely that he was suspected of “unlawful activity”.However, neither the alleged informant’s disclosures on 4.3.96nor Hasheem’s statements gave rise to a reasonable suspicionof “unlawful activity". I hold that the Petitioner’s arrest wasnot in accordance with the procedure established by law(i. e. section 6(1) of the PTA), and that the 2nd Respondentprocured the infringement of his fundamental right underArticle 13(1).
Possibly, Hasheem’s statements to the CID mayhave given rise to a suspicion that the Petitioner was involvedin the illegal import and removal of containers from the Port.
1 do not have to determine whether that was a reasonablesuspicion justifying an arrest on that basis because theaffidavits filed by the Respondents in this case establish thatthat was not the real reason for his arrest. In any event, anarrest on that basis would have required prompt productionbefore a Magistrate, and would not have justified detentionunder the PTA.
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H. DETENTION
(1) Detention under section 7(1)
The Petitioner was kept in CID custody, without beingpromptly produced before a Magistrate. The validity of hisdetention up to 2.5.96 depends on whether there wascompliance with section 7(1) of the PTA, which permits aperson “arrested under section 6(1)" to be kept in custody fora period not exceeding seventy two hours.
A “person arrested under section 6( 1)" necessarilymeans a person arrested because he was "connected withor concerned in or reasonably suspected of being connectedwith or concerned in any unlawful activity". That phrasedoes not include a person arrested for other reasons(e. g. under the Customs Ordinance), or for no reason: suchpersons will continue to enjoy the full protection of Article 13.A pre-requisite for detention under section 7(1) is a validand proper arrest under section 6(1): an arrest in conformitywith section 6(1), and not one which is contrary to that section,or which is only a pretended or purported arrest underthat section. "Under" in this context has the same meaningas “in pursuance of' which was similarly interpreted (inrelation to Emergency Regulations 18 and 19) by Amerasinghe,J, in ChannaPieris v. A. G.UI. In other words, while the generalrule is that all arrests and consequent detentions aresubject to the Constitutional safeguards in Article 13, theexception created by the PTA will apply only where thestipulated pre-condition of an arrest under section 6(1) exists.Those safeguards can never be circumvented by a falseassertion or a mere pretence that an arrest was under section6(1).
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I hold that the Petitioner was not arrested “under”section 6(1), but otherwise than in accordance withsection 6(1). Accordingly, the 2nd Respondent and theother CID officers did not have the right to keep him incustody in terms of section 7(1), but were obliged tocomply with Article 13(2). The Petitioner’s fundamentalright under Article 13(2) was thus infringed by the 2ndRespondent.
(2) Detention under section 9(1)
An arrested person must be produced before a Magistrate,before the period of seventy two hours allowed by section 7(1)comes to an end, unless a detention order has been made"under” section 9(1). Such an order can only be made if"the Minister has reason to believe or suspect that (such)person is connected with or concerned in any unlawfulactivity”. Not only must the Minister of Defence, subjectively,have the required belief or suspicion, but there must alsobe, objectively, "reason" for such belief. While Article 13(2)permits detention only upon a judicial order, section 9(1)allows a Ministerial order. However, being an order whichresults in a deprivation of liberty, it must be made with no lesscare and consideration.
The Minister's order does not depend on the validity ofthe preceding arrest and detention. Even if such arrest anddetention were invalid, nevertheless if at the time the detentionorder was made the Minister did have reason to believe orsuspect that the detainee was "connected with or concerned inany unlawful activity", the detention order and subsequentdetention would be lawful.
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By letter dated 2.5.96 the 2nd Respondent informed theMinister of Defence (who is H. E. the President) that thePetitioner had been taken into custody under section 6(1)of the PTA, and applied for a three-month detentionorder under section 9(1), claiming that:
“2. Investigations conducted by the C. 1. D. had revealedthat this person is suspected to be connected with or. concerned in unlawful activity to wit:
'Aided and abetted the illegal importation of militaryhardware and light aircraft parts to Sri Lanka byprocessing the documents portainting (sicl of the CustomsDepartment at the time of clearing the suspectedcontainer said to have been [sic] contained the send [sic]article [sic).
3. It is necessary to detain him further, with a viewto probe into his unlawful activities under the provisionsof the Prevention of Terrorism Act." [emphasis added]
He did not forward – or even mention – any information,statements or other material on which he based hisconclusions. Obviously, there was none. He thus deceivedthe Minister into believing that the CID investigationshad in fact revealed that the Petitioner was suspectedof involvement in unlawful activity. Furthermore, hesuppressed the only material facts which he had (namely,the report dated 4.3.96 and Hasheem’s statements),obviously because they would have disclosed to theMinister the falsity of his claims.
The Minister issued a detention order the same day, orderingthat the Petitioner be detained for three months at the
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CID office, on the ground that she had reason to suspectthat he was:
“connected with or concerned in unlawful activity to
wit:
‘Aided and abetted the illegal importation of explosivesto Sri Lanka by checking and processing the documentspertaining to the Customs Department at the time ofclearing the suspected Container said to have containedthe said explosives' ” [emphasis added)
Dealing with the question whether there was a reasonablesuspicion justifying arrest, Amerasinghe, J, held in Pieris v.A. C. [1994J 1 Sri LR 1that;
“A reasonable suspicion may be based either uponmatters within the officer’s knowledge or uponcredible information furnished to him, or a combinationof both sources. He may inform himself either by personalinvestigation or by adopting information supplied tohim or by doing both. A suspicion does not become‘reasonable’ merely because the source of the informationis creditworthy."
Those observations apply with much greater force to thequestion whether a detention order is valid on the basis thatthe Minister had “reason to suspect”, because, inter alia, adetention order drastically curtails personal liberty withoutthe protection of a judicial order and for much longer periods.A valid detention order requires the independent exerciseof the discretion conferred by section 9(1). Since the Ministerhad no personal knowledge of the facts, it was essential that
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she should have been supplied with “credible information".Where such information is contained in documents andstatements, those documents and statements must be madeavailable to the Minister. But I will assume for the purposes ofthis case that a correct summary of the relevant portions ofthose documents and statements, set out in a report made bya responsible officer, may sometimes give the Minister "reasonto suspect…” In this case even that did not happen. The 2ndRespondent merely informed the Minister of his conclusions.The detention order was therefore flawed. The Minister did notindependently exercise her statutory discretion, either uponpersonal knowledge or credible information: she merely adoptedthe 2nd Respondent's opinion. That was a patent abdication ofdiscretion. Further, even if 1 were to disregard all those flaws,the detention order would nevertheless be invalid because itwas founded wholly upon the 2nd Respondent's conclusionswhich were not merely mistaken but wilfully false, perverse,and unreasonable.
There is another unexplained feature in this case. In thedetention order the Minister made reference only to theabetment of the importation of explosiues, and made nomention of weapons and light aircraft parts. That means thatthe Minister did not believe or suspect that the Petitioner wasimplicated in the importation of weapons and light aircraftparts. But at that point of time there was no material at allpertaining to explosiues. The 2nd Respondent made no referenceto explosives at any stage; and neither did Mudannayake in thecontemporaneous entry he made on 30.4.96. It was only afterthis application was filed that Mudannayake fell into line withthe detention order by referring to explosives in his affidavit inthese proceedings. The detention order was flawed because
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there was no reason for the Minister to have any belief orsuspicion about explosives.
I hold that the detention order dated 2.5.96 and thePetitioner’s detention thereunder for three months wereunlawful and invalid, and in breach of Article 13(2), for whichinfringement the State is liable.
When that period of three months was coming to anend, according to the 2nd Respondent’s affidavit:
“As the investigations into this matter was concluded[sic], an application was made to the Minister of Defenceto extend the detention order served on the Petitioner.Accordingly, the Minister of Defence having reviewedthe facts placed before her, extended the Petitioner’sdetention by detention order dated l8t August 1996 issuedin terms of section 9(1) . . .’’ [emphasis added)
The affidavit had not another word about those “facts”.The Minister stated in that detention order:
"… having reviewed all the facts placed before me inrespect of each person, [1] do hereby extend the DetentionOrders issued in respect of the persons whose namesappear in the Schedule hereto for a period of three monthsfrom the dates mentioned against their names.” [emphasisadded)
About twenty persons were named in the schedule.The schedule referred to D. O. No. 1598 issued on 5.5.95,and D. O. No. 2024 issued on 4.5.96 – which suggests that427 detention orders had been issued in twelve months.
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The higher the number of such orders, the greater the care tobe exercised in regard to requests for. and the grant andextension of such orders.
In this instance, the Respondents have not even producedthe request for extension – let alone the "facts" said to havebeen placed before the Minister. It is very likely that nomaterial or report was submitted, and that the statement inthe detention order that the facts were reviewed was notcorrect. Without considering whether there was in fact anyreason further to deprive the Petitioner of his liberty (and if so,for how long, and on what conditions) a three-month extensionwas granted on request. Detention orders (includingextensions), whether under the PTA, or Emergency Regulations,or otherwise, should not be made mechanically (seeWickremabandu v. Herath121, Rodrigo v. de. Silva!3* and thedecisions cited in ChannaPieris at 57). One matterwhich shouldhave been considered was the Petitioner’s health. He was beingdetained at the C1D office. According to the 2nd Respondent,he fell ill during the month of June, "and was constantly takento a private medical clinic for treatment". It does not appearthat even his poor health – relevant both to the place and theperiod of future detention – was brought to the notice of theMinister.
I hold that the extension of the detention order on 1.8.96,and the Petitioner’s detention thereunder up to 2.10.96, wereunlawful and invalid, and in breach of Article 13(2) for whichinfringement the State is liable.
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The need for production before a Magistrate, notwithstanding
the issue of a detention order
As already noted, Article 13(2) provides two safeguards:first, that a person deprived of liberty must be brought beforea judicial officer, and second, that any further deprivation ofliberty can only be upon a judicial order. Section 9(1) expresslyauthorised such further deprivation of liberty upon anexecutive detention order, and thus nullified the secondsafeguard – and that is "law”, because the PTA was enactedwith a two-thirds majority.
However, I am satisfied that the PTA did not takeaway the first safeguard. That has to be considered inrelation to two periods: the period preceding the making ofan executive detention order that has been made, and thesubsequent period.
If no detention order is made, the detainee must beproduced before a judicial officer within seventy two hours ofarrest – the safeguard exists, although diluted (by section 7(1))to the extent that production within twenty four hours is notnecessaxy.
If a detention order is obtained within seventy twohours of arrest, non-production before a judicial officerduring that period is excused or ratified by section 7(1).
However, neither section 9(1), nor any other provisionof the PTA, dispenses with the need for such productionsubsequent to the making of an executive detention order.
To put in another way, a person detained under sucha detention order is “a person held in custody, detained
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or otherwise deprived of personal liberty"; the first safeguardin Article 13(2) is that he be brought before a judicialofficer; and the PTA makes no contrary or inconsistentprovision. That safeguard therefore continues undiluted.Accordingly, such non-production subsequent to thedetention order is not sanctioned by the procedure establishedby law.
It may perhaps be suggested that such production is“of little consequence or a minor matter", because ajudicial officer cannot order the release of the detainee.Nevertheless, it has been held that such production 'ismore than a mere formality or an empty ritual, but isrecognized by all communities committed to the Rule ofLaw as an essential component of human rights andfundamental freedoms”, and “must be exactly compliedwith by the executive” (see Edirisuriya v Nauaratnam.141Nallanayagam u GunatilakeJ51 and Rodrigo v de Silua, at323-5). That safeguard serves many important purposes.A judicial office]'would be able, at least, to record the detainee'scomplaints (and his own observations) about variousmatters: such as ill – treatment, the failure to provide medicaltreatment, the violation of the conditions of detentionprescribed by the detention order and/or relevant statutesand regulations, the infringement of the detainee's other legalrights qua detainee, etc. Indeed, he may even be able to giverelief in respect of some matters.
Furthermore, many decisions of this Court have drawnattention to the fact that that safeguard is internationallyrecognised. Sri Lanka is a party to the International Covenanton Civil and Political Rights (as well as the Optional Protocol).
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Article 9 of the Covenant mandates, Inter alia, that “noone shall be subjected to arbitrary arrest or detention”;that "anyone arrested or detained on a criminal chargeshall be brought promptly before a judge or other officerauthorized by law to exercise judicial power”: and that"anyone who is deprived of his liberty by arrest or detentionshall be entitled to take proceedings before a court, in orderthat that court may decide without delay on the lawfulnessof his detention and order his release if the detention isnot lawful”. A person deprived of personal liberty has aright of access to the judiciary, and that right is nowinternationally entrenched, to the extent that a detaineewho is denied that right may even complain to the HumanRights Committee.
Should this Court have regard to the provisions of theCovenant? I think it must. Article 27(15) requires the Stateto “endeavour to foster respect for international lawand treaty obligations in dealings among nations”. Thatimplies that the State must likewise respect internationallaw and treaty obligations in its dealings with its owncitizens, particularly when their liberty is involved. TheState must afford to them the benefit of the safeguardswhich international law recognises.
In that background, it would be wrong to attributeto Parliament an intention to disregard those safeguards.The PTA cannot be interpreted as dispensing, by implicationor inference, with the safeguard of prompt productionbefore a judicial officer under and in terms of Article 13(2).Such production is imperative. Since the petitioner wasnever brought before a judicial officer during the entire
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period of detention, I hold that his fundamental rightunder Article 13(2) was infringed for which infringementthe State is liable.
m. TRANSFER TO THE CUSTODY OF THE CUSTOMS
The Petitioner's wife filed a habeas corpus applicationin the Court of Appeal. Notice was issued, returnable on25. 9. 96, on which date State Counsel asked for further timeto file objections.
On 2. 10. 96 the Petitioner was warded at the NationalHospital, Colombo. Before that day – probably in consequenceof the habeas corpus application – the Attorney-General hadadvised the C1D that there was no justification to detainthe Petitioner under the PTA. It must be noted that thedetention order (if valid) continued to be operative. It did notmerely authorise the CID to detain the Petitioner, but orderedsuch detention; and it ordered detention at the CID ojfice(and not at the National Hospital, or at the Customs office,or elsewhere), and it directed detention for three months.and not just for two. On 2.10.96 the CID ignored thoseprovisions.
Although the CID knew full well that there was nojustification for the Petitioner’s continued detention underthe PTA, nevertheless they did not request a revocationor variation of the detention order. Instead of releasing thePetitioner or producing him before a Magistrate, CID officersobtained permission from the Hospital authorities to takehim away for two hours. At 12.30 p. m. they took him to theCID office, and from there to the Prosecution office ofthe Preventive Branch of the Customs. There, at about 2.30p. m., the 2nd Respondent “produced" him before the 4,h
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Respondent (Deputy Director of Customs) and other Customsofficers – because, they claimed, “the investigations raised areasonable suspicion that the petitioner was involved in a largescale revenue fraud which constitutes an offence underthe Customs Ordinance’’. The 4th Respondent confirmedthat the CID officers so stated, but did not claim eitherthat he himself entertained any suspicion in that respector that he informed the petitioner that this was thereason why the Customs took him into custody. He did notproduce any material which would have given rise to such asuspicion. He says that he merely instructed the 5th and 6thRespondents to record a statement. The Petitioner aversthat he "inquired from the 4th Respondent whether there(Were) any allegations against him [and] the 5th and 6thRespondents answered in the negative”. The 4th to 6thRespondents have not denied that averment.
The 5th Respondent commenced recording the Petitioner'sstatement at around 6.00 p. m. He was questioned abouthis career and performance in the Customs; he felt ill, andwhen he inquired whether he would not be taken back toHospital, the 5lh Respondent replied that he would be detainedat the Customs that day; and he then remarked that the 4lhto 6th Respondents would have to take the responsibilityif anything happened to his life. In the meantime the 6!hRespondent told the Petitioner that the National Hospitalwas making inquiries about the delay in returning him tothe Hospital. None of this was denied. It was only thereafterthat on the 4th Respondent’s instructions the Petitionerwas taken back to the Hospital at 10.30 p. m., where hewas guarded by Customs officials.
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I hold that the 4th Respondent took the Petitionerinto Customs custody at 2.30 p. m. on 2.10.96, withoutentertaining a reasonable suspicion that the Petitionerwas concerned in any offence, and without informinghim of the reason for the deprivation of his personal liberty.
The 2nd Respondent also failed to comply with section28 of the Human Rights Commission of Sri Lanka Act,No 21 of 1996, which came into operation on 21.8.96.That section requires (a) the person making an arrest oran order for detention under the PTA or the EmergencyRegulations, and (b) any person making an order for thetransfer of a detainee to another place of detention, toinform the Commission. Thus, on 2.10.96, the procedureestablished by law in respect of the deprivation of liberty -whether upon initial arrest or detention, or upon a transferof custody – included a requirement that the Commissionbe notified. The 2nd Respondent does not claim that he didso.
1 hold that the 2nd and 4th Respondents infringedthe Petitioner's fundamental right under Article 13 (1).
DETENTION UPON MAGISTRATE'S REMAND ORDERS
The 4th Respondent averred that he instructed theCustoms prosecuting officer "to take necessary action toproduce the Petitioner before the Magistrate and make anapplication in terms of section 127A of the CustomsOrdinance”. At that time there was pending in the HarbourMagistrate's Court a case against several other CustomsOfficers. The Customs filed a further report in that case on
seeking to make the Petitioner a party to that case.
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The 4th Respondent falsely claimed in his affidavit that thePetitioner was produced before the Magistrate on 3.10.96:the Court record confirms the Petitioner’s assertion thathe was not produced. Despite that, the Magistrate (the 8thRespondent) made order, directing two Prison guards,Jayaweera and Ranjith, to take charge of the Petitioner untilhe recovered: he also called for a medical report from theHospital. He recorded that after he had adjourned, Jayaweeramet him in chambers and stated that Jayaweera had noauthority to be in charge of the Petitioner while he was in theHospital. The 8th Respondent thereupon made order directingthe Superintendent of Prisons, Welikada, "to take steps” inregard to the Petitioner. The warrant of detention, if any, wasnot produced.
Although the Petitioner was never brought before him,the 8th Respondent made several remand orders thereafter,and released him on bail only on 31.12.96.
During this entire period, the 8th Respondent did notvisit or communicate with the Petitioner, nor did he arrangefor an acting Magistrate to do so.
The Petitioner’s detention from 3.10.96 to 31.12.96was not under the PTA, but under the general law.Two distinct questions arise: Was that detention inviolation of Article 13(2), and if so can the Petitionerobtain relief in respect thereof in these proceedingsunder Article 126?
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(1) Violation of Article 13(2)
Article 13(2) requires that an arrested person bebrought before the judge of the nearest competent court.How he should be brought before the judge can be laiddown by ordinary law, but the requirements that he bebrought before a judge, and that it is not any judge butthe judge of the nearest competent court, cannot be variedor dispensed with. Those are not matters of discretion, butpre-conditions which go to jurisdiction. Section 1 1 5 of theCode of Criminal Procedure Act and section 127A of theCustoms Ordinance require an arrested person to be“forwarded to” or "produced before" – which I regard assynonymous with bringing before – a Magistrate. It is notenough to show him to a judge, or to bring him into physicalproximity to ajudge; he must at least be given an opportunityto communicate with the judge: Ekanaycike v Herath Banda"’1The present case is virtually identical to W. K. Nihal vKotalawela.mThere, while the petitioner was warded inhospital, in police custody, the Police applied to theMagistrate for an order that he be transferred to Prisoncustody and produced ten days later before the Magistrate.The Magistrate granted that application. Dheeraralne, J.observed that there was no provision of law "grantingsanction for a Magistrate to make such a remand order whichis capable of so insidiously eroding the liberty of the subject(see Article 13(2) . . ." See also the other decisions cited inChanna Pieris at 76-77 In my view, two things are essential:the suspect must be taken to where the nearest competentjudge is, or that judge must go to where the suspect is, andthe suspect must have an opportunity to communicatewith the judge. If those conditions are not satisfied, the
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judge would have no jurisdiction in respect of that suspect,to make a remand order.
Discussing section 115(1) of the Code, Wimalaratne, J.observed in Kumarasinghe v. A. G.w that, on occasionswhen a suspect warded in hospital cannot be producedbefore the Magistrate within the stipulated period, thePolice may produce a medical report to the effect that itwould be hazardous to move him from hospital. With respect,1 cannot agree. Such an exception of that sort cannot beimplied in respect of a safeguard for liberty laid down inordinaiy law, in the absence of some ambiguity, injustice,absurdity, anomaly, inconvenience, etc, which would justifysuch an inference. If there is good reason why the Magistratehimself cannot go to the hospital, he can delegate an actingMagistrate. Article 13(2) embodies a basic Constitutionalsafeguard, almost universally recognised: that judge andsuspect must be brought face-to-face, before liberty iscurtailed.
I hold that the first remand order, and the subsequentextensions, were not made in accordance with the procedureestablished by law. The Petitioner was therefore detained inviolation of Article 13(2).
(2) Relief under Article 126
Nevertheless, the Petitioner would be entitled torelief in these proceedings only if those remand ordersconstitute “executive or administrative action".
The act of a judicial officer done in the exerciseof judicial power does not fall within the ambit of “executive
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or administrative action". It does not follow, however,that every act done by a judicial officer is excluded, becausea judicial officer may sometimes perform some functionswhich are not judicial in character: Jayatheuan v AG.('J)Further, as Amerasinghe, J,observed in Farook u Rciymond.(10)"Judicial power can only be exercised if the court . . . hasjurisdiction".
Turning to remand orders in particular, it cannot besaid that such orders are intrinsically or necessarily"judicial” in character – because an order that asuspect be detained pending investigation into an offencedeprives the suspect of his personal liberty in much thesame way, whether that order is made by a judicial officeror by an officer of the Executive. It cannot be assumed,therefore, that the impugned remand orders wereintrinsically judicial in character, and it is necessary toexamine the circumstances and the manner in whichthey were made.
Several decisions of this Court involving remandorders made by judicial officers were analysed in Farook uRaymond. I will refer to some of them.
In Kumarasinghe v A.G., the suspect who was in hospitalwas not brought before the Magistrate, and the Police failedto file a medical report. The Court was of the opinion thatthe period of remand ordered by the Magistrate was quiteexcessive. It was held that there was a breach of Article 13(2),but that was “more the consequence of the wrongful exerciseof judicial discretion as a result of a misleading Police report"
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Although no relief was granted, the Petitioner was awardedcosts. (The Court did not take the view that the failure tobring the suspect before the Magistrate deprived him ofjurisdiction.)
The same principle was applied in Dayananda vWeerasinghe11'1. There the suspect had been brought beforethe Magistrate.
Those two decisions were approved in Leo Fernandou A. G.,"21 a decision of a bench of five judges. The firstquestion that arose related to judicial immunity from suit.Both Colin-Thome, J, and Ranasinghe, J, (as he then was),agreed with the.observations of Lord Denning, MR, in Sirrosu Moore."31
. . So long as (a judge) does his work in the honestbelief that it is within his jurisdiction, then he is notliable to an action. He may be mistaken in fact. He maybe ignorant in law. What he does may be outside hisjurisdiction – in fact or in law – but as long as he honestlybelieves it to be within his jurisdiction, he should notbe liable . . . nothing will make him liable except it beshown that he was not acting judicially, knowing thathe had no jurisdiction to do it."
Ranasinghe, J. proceeded to consider the furtherquestion (see p 369) whether “even though the judge himselfis so immune from any liability, the State would yet be liable,in the field of fundamental rights, for any act of a judgewhich would operate to infringe a fundamental right. . ."It was contended on behalf of the petitioner (see page 30)
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that “the impugned act was not an act committed by the(judge) in his capacity as a judge for the reason that |helhad no power or authority as a judge to do what he didand was therefore acting outside his jurisdiction”. Ranasinghe.J. dismissed that contenion because he took the view thatthe judge “did undoubtedly have the power to make, uponproper material, an order remanding the petitioner pendingfurther investigation into an offence. . ."
The petitioner in Sriyawathie v Shiva Pasupati,‘41 hadbeen remanded on a charge of murder, not for the period of15 days permitted by section 1 15(2), but sine die: no warrantof commitment under section 1 59 had been issued. Noindictment was served on her, and she continued in remandfor seven years. Holding that her detention was illegal, theCourt directed her immediate release, and compensation in asum of Rs 15,000.
In Joseph Perera v A.G..1,51 another decision of abench of five judges, the three petitioners had been remandedby a Magistrate. The Magistrate had no power under theEmergency Regulations to grant bail except with the consentof the Attorney-General. L. H. de Alwis, J, held (at p 247)that the unlawful detention of the petitioners had been byexecutive or administrative action, and not in judicialproceedings: the order of remand, though made by theMagistrate, was not in the exercise of his judicialdiscretion since he had none under the EmergencyRegulations.
In Farook v Raymond the suspects had been remandedto Police custody. Since the Magistrate had no power to
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remand to Police custody, it was held that detention wasnot in accordance with the procedure established by law.Turning to the question whether the order constituted"executive or administrative" action, and after reviewingthe case law, Amerasinghe, J, drew a distinction which Irespectfully adopt.
If an officer appointed to perform judicial functionsexercised the discretion vested in him, but did so erroneously,his order would nevertheless be judicial”. However, anorder made by such an officer would not be “judicial" if-hehad not exercised his discretion, for example, if he hadabdicated his authority, or had acted mechanically, bysimply acceding to or acquiescing in proposals made by thepolice – of which there was insufficient evidence in that case.
On the other hand, if a judicial officer was requiredby law to perform softie function in respfect of which thelaw itself had deprived him of any discretion, then his actwas not judicial.
The principal circumstance which distinguishesthis case is the failure to bring the Petitioner beforethe 8th Respondent. That resulted in a patent want ofjurisdiction. It also caused a failure of natural justice,because the 8lh Respondent acted without asking thePetitioner what he had to say.
Further, on 3.10.96 the detention order made underthe PTA had not expired. It had neither been revoked nordeclared invalid. Nevertheless, the 8th Respondent did noteven consider whether that order affected his jurisdiction: e.g.
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Whether it took away his power to release the Petitioner onbail? Whether he could have ordered detention in a differentplace?
Having regard to the patent want of jurisdiction,and the failure to consider whether he had jurisdiction. 1hold that the remand orders made by the 8th Respondentwere not "judicial" acts done in the exercise of judicial power.It was the executive which had custody of the Petitionerfrom 3.10.96, and so the Petitioner's detention was by"executive or administrative action", not sanctioned by ajudicial act. Detention was in violation of the Petitioner'sfundamental right under Article 13(2), and for that theState is liable.
ORDER1 hold that the Petitioner's fundamental rights underArticles 13(1) and 13(2) have been infringed as setout above, and award the Petitioner a sum of Rs. 300.000as compensation and costs, payable on or before 30.9.2000.Of this sum, Rs. 200,000 shall be paid by the State, Rs. 75,000by the 2nd Respondent personally, and Rs. 25,000 by the4"' Respondent personally.
AMERASINGHE, J. – I agree.
DHEERARATNE. J.1 agree.
Relief granted.