S.C. (FR) Application No. 478/97 - Case of Sunil Kumara Rodrigo
S.C. Application FR No. 478/97
In the Supreme Court of the Democratic Socialist Republic of Sri Lanka
Colombo 12.
In the matter of an application under and in terms of article 17 and article 126 of the constitution of the Democratic Socialist Republic of Sri Lanka read with Rule 44 (3) of the Supreme Court Rules of 1990.
Petitioner:
Sunil Kumara Rodrigo, Attorney at law, 77, Isipathana Mawatha, Colombo 5.
(On behalf of B. Sirisena Cooray, 226, Lake Drive, Colombo 8).
Vs.
Respondents:
1. R. K. Chandrananda De Silva, Secretary, Ministry of Defence, 15/5, Baladaksha Mawatha, Colombo 1.
2. W. B. Rajaguru. Inspector-General of Police, Police Head Quarters, Colombo 1.
3. Hon. Att orney- General, Attorney - General's Department, Colombo 12.
Before:
Amarasinghe, J.
Wijetunge, J.
Gunawardane, J.
Counsel:
K.N. Choksy, P.C. , with Desmond Fernando, P.C. ,
Kosala Wijethilake, M.D.K. Kulatunge, Hemantha
Warnakulasuriya, S. Mahenthiran, Upul Jayasuriya,
Lakshman Ranasinghe, Sarath Kongahage,Methsiri
Cooray and Ronald Perera, for the Petitioner.
C .R .De Silva, P.C., Additional Solicitor -
General , with Kolitha Dharmawardhana, Deputy
Solicitor - General , S. Samaranayake, State
Counsel and N. Pulle , State Counsel , for
the respondents.
Argued on: 21 & 22 July 1997.
Decided on: 19 August, 1997.
Amarasinghe, J.
--------------------------
This is a matter concerning the alleged infringement of certain fundamental rights declared and recognized by the Constitution.
Locus standi
The petitioner in this case, Mr. Sunil Kumara Rodrigo, is an attorney - at - law appearing on behalf of Mr. Bulathsinhalage Sirisena Cooray. Article 126 (2) of the Constitution states, inter alia, that where any person alleges that any fundamental right relating to such person has been infringed, he may himself or by an attorney- at- law, on his behalf apply to the Supreme Court by way of petition praying for relief or redress in respect of such infringement.
Reliefs sought
The petitioner prays that this Court be pleased to
(a) grant the petitioner to proceed with this application;
(b) declare that the fundamental rights of Mr. Cooray guaranteed by articles 12 (1), 12 (2), 13 (1), 13 (2), 14 (1) (c) and 14 (1) (h), of the Constitution have been violated by the 1 st. and / or 2 nd. respondents;
(c) direct that the said Mr. Cooray be released from custody and detention ;
(d) direct the 1 st. and / or 2 nd. respondents to pay damages and / or compensation to Mr. Cooray in a sum of Rupees Ten Million ;
(e) make an interim order pending the hearing and the final determination of this application releasing the said Mr. Cooray from custody and detention upon such terms and conditions as may be imposed by Court;
(f) make interim orders pending the hearing and final determination of this application permitting the said Mr. Cooray to be met by the petitioner and his lawyers, and examined when necessary by his doctors, upon such terms and conditions as may be imposed by Court ;
(g) for costs ;
(h) for such other and further relief as to the Court shall seem meet.
Leave to proceed
With regard to the prayer set out in paragraph (a) of the petition, the Court (Fernando, Dheerarathne, Wadugodapitiya, JJ) on the 24 th. 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.
Interim relief for release from custody
With regard to the prayer set out in paragraph (e) of the petition, on the 24th. of June 1997, after hearing counsel, the court denied the relief claimed: (S. C. Minutes 24. 06. 97.) Fernando, J. (Dheerarathne and Wadugodapitiya, JJ) agreeing stated:
" To grant prayer (e) would be, in effect, to grant the petitioner the substantive relief to which he would be entitled if he ultimately succeeds. Although the petitioner has established, prima facie, in - fringements of the aforesaid Articles, it has not been established that very probably the detention is void and will cause irrepairable prejudice, and we do not consider that an interim order in terms of prayer (e) should be made at this stage ; an early hearing would suffice".
Interim relief for legal and medical assistance
With regard to the prayer set out in paragraph (f) of the petition, on the 24 th. Of June 1997, after hearing counsel, the Court granted the relief claimed: (S. C. Minutes 24. 06. 97). Fernando, J. (Dheerarathne and Wadugodapitiya, JJ agreeing stated:
" In respect of prayer (f), Mr. Choksy submits that the detainee ' s lawyers have been denied access to the petitioner up to date ; but Mr. De Silva states that an order has been made by the 1 st. respondent on 23/06/97, permitting access to the detainee ' s lawyers. He submits that the 1 st. respondent has power, under Emergency Regulation No. 17 (4) to allow access to a detainee ' s lawyers.
Emergency Regulation 17 (4) authorizes detention in accordance with instructions issued by the Secretary. Even assuming that this would extend to allowing him to deny the right of access to a detainee's lawyers, in fact no such instructions were either set out in the Detention Order or issued thereafter. The detainee ' s lawyers should therefore, not have been refused access to him, particularly after this application was filed. Had the detainee been detained in prison, it is common ground that under the Prison Rules, his right of access to lawyers would have been respected. That is the norm ; and it is implicit in Emergency Regulation 17 (4) that a person should not 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 the Prisons Ordinance or the Rules, which would otherwise apply to a detainee, would not apply to him. While the Constitution recognizes the power to make Emergency Regulations, overriding, amending or suspending the provisions of any statute, it is doubtful whether Emergency Regulations can confer on the Secretary any such power.
Mr. De Silva has no objections to the detainee having access to the doctors.
The Court accordingly grants an interim order in terms of prayer (f).
It is the petitioner and the attorneys - at law (including the instructing attorney) who appeared for him today, who will have the right of access."
Articles 12 (2), 14 (1) (c), and 14 (1) (h) not violated
Although leave to proceed has been granted for the alleged infringement of Articles 12 (2), 13 (1), 13 (2), 14 (1) (c), and 14 (1) (h) of the Constitution, matters relating to the violation of the rights enshrined in Articles 12 (2), 14 (1) (c) and 14 (1) (h) were not pressed by 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 whether the fundamental rights of Mr. Cooray declared and recognized by Article 13 have been violated, and if so whether any or some or all of the reliefs prayed for in paragraphs (c), (d), (g) and (h) should be granted 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 it may deem just and equitable .... "
Article 13 (1) of the Constitution
Leave to proceed was granted for the alleged infringement of Article 13 (1) of the Constitution. Article 13 (1) states as follows:
" No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest".
There are two rights that are recognized and declared by Article 13 (1):
* A person shall not be arrested except according to procedure established by law ;
* A person arrested must be informed of the reason for his or her arrest.
In applying law to the facts of the matters before me, I have therefore to consider two matters in relation to the alleged violation of Article 13 (1):
* Was Mr. Cooray arrested according to procedure established by law?
* Was Mr. Cooray informed of the reason for his arrest?
Was Mr. B. Sirisena Cooray arrested according to procedure established by law?
The detention order was ex facie defective:
It is not in dispute that Mr. B. Sirisena Cooray was arrested by Police Officers on the 16 th. Of June 1997 acting on an order of the Secretary, Ministry of Defence, dated the 16 th. June of 1997. In this order dated the 16 th. of June 1997, the Secretary states that he was acting by virtue of the powers vested in him by paragraph 17 (1) of the Emergency (Miscellaneous provisions and powers) Regulations No. 4 of 1994 published in Gazette Extraordinary No. 843 / 12 of the 4 th. of November 1994.
Regulation 17 (1) states:
" Where the Secretary is satisfied upon the material submitted to him, or upon such further additional material as may be called for by him with respect to any person, that with a view to preventing such person
(a) from acting in any manner prejudicial to the national security or to the maintenance of public order ....
(b) ......
(c) ......
it is necessary so to do, the Secretary may make order that such person be taken into custody and detained in custody for a period not exceeding three months ..... "
The emphasis is mine.
Regulation 17 (1) authorizes the Secretary to make an order for a period. The order in this case dated 16 th. June 1977 does not specify the period of detention. The order is therefore is not in accordance with the procedure prescribed by law for the arrest and detention of persons on the orders of the Secretary. Article 13 (1) of the constitution states that " No person shall be arrested except according to procedure established by law ". The arrest and detention of Mr. Cooray on the 16 th. of June was therefore unconstitutional.
In paragraph 9 of his affidavit, the Secretary states as follows:
" .... In view of the seriousness of the material contained in the Intelligence reports, it was my intention to detain the detenu initially for a period of 3 months commencing 16 June 1997. Subsequently, I have by way of an amendment to the said Detention Order P 1, made order stating that the Order marked P 1 referred to above would be effective for a period of 3 months commencing 16 th. June 1977. I produce a certified copy of the amending Order and an affidavit from ..... Abeyweera who served the said Detention Order on the detenu marked 1 R 2 (a). "
Mr. Abeyweera states in his affidavit that he served the amended order on Mr. B. Sirisena Cooray and that Mr. Cooray accepted that order.
The amending order is dated 2 nd. July 1997. In it the Secretary states that he amends the order dated 16 June 1997 " by stating that the said order is effective from 16 th. June 1977 for a period of three months. This amendment is to be considered as forming part and parcel of the said order dated 16 th. June 1997. "
In my view, the effect of the amendment is merely to specify the period of detention, as required by law. That was done belatedly on the 2 nd. of July 1997. By stating that the amending order was to be regarded as " forming part and parcel " of the order, the defect in the order of the 16 th. of June does not stand remedied. Therefore the detention from the 16 th. of June to the 2 nd. July 1997 was uncosti - tutional. I hold, however, that the Detention Order was ex facie valid from the 2 nd. of July 1997.
The basis of the Secretary's decision required by Regulation 17 (1).
Regulation 17 (1) requires the Secretary to arrive at his decision to order the detention of a person upon the material submitted to him or upon such additional material as may be called for by him. What was (1) the unsolicited material submitted to the Secretary or (2) additional material called for by him that satisfied him that the order of detention was necessary?
The unsolicited material submitted to the Secretary
Initially, there were three unsolicited reports submitted to the Secretary. The first was from the Inspector - General of Police (the second respondent): the second was from the Director of the National Intelligence Bureau: the third was from the Deputy Inspector - General of Police, Criminal Investigation Department.
The first report
With regard to the first report , the Secretary , in his affidavit States as follows :
"... on 9.6.97 I received information in writing from the 2 nd. respondent that certain persons who had been arrested in connection with a spate of armed robberies in the Gampaha police area had in the course of interrogation stated that members of a group involved in the commission of dangerous criminal acts led by Arambalage Don Ranjith Upali alias Sothi Upali (presently in remand) had been making inquiries about the visit of Her Excellency the President to Nittambuwa (sic.) , Horagolla and Attanagalla. I was also informed that Sothi Upali was a close associate of (Mr. Cooray). The 2 nd. respondent also informed me that his intelligence unit had received reliable intelligence that the detenu has had discussions with certain members of the said group about assassinating or causing physical harm to Her Excellency the President and 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 were made - they have not been produced before this Court - what sort of creditability should be attached to statements made by a gang of robbers? How could Sothi Upali who had been in prison custody for over a year be leading the group alleged to have been " involved in the commission of dangerous criminal acts? " The Inspector - General of Police had informed the Secretary that Sothi Upali was a close associate of Mr. Cooray and that Mr. Cooray had had discussions with certain members of Sothi Upali 's group about assassinating or causing physical harm to the President and creating unrest in the country.
What was the evidence? What steps were taken to check the accuracy of the information?
On the other hand , in his affidavit dated 15 th. of July 1997 , Mr. Cooray has catagorically denied that he had any connection whatever with any members of the so-called Sothi Upali group. He also states that the averment that he was a close associate of Sothi Upali is " false and without any basis ". He explains that he became acquainted with Sothi Upali as one several workers sent to him by the late President R. Premadasa to assist him as campaign manager in connection with the Presidential and Parliamentary elections of 1988 and 1989. However , he states : " I have had no dealings with Sothi Upali and have not met or spoken to him since I ceased to be the General Secretary of the United National Party in 1994. " The respondents have not challenged Mr. Cooray 's averments either by way of affidavit or through the submissions of their counsel.
The second report
With regard to the second report , the Secretary , in his affidavit , states as follows :
".....the Director of National Intelligence Bureau by report dated 11 th. June 1997 informed me that he had reliable intelligence that [ Mr. Cooray ] and 3 persons viz. U. L. Seneviratne , Wathudula Bandulage Somaratne alias Malwatte Some , Janaka Priyankara Jayamanne alias Sudu Mahatmaya and some other unidentified persons have had discussions about assassinating or causing physical harm to Her Excellency the President in the near future..... "
The Secretary filed a copy of a letter dated the 3 rd. of July 1997 sent by him to the Chairman of the Advisory Committee appointed under Regulation 17 (5) to enable the Chairman to communicate the " reasons " for the arrest and detention : (Paragrah 11 of the Secretary 's affidavit).
In that letter , the Secretary states that he had issued Detention Orders on Mr. B. Sirisena Cooray , Mr. U. L. Seneviratne , Mr. W. B. Somaratne and Mr. J. P.. Jayamanne. The Secretary states as follows : " These Detention Orders have been issued by me after 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 assistance of certain persons to cause harm or to assassinate Her Excellency the President. Some of the persons allegedly identified are Upali De Silva , U. L. Seneviratne , W. B. Somaratne and J. P. Jayamanna. Further it is reported that some persons have been enlisted as Reserve Police Officers and given training in sophisticated weapons. Whereabouts of such persons trained in weapon use are not traceable today. Any conspiracy to cause acts in furtherence of such a purpose was considered a serious threat to national security. "
In his affidavit , Mr. Sirisena Cooray emphatically denies that he had " any discussions with any person whomsoever about assassinating or causing harm to Her Excellency the President. " The said allegation is utterly and completely false. " What steps had the Director of the National Intelligence Bureau taken to check the correctness of the information? What was the basis for regarding the information as reliable?"
What is the connection between the Sothi Upali group and the persons mentioned in the second report? After all, the conspiracy was supposed to be between Mr. Cooray and a gang of criminals led by Sothi Upali who ' directly or indirectly ' had acquired properties close to the ancestral home of Her Excellency the President to harm or assassinate Her Excellency. The other persons who were supposed to have participated in discussions with Mr. Cooray were said to be " unidentified " , and so they could not be said to belong to the Sothi Upali group. Mr. Cooray states in his affidavit that he was questioned about his connections with the persons mentioned in the Director 's report after his arrest.
He states : " I was questioned about a visit made to me at my residence after my return by U. L. Seneviratne , member of the Western Provincial Council and ex M. M. C. , and what we had discussed. I stated that the said U. L. Seneviratne called on me once complaining bitterly about his arrest and detention for a long period which he said was unlawful. I was questioned whether I knew Sudu Mahattaya , to which I answered in the negative. Subsequently , on 8 th. July I was asked whether I knew Malwatte Some. I answered I did not know him by name but if I am shown him it may be that I had met him casually. " The respondents have not challenged Mr. Cooray's averments either by way of affidavit or through the submissions of their counsel.
The third report
With regard to the third report , the Secretary , in his affidavit , states as follows :
" I state that T. V. Sumanasekara , Deputy Inspector - General of Police, Criminal Investigation Department, by a report dated 14. 6. 97 addressed to me informed me that he had received reliable intelligence that [Mr. Cooray ] had assistance of certain members of a group involved in the commission of dangerous criminal acts to cause harm to or assassinate Her Excellency the President. "
Which group was this? Was it Sothi Upali 's group? If so why was it not named?
The Secretary 's request for further information
The Secretary states in his affidavit that , by his letter dated the 14 th. of June 1997 , he " sought further clarifications from the Deputy Inspector- General of Police , Criminal Investigation Department on certain matters referred to in his report. I annexe hereto marked 1 R 1 the said letter dated 14. 6. 97." 1 R 1 states as follows :
" I refer to your dated 14 th. June on the above subject.
Please identify the manner in which the persons mentioned in your report would be a threat to National Security. "
Learned counsel for the petitioner submitted that this letter was written because the material furnished did not satisfy the Secretary that there were grounds for arresting Mr. Cooray. Learned counsel for the respondents stated that Mr. Cooray had been a Mayor of Colombo and a former Cabinet Minister. Therefore the Secretary was acting cautiously , and wrote 1 R 1. I shall refer to this letter again , but I should like to dispose of one matter immediately. The Secretary in exercising his powers of arrest , should always act cautiously , for the liberty 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 Secretary
With regard to the response he received , the Secretary , in his affidavit, states as follows :
" [ The ] Deputy Inspector - General of Police , Criminal Investigation Department by way of further report dated 16. 09. 97 confirming his earlier intelligence report about [ Mr. Cooray ].... brought to my notice that the said Sothi Upali had either directly or through members of his group purchased lands in close proximity to Horagolla Walawwa, the ancestral residence of Her Excellency the President and that two houses had already been constructed and another is presently under construction in these lands. He also informed me that his intelligence revealed that the said properties were acquired as part a [n ] elaborate conspiracy to cause physical harm to Her Excellency 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 regarding the acquisition and construction of houses in the said land [sic.] referred to above. Deputy Inspector-General of Police , Criminal Investigation Department in the said report among other details also brought to my notice that he received reliable intelligence that [ Mr. Cooray ] was planning to commit various acts of violence with the view of discrediting the Government and in this connection he has sought the assistance of some retired service personnel. "
The author of the third report and the report of the 16 th. of June 1997 , Mr. T. V. Sumanasekara , Deputy Inspector - General of Police, Criminal Investigation Department , in his affidavit dated the 8 th. of July 1997 , states that the Inspector - General of Police , the author of the first report , had informed him of matters set out in the first report ; and that in response to the directions given to him by the Inspector - General of Police , he , instructed Inspector of Police Jagath Fonseka , the Officer in charge of the Central Intelligence Unit of the Criminal Investigation Department to inquire into the matter. He states that he also directed his intelligence unit " to gather intelligence about the involvement of [ Mr. Cooray ] regarding a consiracy to assassinate or cause physical harm to Her Excellency the President."
Mr. Sumanasekara goes on to state as follows :
" 7. I state that my intelligence sources revealed that certain members of the group involved in the commission of dangerous criminal offences headed [ by ]... Sothi Upali (presently in remand) has had discussions with [ Mr. Cooray ] about assassinating or causing physical harm to Her Excellency the President.... My inquiries also revealed that the said Sothi Upali had either directly or through his relatives purchased properties in close proximity of the Horagolla Walawwa , the ancestral residence of Her Excellency the President. I annex hereto marked A 2 , the inquiry notes conducted by the intelligence regarding to the purchase of the land referred to above in close proximity to the ancestral residence of Her Excellency the President. It has now transpired that these properties are situated within 1 km. from the ancestral residence of Her Excellency the President. I produce marked A 3 , A 4 and A 5 respectively the reports forwarded to me by Inspector of Police Jagath Fonseka, Officer in Charge of the Intelligence Unit and an affidavit from the said Jagath Fonseka under confidential cover for perusal of Your Lordships Court.
8. I state that on the intelligence and information gathered by me I submitted a report dated 14. 6. 97. to [ the Secretary ] and in response to certain queries made by him I also submitted another report dated 16. 6. 97. I am advised that the said reports are being produced by [ the Secretary ] under confidential cover for your Lordships' perusal.
9. I state that according to the intelligence I have received....Sothi Upali has masterminded and overseen a large number of murders , robberies and disappearances of persons carried out through a group of criminals led by him.
10. I state that my intelligence sources also revealed that Uswatta Liyanage Seneviratne , Wathudula Bandulage Somaratne alias Malwatte Some and Janaka Priyankara Jayamanne alias Sudu Mahattaya were also identified as being persons concerned in the said conspiracy. "
As we have seen , Mr. Cooray has , in his affidavit , (1) dealt with the question of his alleged connections or discussions with the persons named by Mr. Sumanasekara as " persons concerned in the said conspiracy " ; and (2) denied having had discussions with any person with a view to assassinating or causing harm to Her Excellency the President. As I have observed , Mr. Cooray's averments with regard to those matters have not being challanged in these proceedings.
Although Mr. Sumanasekara in his affidavit states that the discussions about the plot to harm or assassinate the President were held with " certain members " of a group of criminals " headed... by Sothi Upali ", as I have observed , according to the Secretary , there is no reference in his report dated 14 th. of June 1997 to either Sothi Upali or his group. Nor , according to the Secretary , does he state in that report that the persons named as having had discussion with Mr. Cooray were members of Sothi Upali 's group. In his affidavit Mr. Sumanasekara states that the persons named by him " were also identified as being persons concerned in the said conspiracy ", but he refrains from stating that they were members of Sothi Upali 's group.
Nor , according to the Secretary , is there a reference in Mr. Sumanasekara 's report dated the 14 th. of June 1997 to the question of the acquisition of properties anywhere. However , as we have seen , the Secretary in his affidavit states that Mr. Sumanasekara had in his report dated the 16 th. of June 1977 referred to the acquisition of properties by Sothi Upali " either directly or through members of his group " , " in close proximity to Horagolla Walawwa , the ancestral residence of Her Excellency the President... acquired as a part of an elaborate conspiracy to cause physical harm to Her Excellency the President."
Sketch plans and investigation reports of police officers deployed by Mr. Jagath Fernando , Inspector of Police, on the instructions of Mr. Sumanasekara , have been filed for the confidential perusal of the Court. There is nothing in the material furnished to show that Sothi Upali " either directly or through members of his group " purchased lands in close proximity to the ancestral residence of the President. In any event , if the lands were purchased , as the Secretary states he was told by Mr. Sumanasekara , " as a part of an elaborate conspiracy " , it would have been of crucial importance to state when the lands were acquired - a matter that could easily have been ascertained by asking the owners of the properties or by visiting the Land Registry. Mr. Cooray states in his affidavit that { after his arrest) he was questioned by the Police as to whether in his capacity as Minister of Housing and Construction he allotted any land to Sothi Upali in Horagolla. He had replied that he had no recollection of having done so.
That again is a matter that could have been easily ascertained by asking the Government authority concerned. In any event , if a land had in fact been so allocated , how could that ever have been evidence of a conspiracy to assassinate Her Excellency the President? For when Mr. Cooray was the Minister, Her Excellency the President had not yet been elected to office? The conspiracy , according to the Secretary, was not to harm or assassinate Mrs. Kumartunga at the time when Mr. Cooray was a Minister : The conspiracy was to assassinate Her Excellency the President.
The Deputy Inspector - General , Mr. Sumanasekara , in his affidavit states as follows : "... my inquiries also revealed that certain persons who had been enlisted to the Reserve Police Force at the instance of [ Mr. Cooray ] when he was a Cabinet Minister in the previous government had been given intensive training by the Special Task Force [STF]. I also received intelligence that some of the persons who were so recruited had deserted their posts and their present whereabouts are unknown. "
Mr. Cooray in his affidavit states as follows : "..... during the period 1989 to 1991 , there was severe threat to Cabinet Ministers and other persons holding public office from the J. V. P. movement which was at its height. Accordingly , security officers attached to my security , and I believe also to the security of other high ranking personnel , were enlisted into the Reserve Police Force and trained by the Special Task Force in order to provide adequate security. I state that out of the 08 security personnel recruited to the Reserve Police , 04 have reverted to their substantive posts in the Colombo Municipal Security Service , and 04 have retired.... "
The respondents have not challenged Mr. Cooray 's averment either by way of affidavit or through the submissions of their counsel. And so there was , after all , nothing very alarming or mysterious about the former security staff of Mr. Cooray. What was the relevance of the averments made by the Deputy Inspector - General to the conspiracy theory?
The Secretary stated in his affidavit that the Deputy Inspector - General of Police had in his report dated the 16 th. of June 1997 brought it to his " notice that he received reliable intelligence that the detenu was planning to commit various acts of violence with a view of discrediting the government and in this connection he has sought the assistance of some retired service personnel. " The allega -tion relates to acts aimed at discrediting the government and not a conspiracy to assassinate or harm the president. The Secretary states that he " formed the opinion " that it was necessary to detain Mr. Cooray " having considered the matters referred to above and the material contained in the reports referred to above pertaining to a conspiracy to assassinate or cause harm to Her Excellency the president and its grave implications for National Security and Public Order. We are concerned in these proceedings with the grounds upon which the Secretary ordered the arrest and detention of Mr. Cooray; and those grounds , according to the Secretary , related to a conspiracy to assassinate or harm the President. In any event , Mr. Cooray denies the allegation that he was planning to commit any acts of violence to discredit the government. The respondents have adduced no evidence or offered any submissions through their counsel on that matter.
Information supplied for confidential perusal by the Court
In addition to the facts and information referred to in his affidavit, the Secretary also placed the following documents before the Court for confidential perusal :
(i) The report of the Inspector - General of Police dated 9 June 1997 ;
(ii) The report of the Director of National Intelligence bureau dated 11 June 1997 ;
(iii) The report of the Deputy Inspector - General of Police, Criminal Investigation Department dated 14 June 1997;
(iv) The report of the Deputy Inspector - General of Police, Criminal Investigation Department dated 16 June 1997.
The Secretary expressly states in his affidavits, that he was satisfied on the basis of material contained in those reports.
Those reports do not materially add anything to the narration of their contents in the affidavit of the Secretary.
Was the Secretary " satisfied " ?
Mr. Cooray was arrested and detained upon an order issued by the Secretary under the powers conferred on the Secretary by regulation 17 (1). The opening words of the regulation state that such an order may be issued " where the Secretary is satisfied. " The Secretary has delared in his affidavit that he was " satisfied and formed the opinion that it was necessary to detain .... B. Sirisena Cooray to prevent him from acting in any manner prejudicial to the national security and the maintenance of public order. " The regulation is framed in a subjective form. However, his own declaration is not conclusive, for the decision does not relate merely to " a matter of pure judgement " (per Lord Wilberforce in Secretary of State for Education and Science v Tameside Borough Council [1977] AC 1014) or to a matter where he had to be satisfied on " a matter of pure opinion ". (per Lord Denning in Tameside at 1025 C. A.). The opening words of regulation 17 (1) " where the Secretary is satisfied " do not, in my view, confer an absolute discretion on the Secretary ; they serve " as a condition limiting the exercise of an otherwise arbitrary power : If the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power, the value of the intended restraint is in effect nothing. " : per Lord Radcliffe in Nakkuda Ali v M. F. de S. Jayaratne [1951] A.C. 66 (1) PC. The words do not mean " Where the Secretary thinks " ; nor do they mean " Where the Secretary believes ". They mean that the Secretary was satisfied on reasonable grounds which were capable of supporting the Secretary 's decision and (2) the Secretary should not have misdirected himself on the law at arriving at his decision. Secretary of State for Education and Science v Metropoliton Borough of Tameside, [1996] 3 Al1 ER 665, [1977] AC 1014; Attorney-General of St. Christopher, Nevis and Anquilla v Reynolds, [1997] 3 A 11 ER 129 P.C.
The Secretay had to be satisfied that it was necessary to detain Mr. Cooray to prevent him from acting in a manner prejudicial to national security and public order by causing harm to or assassinating Her Excellency the president. It is open to Mr. Cooray to show that the Secretary was not legally entitled to be satisfied. A person is legally entitled to be " satisfied " if he is " reasonably " satisfied : Director of Public Prosicutions v Head [1959] AC 83, 110.
As Wade (p. 401) points out : " Taken by itself, the standard of unreasonableness is normally pitched very high : ' so absurd that no sensible person could ever dream that it lay within the powers of the authority ' (Lord Greene MR) ; ' so wrong that no reasonable person could sensibly take that view ' (Lord Denning) ; ' so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it ' (Lord Diplock)." Our task is not to find whether the Secretary has taken leave of his senses, but whether he was " reasonably satisfied.
In doing so, we must have regard to the scheme and purposes of the relevant regulations made under the law for the time being relating to public security - the Emergency (Miscellaneous Provisions and powers) Regulations No. 4 of 1994 in this case : the applicable provisions of the general law of the land, including those contained in the Code of Criminal Procedure ; and the " Supreme Law " - the Constitution. We should remind ourselves that Article 13 (5) of the Constitution declares and recognizes that " Every person shall be presumed innocent until he is proved guilty. " We should also bear in mind that " The principle of personal freedom that every man should be presumed innocent until he is found guilty applies also to the police function of arrest ..... For that reason it is of importance that no one should be arrested by the police except on the grounds which the particular circumstances of the arrest really justified the entertainment of a reasonable suspicion,": per Scott LJ in Dumbell v Roberts [1944] 1 A11 - ER 326, followed in Muththusamy v Kannangara, (1951) 52 NLR 324 per Gratiaen, J ; Faiz v Attorney- General, SC Application 89/91 SC Minutes 1993 per Perera, J : and in Faurdeen v Jayetlleke and others, SC Application 366/93 SC Minutes 8 September 1994 per Perera, J ; Channa Pieris v A.-G., [1994 1 SLR 1 at p. 51.]
A person is " reasonably satisfied " if his decision is reasonable," or can be supported with good reasons, or at any rate be a decision which a reasonable person might reasonably reach ": per Denning MR in Tameside cited with approval in Siriwardene v Liyanage (1983) 2 FRD 310. "If a judgement requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary ... alone, the Court must inquire whether those facts exist, and have been taken into account, whether the judgement has been made upon a proper self-direction as to those facts, whether the judgement has not been made upon other facts which ought not to have been taken into account " : per Lord Wilberforce in Tameside at 1047 followed in Siriwardene at 328 - 329.
In Associated Provincial Picture Houses Ltd. V Wednesbury Corporation [1948] 1 KB 223 at 229 Lord Greene MR said :
" It is true that the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to the use of statutory discretions often use the word " unreasonable" in a rather comphrehensive sense. It has frequently being 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 matters which he is bound to consider. He must exclude from his consideration matters which are irrevelent to the matters to what he has to consider. If he does not obey these rules, he may truly be said, and often is said, to be acting " unreasonably ". Similarly, there may be something so absurd that no reasonable person could dream that it lay within the powers of the authority. Warrington LJ in Short v Poole corporation gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might always be described as being done in bad faith : and, in fact all these things run into another."
Commenting on Lord Greene's famous passage, Wade (7 th. Ed. 400 - 401) states as follows : " It explains how " unreasonableness ", in its classic formulation, covers a multitude of sins ... Unreasonableness has thus become generalized rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as 'irrelevent 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 the Secretary and substitute its own views for that of the Secretary. Indeed, as Lord Hailsham observed : " Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable....
Not every reasonable exercise of judgement is right, and not every mistaken exercise of judgement is unreasonable. There is a band of decisions with which no Court should seek to replace the individual's judgement with its own." : In re W (An infant) 1971 A.C. 682. 700"
When the Secretary " honestly takes a view of the facts or the law which could be reasonably be entertained then this decision is not be set aside simply because thereafter someone thinks that his view is wrong. After all this 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 whole process would be made of no effect if the (Secretary 's) decision was afterwards to be conned over word by word, letter by letter, to see if he has misdirected himself. That cannot be right....": Per Lord Denning in Secretary of State v ASLEF (No. 2) [1972] 2 A11 E.R. 949. The prevailing situation in the country will obviously be a matter that the Court will not ignore; Cf. per Wansundara, J. in Joseph Perera v A.-G. S.C Apps. 107 - 109. S.C. Minutes 25 May 1987 ; per Kulatunge, J. in Wijewrdane v Zain S.C. App. 202/87 S.C. Minutes 24 July 1989 ; Dissanayake v Superintendant, Mahara Prison S.C. Sol. 6/90 S.C. Minutes 28 March 1991. The Court also appreciates the difficulties inherent in the investigation and prosecution of certain offences, such as terrosist crimes or conspiracies to assassinate poli- tical leaders, and the need for acting quickly where national security or public order is involved. Yet, the exigencies of dealing with such crimes cannot justify switching the notion of reasonableness to the point where the essence of the safeguard secured by Article 13 [1] of the Constitution may be abrogated : Cf. Brogan v U.K. European. Ct. of Human Rights, 29 November 1988 Ser. A No. 145B, Fox, Campbell & Hartley v U.K., European Ct. of Human Rights, 30 August 1990 Ser. A No. 182.
The question for determination is whether, on the material before him, the Secretary was "satisfied" that Mr. Cooray should be arrested and detained. As we have seen, there were many mistakes and misunderstandings based on misleading advice as a result of which he misdirected himself. Moreover, the grounds on which he was supposed to have formed his judgement did not exist : What was the evidence that Sothi Upali was a ' Close Associate ' of Mr. Cooray - that the members Sothi Upali's gang held discussions with Mr. Cooray about assassinating the President - that Sothi Upali had ' directly or indirectly ' purchased lands in close proximity to the ancestral home of the President as a part of "an elaborate conspiracy " to harm or assassinate the President? The police had their suspicions and hoped that some evidence might turn up to make their suspicions reasonable. However, vague, general suspi - cions and fervent hope or even confident assumption that something might eventually turn up to provide a reasonable ground for an arrest will not do : Channa Peiris [1994] 1 SLR 1 at p. 51. I hold that he was not legally entitled to be satisfied.
Other factors motivating the Secretary
The material in the reports (as conveyed to us through the Secretary's affidavit), as we have seen, did not provide grounds for the arrest. Why, then did the Secretary come to form his opinion that it was necessary to arrest and detain Mr. Cooray? The secretary in his affidavit states as follows :
" ..... the Criminal Investigation Department, the National Intelligence Bureau and the 2nd. Respondent had on several occasions forwarded intelligence reports regarding matters affecting the security of the State and public order. I also state that most of the intelligence set out in these reports have been subsequently found to be accurate.
...... I had no reason to doubt the reliability of the intelligence reports submitted to me regarding the matter in question.
...... in the recent past there had been a number of political leaders including the Heads of State who had been assassinated. Investigations have revealed that these offences had been committed in persuance of carefully planned conspiracies.
...... I state that having considered the matters set out above and the material contained in the reports referred to above pertaining to a conspiracy to assassinate or cause physical harm to Her Excellency the President and its grave implications for National Security and Public Order I was satisfied and formed the opinion that it was necessary to detain the said B. Sirisena Cooray to prevent him from acting in any manner prejudicial to the National Security and the maintenance of Public Order. In the circumstances, I made [the] order which has been Produced marked P 1 ....."
Self - Misdirection
Learned counsel for the respondents submitted that the Secretary acted upon material placed before him by senior responsible officers and therefore believed in good faith that he had reasonable cause to believe that Mr. Cooray was involved in a conspiracy. In Liversidge v Anderson, [1941] 3All. ER 338, [1942] AC 206, the majority of the House of Lords decided that the words " If the Secretary of the State has reasonable cause to believe " meant " If the Secretary of the State thinks that he has reasonable cause to believe " providing he acts in good faith. However, Lord Atkin, in his celeberated dissenting speech, held that the words " If the Secretary of State has reasonable cause to believe " meant what they said, namely that they gave only a conditional authority to the Secretary to detain any person without trial, the condition being that he had reasonable cause for the belief which leads to the detention order. The decision of the majority in Liversidge supports the submission of learned counsel for the respondents, but as Lord Reid dismissively observed in Ridge v baldwin, [1963] 2 A11 ER 66 at 76, [1964] AC 40 at 73, it was a " very peculiar decision " and is not regarded with favour. However, although Lord Scarman said in the same case that the ghost of the decision in Liverside need no longer haunt the law, it seems to have made another appearance. And perhaps in the hope that this court would not exorcise that evil spirit, Mr. De Silva, whose arguments were almost vigorously but fairly and ably presented, cited the decision of the Supreme Court in Janatha Finance and Investments v D. J. Francis Douglas Liyanage and others (1983) vol. 2 FRD 373.
In that case, the Competent Authority appointed under the Emergency
(Miscellaneous Provisions and Powers) Regulations No. 3 of 1982 made an order under regulation 14 (7) thereof sealing the petitioner 's printing press. The petitioner alleged that the order was null and void as it constituted an infringement of Articles 12 (1) and 12 (2) of the Constitution which declare and recognize the right of equality.
Ranasinghe, J. (as he then was), Sharvananda, J. (as he then was) and Victor Perera, J agreeing at p. 396 said:
" The question that arises is whether the material so available to the 1 st. respondent could be said to have been sufficient to justify the 1 st. respondent's action in making the order P2? Was it reasonable for the 1 st. respondent to have decided to do what he did upon such material? It has to be remembered that the material placed before the 1 st. respondent was so placed before him by senior responsible offi- cers, officers whose sense of responsibility and bona fides the 1 st. respondent would have had no reason to doubt. The 1 st. respondent could not himself have personally undertaken an investigation. Time was a decisive factor. If meaningful action was to be taken, it had to be speedy enough to prevent the mischief apprehended. Against this back- ground is it possible to say that the 1 st. respondent was wrong in doing what he did....? It may be that another might have waited for more material before proceeding to act. The question, however is whether the decision of the 1 st. respondent to act in the way he did was such that no reasonable person would have done what he did? Was his decision to act so very unreaonable? Was his exercise of judgement so hopelessly indefensible? Has the exercise of the discre- tion vested in him been wholly unreasonable and capricious? I think not. May be another would not have done what the 1 st. res -pondent did; but the 1 st. respondent cannot be said to have done what no reasonable person would have ever done in such circumstances. The good faith of the 1 st. respondent, though attacked on the grounds of political vengeance, improper motives, failure to exercise his discretion, acting on the dictation of the President, and partiality has not been shaken.
In this view of the matter, I am of opinion that the order P2 (and Also P1) is valid....."
In my view, a decision of the Secretary, does not become reasonable merely because the source of his information are senior police officers. It is evident from the affidavit of the Secretary that he was aware that those officers themselves had not personally gone into the matter, despite the extraordinary seriousness of the matter, but were merely reporting that there was information from " reliable sources ". The facts established in these proceedings, which were easily ascertainable before or soon after the arrest, show how unreliable they were. Are the so-called informants of the " intelligence " services solely sneaks concerned with furtively providing fault-finding information? Are there no police officers or informants who are independent and straightforward who might provide other information? How is it that in this case a great deal of material that might have been quite easily found out escaped the 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 was based on information furnished by senior police officers ; nor is it whether his decision was " hopelessly indefensible " or " wholly ureasonable and capricious " or simply wrong : What has to be decided by us is not whether he thought or sincerely believed that Mr. Cooray was conspiring to harm or assassinate the President, but that he was personally satisfied on reasonable grounds based upon the three initial reports submitted to him and the additional report submitted to him, that it was necessary to arrest and detain Mr. Cooray to prevent him from assassinating or causing harm to Her Excellency the President and thereby acting in a manner prejudicial to national security and/or public order.
Learned counsel for the respondents, Mr. De Silva, referred to the reasons given in the affidavit of the Secretary and submitted that in the light of the material contained in the reports, the Secretary was not only justified in issuing the Detention Order, but that he would have been guilty of a dereliction of duty had he refrained from doing so. On the other hand, learned counsel for the petitioner, Mr. Choksy submitted that the material placed before the Secretary did not convince, and at any rate could not have reasonably persuaded, the Secretary to be satisfied that it was necessary to detain Mr. Cooray and that in the circumstances, the Secretary was not acting according to the procedure prescribed by Regulation 17 (1) and was therefore acting in violation of Article 13 (1) of the Constitution which states that no person shall be arrested except according to procedure established by law.
I agreee that the Secretary was not obliged to carry out the investigation himself, but he had to satisfy himself, not merely on the material submitted to him but also upon " such further additional material as may be called for by him " : [Regulation 17 (1)]. He had the power to call for, and the duty to consider additional material. He was obliged to make his decision upon a proper self- direction of the facts upon which his judgement was based. He was obliged to call his own attention to the matters he was bound to consider. He failed to do so. It is of significance that whereas regulation 17 (1) of the 1989 regulations states that " Where the Secretary to the Ministry of Defence is of opinion ......", the corresponding current (1994) regulation states that " where the Secretary is satisfied upon the material submitted to him, or upon such further material as may be called for by him...".
Admittedly, there was nothing to prevent the Secreteray calling for and considering additional material under the earlier regulation. However, the 1994 regulation specifically draws the attention of the Secretary to what he might do. The possibility that there might be two sides to to the story did not prompt the Secretary to direct 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 not questioned or his statement recorded prior to his arrest, but he adds that Mr. Cooray 's statement was recorded after the Detention Order had been issued. Mr. Cooray was arrested on the 16 th. of June 1997 and he was interrogated and his statements recorded on the 17 th. 18 th. 19 th. 20th. 23rd. and 24th. June and on the 8 th. and 11th. of July. He had been abroad from the 24 th. of June 1996 and returned to Sri Lanka on the 28 th. of April 1997. He was questioned about his family and his activities and movements after his return. However, although he was arrested and detained because he was supposed to have been involved in a conspiracy to assassinate the President, no questions were put to him with regard to that matter until Mr. Cooray himself had raised the matter with the officers interrogating him on the 23 rd. of June 1997.
He had read an article (produced and marked in these proceedings as document P 3) appearing on the front page (and continued on page 5) of the Sunday Times of the 22 nd. of June under a banner headline stretching across the page"Plot against the President" in which the first four paragraphs state as follows:
"The detention of former UNP strong man Sirisena Cooray - in the head- lines for the past six days with widespread conjecture and speculation - took a sensational turn last night when state television and radio announced that he was being grilled regarding an alleged plot to kill President Kumaranatunga.
Soon after the bombshell announcement, C.I.D. Chief T.V.Sumanasekara told The Sunday Times last night that they had received some information regarding an alleged plot against the President and every aspect was being probed.
"There is a little bit of evidence and we are continuing investigations on this line,"he said.
The state run media last night said Mr. Cooray had been arrested following information about a plot to assassinate the President, but Mr. Sumanasekara declined to confirm the state media reports."
The report goes on to speculate as to other reasons why Mr. Cooray was arrested. It may or may not explain why the matter of the alleged conspiracy was not pursued. I make no comment on that matter.
Mr. Cooray also had read an article (produced and marked in these Proceedings as document P 3 (a) appearing on the front page of the Daily News of the 23 rd. of June under a banner headline stretching across the page"plot will be disclosed soon"in which it was stated as follows:
"The details of the alleged plot to harm President Chandrika Bandaranaike Kumaratunga, uncovered recently, will be disclosed in the next few days CID sources said yesterday.
The evidence pertaining to this plot uncovered during CID investigations into the activities of former UNP Minister B. Sirisena Cooray are now being put together, these sources added.
Following the discovery of this plot, the CID also arrested another suspect who is considered an expert marksman over the weekend. The CID said the suspect was able to fire on target using two pistols simultaneously.
CID sources said evidence showed that attempts had been made to hire underworld criminals to execute this plot.
Two other suspects said to be notorious underworld characters have also been taken into custody in this connection and the CID was looking out for firearms which had been in their possession.
CID sources said they were able to elicit more evidence from these two suspects during interrogation following their arrest.
Police Headquarters sources said a UNP politician released from remand custody had held a grand dinner which was attended by several under-world criminals as well as some leading businessmen.
The CID had earlier received snatches of information regarding an alleged plot to harm the President. The plot became more evident when the CID followed up. The evidence gathered during interrogation of Mr.
Cooray (sic). Informed sources said Mr. Cooray had been arrested on information about an alleged poltical conspiracy. Mr. Cooray is alleged to have had meetings with several suspects released from jail recently.
CID sources said they hoped to reopen investigations into several earliar incidents involving the underworld in an effort to unravel the the mystery behind those incidents. Several opposition politicians too are to be questioned in this connection and two more underworld characters, to be arrested soon, will be produced as prosecution witnesses."
Mr. Cooray states in his affidavit - and this has not been controverted that on the 23 rd. of June he drew the attention of the officers who were interrogating him on that day to these two news reports.
During the afternoon of the 24 th. of June, and only upon that occasion, was Mr. Cooray asked whether he was involved in a plot to assassinate or harm the President. The petitioner denied any involvement in such a conspiracy and requested specific particulars of the information alleged to have been received by the police against him so that he might respond: but he was not furnished with such information. The Court had earlier on that day granted the petitioner leave to proceed in this matter. What is the explanation for this extraordinary anxiety to be uninformed? Mr. De Silva submitted that it was a matter of police"technique"to first ascertain peripheral matters and then come to the relevant question. If those were his instructions, I must say that, placing myself in the position of a"reasonable man"I am quite surprised that it took over a week to get over the peripheral matters; and that it is matter of amazement that when, according to the Secretary 's affidavit, the Director of the National Intelligence Bureau had in his report of the 11th. of June stated that the President was to be assassinated or injured"in the near future", no question was put to Mr. Cooray until he himself had raised the matter on the 24 th. of June. If the report in the Sunday Times that Mr. Sumanasekara had said that there was no more than"a little bit of evidence" is accurate, how does one reconcile that statement with what Mr. Sumana-sekara reported to the Secretary? He has not filed an affidavit con-
tradicting the accuracy of the Sunday Times report which was an item evidence in this case.
There were, as we have seen, many things said in each of the reports of the police officers relied upon by the Secretary that were vague and suspicious. The secretary did not call for any clarification on the report of the Inspector-General of Police, nor on the report of the National Intelligence Bureau. With regard to the report of the Deputy Inspector-General of Police dated the 14 th. of June 1977, how- ever, he says he sought clarification. But what did he ask?:"Please identify the manner in which the persons mentioned in your report would be a threat to national security."Surely, if the Secretary did believe the allegation that"the detenue had sought [the] assistance of certain members of a group involved in the commission of dangerous criminal acts to cause harm to or assassinate Her Excellency the President", there should have been no doubt in his mind that there was a threat to National Security? Why did he not also ask him whether it would have been a threat to public order when in the Detention Order and in his affidavit he states that the detention was ordered to prevent a threat to both national security and public order? They are two different things although they may co-exist. In his letter to the Chairman of the Advisory Committee the Secretary states that the arrest was made because of an alleged"threat to national security". There is no reference to public order. The Secretary of the Ministry of Defence required no education on the issue whether a conspiracy to assassinate or harm the President would affect national security? Surely, there was no need for him to be instructed by any person on that matter? The decision whether certain activities of a citizen constitutes a threat to National Security is a matter for the Secretary and not for a police officer, whatever his rank might be. The power of the Secretary given by regulation 17 (1) concerns the physical liberty of persons, including those who have not yet, nor ever committed an offence. It is therefore an exceedingly great power, indeed an awesome power, that must be exercised with a corresponding degree of responsibility. There is public respect for the independence and impartiality of the Secretary, albeit tinged with latent reverential fear. The Secretary must fulfil public expectations and be independent and impartial.
Obviously, in appropriate circumstances, as for instance, in the Janatha Finance and Investments case (supra), the Secretary may, rely upon the opinions, conclusions and recommendations of senior police offic-ers. Each case, however, must depend on its own circumstances; but the cardinal, invariable principle in each case is that the person making the order of detention must be"satisfied".
It should be pointed out that in his letter dated the 3 rd of July 1997 to the Chairman of the Advisory Board appointed in terms of Regulation 17 (5), to enable the Chairman to inform the persons det-ained of the"reasons"for their arrest, the Secretary states that the Detention Orders on Mr. Cooray and three other persons"have been issued after 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 assistance of certain persons to cause harm to or to assassinate Her Excellency the President."The representations or submissions to the Advisory Committee made by a person arrested would be directed to respond to the stated grounds for the arrest. The grounds to be challenged would depend on the basis for the Secretary 's order: The Secretary 's letter very clearly indicates that there was but one source of information he relied on - the material submitted to him by the D.I.G., C.I.D. I am inclined to think, upon a reading of the Secretary's narration of what was contained in the reports referred to by him, that the Secretary was in fact persuaded by the D.I.G., C.I.D. to issue the Detention Order and that the opinion formed was not that of the Secretary.
In the matter before us, the Secretary in my view abdicated his authority and mechanically signed the Detention Order. As I have pointed out, the Secretary 's decision was not reasonable in the sense that it was not supported with good reasons, and therefore it was not a decision which a reasonable person might have reasonably reached.
His decision was not only wrong, but in my view unreasonably wrong. This happened because he did not satisfy himself but allowed himself to be misled. It was not his opinion: Malinda Channa Pieris [1994] 1 SLR 1 at p. 58. The matter before us is a good illustration of what Wade (p.401) describes as"self - misdirection"and therefore one in which the Secretary cannot be held to have been"satisfied".
Taking a person into custody and detaining him in pursuance of such a decision is not in accordance ith"procedure established by law"and it is therefore in violation of Article 13 (1) of the Constitution: Sasanasiritissa Thero and others v De Silva and others, [1989] 2 SLR 356: Weerakoon v Weeraratne SC Application 42/92 SC Minutes 16 November 1992; Somasiri v Jayasena and others, SC Application 141/88 SC Minu-tes 1 March 1991; Dissanayake v Mahara Prisons, SC [Spl.] 6 / 90 SC Minutes 28 March 1991; Channa Peiris v A.-G. [1994] 1 SLR 1 at p. 59.
The form and contents of Detention Order suggests it was mechanically issued
The secretary states in the Detention Order dated the 16th. of June 1997 that he was making the order being of opinion and with a view to preventing the person specified and residing at the place mentioned in Column 1 of the schedule to this order from acting in any manner prejudicial to National Security or to the maintenance of public order, it is necessary so to do ....
The order is set out in a standard, pre-prepared form: the only variations between one case and the other relate to information, furnished at the bottom of the page of the order in the schedule, relating to [1] the date of the order; [2] the name and address of the person to be detained; and [3] the place of detention. The standard form used in this case follows the forms used when the 1989 Emergency Regulations were in operation when the Secretary was required to be of the ' opinion ' that the detention was necessary to pre- vent the person ordered to be arrested and detained from accting in any manner prejudicial to national security or to the maintenance of public order. The regulations introduced by Gazette Extraordinary 606/4 of 18 April 1990 substituted the word 'satisfied ' for the word 'opinion'. Due to judicial interpretation, there may be no practical difference in the use of the terms: Channa Peiris and others v A.-G. and others, [1994] 1 SLR 1 at p. 58. But, the retention of the older term in the form suggests a lack spontaneity that one would expect from an individual acting in accordance with the specific obligation of being personally satisfied imposed on him by the privisions of the law he invokes: the form used suggests that the Secretary was driven not by his own thoughts but by the stimulus derived from an outside source: the letter to the Chairman of the Advisory Committee indicates that the Secretary relied on the report of the D. I. G. Moreover, the use of the words ' acting in any manner ', borrowed from Regulation 17, rather than the specific manner in which the person ordered to be detained was suspected of being likely to act in a manner prejudicial to the National Security or to the maintenance of public order, raises doubts as to whether the Secretary did in fact give his mind to the question whether the person ordered to be arrested and detained was likely to act in a manner prejudicial to National Security or to the maintenance of public order: had he been convinced, what was the difficulty in specifically stating his grounds if he had any? In my view, he did not state any grounds, because he had no grounds. The police officers who advised the Secretary might have been hoping that some evidence might turn up; but at that stage all they had was mere suspicion based on what Mr. Sumanasekara had described in his interview reported in the Sunday Times of June 22 1977 - six days after the arrest in pursuance of the Detention Order - [which was filed as evidence in this case by the petitioner and not controverted] that there was"a little bit of evidence and we are continuing investigations on this line."
Regulation 17 (1) empowers the Secretary to detain a person on the specific purposes laid down therein including the prevention of persons from acting in any manner prejudicial to the national security or to the maintenance of public order. As pointed out in Kishori Mohan V The State of West Bengal, AIR 1972 SC 1749, national security and public order are two different things. Admittedly, in the circumstances of a particular case, the Secretary might be satisfied that both national security and public order were in jeopardy. In such an instance, he should clearly indicate that that was the case. However, where he states, as in this case, that it was necessary to detain the person to prevent him from acting in a manner"prejudicial to the national security or to the maintenance of public order"(the emp- hasis is mine), the satisfaction of the Secretary, in the words Shelat, J. in Kishori Mohan (supra),"was on the disjunctive and not conjunc- tive grounds, which means that he was not certain .... If he felt the necessity to detain the [person] from the activities described by him in the grounds of detention on the ground that those activities affec- ted or were likely to affect both the public order and the security of the State he would, no doubt, have used the onjunctive "and" and not the disjunctive"or"in his order. But, as the order stands, it would appear that he was not certain whether the alleged activities of the [the person ordered to be detained] endangered public order or the security of the State, or he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other and merely reproduced mechanically"the language"of the regulations empowering detention.
On the face of it, the order suggests that the Secretary of the Ministry of Defence was acting mechanically without due regard to the circumstances of the particular case in respect of which he was issuing the order of detention. As we have seen, orders signed mechanically show that the person making the order was not satisfied that the arrest was warranted. If he is not satisfied, the Secretary is not empowered to issue a Detention Order. If he nevertheless issues such an order, an arrest in pursuance of such an order is not accord-ing to procedure established by law and, therefore contravenes Article 13 (1) of the Constitution and is unlawful and invalid.
Was Mr. B. Sirisena Cooray given reasons for his arrest?
Article 13 (1) of the Constitution not only states that no person shall be arrested except according to procedure established by law, but also that"Any person arrested shall be informed of the reason for his arrest".
The petitioner in his affidavit states that (1) the Detention Order did not state any reason for the arrest; (2) the police officers who made the arrest did not give Mr. Cooray any reasons for the arrest; (3) the police officers were not able to state any reasons upon being questioned; and (4) the police officers declined to record a statement of Mr. Cooray to the effect that he inquired from them as to how he was said to be acting in a manner prejudicial to the national security or the maintenance of public order. This is confirmed by Mr. 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 custody and detained": and that (2) Superintendent of Police Sisira Mendis who served ths Detention Order has stated in his affidavit that he had informed Mr. Cooray of"the purpose"for which he was taken into custody and detained. The Secretary later states that he had by his letter dated the 3 rd. July 1977 informed the Chairman of the Advisory Committee appointed in terms of Regulation 17 (5)"the reasons for the detention of [Mr.Cooray] to enable him inform [Mr. Cooray] of the same in terms Regulation 17 (9) of the said Regulations." As we have seen, the information furnished to the Chairman were not "reasons" ; they were merely inferences. The letter to the Chairman of the Advisory Committee relates to Detention Orders served on Mr. Cooray and the three others who constituted a threat to national security by conspiring to cause harm to or assassinate the President.
The Detention Order does indeed set out the purpose for which Mr. Cooray was being arrested and detained: It states that the Secretary deemed it necessary to take into custody and detain Mr. Cooray" being of opinion and with a view to preventing ....[him] from acting in any manner prejudicial to the National Security or to the maintenance of Public Order". Mr. Mendis who executed the order also states that he informed Mr. Cooray of the"purpose"of the arrest. Article 13 (1) of the Constitution, however, states that"Any person arrested shall be informed of the reason for his arrest."Arguably, Having regard to the letter of the Secretary to the Chairman of the Advisory Committee, the Secretary appreciated the difference. However, he seems to have assumed that the task of giving reasons was that of the Chairman of the Advisory Committee when the arrest was one that was made in terms of Regulation 17 (1) and that it was sufficient for him and the officer making the arrest to state the purpose of the arrest.
The whole scheme of the criminal law assumes it to be a basic need that an accused should clearly understand what he is supposed to have done. Section 23 (1) of the Code of Criminal Procedure (CCP) states, inter alia, that"In making an arrest the person making the same ... shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested". Section 53 states that "the person executing the warrant of arrest shall notify the substance thereof to the person arrested and, if so required by the person arrested, shall show him the warrant or a copy thereof signed by the person issuing the same."A magistrate holding a preliminary inquiry in a case triable by the High Court is required by the section 146 CCP"to read over to the accused the charge or the charges in respect of which the inquiry is being held". If at the end of that inquiry the magistrate does not discharge him, section 150 CCP requires the magistrate to"read the charge to the accused and explain the nature thereof in ordinary language."Section 164 CCP provides, inter alia, that every charge shall state the offence with which the accused is charged and that it should be"read to the accused in a language which he understands." Section 165 CCP provides that particulars of the commission of the offence must be so stated as to give an accused sufficient notice of the matter with which he is charged. At a su- mmary trial, the magistrate is required by section 182 CCP to frame a charge and read such charge to the accused."At a High Court trial, section 195 CCP requires that a copy of the indictment be served on the accused, and sections 196 and 204 CCP require that"the indict- ment shall be read and explained to the accused."
Article 13 (1) of the Constitution elevates a principle that was a part of the ordinary law to the status of a fundamental right. When the relevant provision of the Indian Constitution were being discussed in the Constituent Assembly, Dr. Ambedkar - the moving spirit behind the draft - explained to the Assembly on September 15 th. 1949 that this was being done because the right to be informed of the reasons for one 's arrest was one of the"most fundamental priciples which every civilized country follows."Article 14 of the International Covenant on Civil and Political rights states that among the "minimum guarantees" everyone entitled to is the right"to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him."
Mr. S. Sharvananda, retired Chief Justice, in his treaties on Fundamental Rights at page 141 (cited with approval in Channa Peiris v A.G. [1994] 1 NLR 1 at p. 67 ) explains why it is necessary that reasons should be given and why the reasons should be promptly given: He states as follows:
"the requirement that a person arrested should be informed of the reason for his arrest is a salutory requirement. It is meant to afford the ealrliest opportunity to him to remove any mistake, misapprehension or misunderstanding in the mind of the arresting authority and to disabuse the latter's mind of the suspicion which triggered the arrest and also for the arrested person to know exactly what the allegation or the accusation against him is so that he can consult his attorney-at-law and be advised by him: Mariadas v Attorney General (FRD Vol. 2 397). All the material facts and particulars must be furnished to the arrested person because they are the reasons or grounds for his arrest to enable the person to understand why he has been arrested ... The necessity to give reasons serves as a restraint on the exercise of power and ensures that the power will not be arbitrarily employed."
It is insufficient for the person arrested to be given the purpose or object of the arrest, such as those set out in Regulation 17 (1) and reproduced in the Detention Order in this case: Selvakumar v Douglas Devananda and others, SC Application 150 / 93, SC Minutes 13 July 1994. he must be given the reasons, i.e. the grounds - all the material and pertinent facts and particulars that went to make up the mind of the Secretary and not merely the inferences arrived at by the Secretary: Shaini Soni and others v Union of India and others, (1980) SCC 544.
For it is then that the person will have information that will enable him to take meaningful steps towards regaining his liberty, e.g. by showing that there was a mistake or by rebutting a suspicion or ex-plaining a misunderstanding, with the result that, perhaps after further inquiries, he may be saved from the consequences of false accusations: Gunasekara v De Fonseka (1972) 75 NLR 246 Wicramabandu v Herath SC Application 115 / 91 SC Minutes 3 April 1992 ; Channa Pieris v A.G. [1994] 1 SLR 1 at p. 68 ; Faurdeen v Jayathileke SC Application 366 /93 SC Minutes 8 September 1994 ; Kumarasena v Sriyantha SC Application 257 / 93 SC Minutes 23 May 1994 ; Christie v Leachinsky 1947 A.C. 573.
Mr. De Silva submitted that there was no requirement under the Emergency Regulations to give reasons for an arrest and in support of that view he cited the dictum of Kulatunga, J in Sasanasiritissa Thero and others v De Silva and others, [1989] 2 SLR 356 at 363-364 which followed the decision of this Court in Vijaya Kumaranatunga v G. V. P. Samarasinghe and others [1983] 2 SLR 63. In Kumaranatunga, Soza, J. (Ranasinghe, J. agreeing ) observed: The contents of the order'A' sufficiently apprised the petitioner that he was being arrested in contravention of Regulations 23 and 24 of the Emergency Regulations. Among the offences specified in Regulation 24 there are the offences of arson and theft which are offences under the Penal Code for which arrest without a warrant is justifiable under the Criminal Procedure Act. So here we have an arrest by a police officer with reasons given and despite the fact that he was acting under the authority of the Detention Order marked' A', his action can be justified under the Powers vested in him under the Code of Criminal Procedure. Such an arrest is in accord with the provisions of Article 13 (1). "The emphasis is mine". The petitioner in that case, according to Soza, J., was given reasons in the Detention Order. Soza, J. however stated that Article 13 (1) of the Constitution was subject to such restrictions as may be prescribed by law, including the Emergency Regulations.
These Regulations, he said, "overshadow the fundamental rights gua- ranteed by Articles 13 (1) and (2) of the Constitution." Soza, J. went on to state as follows:
"..... the communication of the reason for the arrest at the time of the arrest is not imperative when the Emergency Regulations are in operation. This is obviously because if reasons are disclosed at the time of taking a person into custody, it may enable counteraction to be taken to frustrate the very purpose of the arrest and hamper and hinder the steps taken by the Government to protect the community and prevent grave public disorder. No doubt, a person being arrested must know why he is arrested. During times of national emergency, this requisite has to be satisfied in accordance with the Emergency Regulations at a later stage and soon enough for the ditenu to make representations against his arrest and detention. According to Regulation 17 (4) it is obligatory for one or more Advisory Committees to be set up consisting of persons appointed by the President. Any person aggrieved by an order made against him under Regulation 17 may make his objections to the appropriate Advisory Committee. It is the duty of the Chairman of the Committee to inform the objector of the grounds on which the order under this regulation has been made and to furnish him with such particulars as are in the opinion of the Chairman sufficient to enable him to present his case. It is, therefore always open to the detenu to apprise himself of the grounds of arrest. The express provision in our Regulations stipulating that the Chairman of the Advisory Committee should inform the detenu of the grounds of detention implicitly makes a communication of reasons at the time of arrest unnecessary."
Mr. De Silva also referred to the judgement of Kulatunga, J. in Wick- remabandu v Cyril Herath and others [1990] 2 SLR 348.
Kulatunga, J at 381 stated as follows:
"As a matter of principle the requirement in Article 13 (1) that an arrested person shall be informed of the reason for his arrest may no longer be limited to a person accused of a crime. In the context of the freedom from arbitrary arrest it can extend to a person arrested under any law for preventive detention. However at Common Law the right was given to a person accused of a crime - Christie v Leachinsky, 1947 AC 573 ; Muttusamy v Kannangara, 52 NLR 324. The information of the ground of arrest or of the offence has to be given, Inter alia, to afford to the suspect an opportunity to show that there is some mistake as to identity - Gunasekara v Fonseka, 75 NLR 246. It is this right which has been elevated to a fundamental right. Viewed in this background there can be no objection to a restriction of this right in its application to a person in preventive detention who is not arrested on suspicion for an offence, even though a total denial of the right may be questioned. Presumably for this reason laws for preventive detention including our Regulation 17 do not insist on the requirement to notify the ground of suspicion at the time of arrest...
Accordingly, I am of the view that Regulation 17 does not amount to a denial of the fundamental rights enshrined in Article 13 (1) ... or the Constitution. "
After setting out the provisions of the regulations relating to Advisory Committee appointed under Regulation 17, Kulatunga, J. at pp. 384 - 385 states as follows:
"Although there is no provision in Regulation 17 for serving on a detenu a copy of the order at the time of his arrest I am of the view that the detenu should at least be informed of the fact of his arrest on such order except where the exigencies of the case preclude it. A copy of the detention order should be given to the detenu. Under Article 22 (5) of the Indian Constitution, the duty to afford the detenu the earliest opportunity of making representations against the order as well as to inform him of the grounds of the order are in the Authority making the order. The Supreme Court has held that in order to make the right of making representations effective, the detenu should also be furnished with particulars of the grounds of his deten-
tion sufficient to enable him to make a representation: Shibban Lal Saksena v State of U.P.., AIR 1954 SC 179.
Under Regulation 17 (6) the duty of giving grounds of the order and sufficient particulars is placed on the Chairman of the Advisory Committee to be complied with at a meeting to consider the detenu's objections. No doubt this procedure would hamper the formulation of his objections but since the regulation clearly contemplates the giving of such grounds and particulars at the commencement of the inquiry, I do not think that it will lead to injustice. If upon such communication the detenu applies for time to prepare his case, the Advisory Committee should grant a postponement. Further the fact that the sufficiency of particulars is made subject to the opinion of the Secretary cannot be construed as giving the Chairman an arbitrary power to withhold particulars which are vital to a fair hearing.
However, the Secretary may decline to furnish particulars which he cannot disclose in the public interest."
Neither Soza, J. nor Kulatunga, J. stated that the communication of reasons was unnecessary when a person was arrested under the Emergency Regulations: What they did say was that the reasons need not be given at the time of the arrest and could be given later. Article 22 (1) of the Indian Constitution states that "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the ground for such arrest."Article 13 (1) does not provide for a time. That aspect of the matter is governed by the general law. Section 23 (1) of the Code of Criminal Procedure states as follows: "In making an arrest the person making the arrest shall actually touch or confine the body of the person to be arrested unless there be submission to the custody by word or action and shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested."It is plain that the charge or the allegation should be made known at the time of the making of the arrest and not subsequently.
The fact that at the time of the hearing by the Advisory Committee the Chairman is required to inform the person objecting to his detention of the grounds on which the order of detention has been made, does not carry with it the corollary that the person arrested should not be informed of the charge or allegation at the time of his arrest: As we have seen, judges in the Criminal Court are required to explain the charges ; but that does not mean that the obligation to state the charge or allegation prescribed by section 23 (1 ) of the Code of Criminal Procedure is to be discarded. Soza, J. stated that "The express provision in our Regulations stipulating that the Chairman of the Advisory Committee should inform the detenu of the grounds of detention implicitly makes a communication of reasons at the time of detention unnecesary ". As I have pointed out, the fact that the Chairman is required communicate reasons does not lead to the conclusion that the person arrested need not be informed at the time of his arrest of the reasons for his arrest. They are matters apart. There are two rights: (1) the Constitutional right to be informed of the reason for arrest guaranteed by Article 13 (1) of the Constitution (ii) the right to be informed of the grounds of the arrest given by Regulation 17. The first is to enable a person arrested at the time of his arrest to obtain his freedom immediately by showing good cause for his release. The second is to enable him to subsequently to make a case to the Advisory Committee for his release. They are quite separate and distinct rights and the provision of the second does not in my view wipe out or restrict the first.
Regulation 17 (5) provides for the appointment of an Advisory Commit- tee "for the purpose ", it is said, of "this regulation ". Presumably, it means "for the purpose of hearing objections to detentions made under this regulation", for the Regulation 17 deals with varous matters, including matters other than those concerned with Advisory Committees. Regulation 17 (7) states that "any person aggrieved by an order against him under this regulation may make his objections to such Advisory Committee". Regulation 17 (8) states that "Any person agg- rieved by an Order under this regulation is entitled to be informed of his right to make objections in writing to such Advisory Committee as aforesaid."Naturally, every person who is imprisoned would be hurt in spirit and have cause to complain of the infliction of wrong, oppression, or distress, real or supposed to cause by the order of imprisonment. Was Mr. Cooray informed of his right? All that the Secretary states he did was to inform the Chairman of the Advisory Board the "reasons"the Chairman could give Mr. Cooray for his arrest. Assuming that a person detained necessarily feels aggrieved, what are the objections he would want to make to the Advisory Committee in terms of Regulation 17 (7)? They relate to objections against the order of detention.
How could he make meaningful, specific, objections unless he knows the grounds on which the Detention Order was issued? After stating that it is the duty of the Chairman of the Advisory Committee to inform the person objecting to his arrest of the grounds on which the order of detention was made. Soza, J. states: "It is, therefore, always open to the detenu to apprise himself of the grounds of arrest." With great respect, this is a non sequitur: How is it'always open' to a person arrested and detained to inform himself of the reasons for his arrest merely because the Chairman of the Advisory Committee is obliged to give him reasons? Reasons will be given only when the Committee meets. The duty of the Chairman of the Advisory Committee to inform the person detained arises when there is a meeting of the Committee held to consider the objections of the person detained: Regulation 17 (9). Meetings of the Committee are held to hear the objections: Regulation 17 (9). How can the person detained make meaningful objections unless he has before him the reasons for his arrest? Kulatunga, J. did appreciate the problem, but His Lordship was of the view that after the intimation of reasons, further time should be granted to enable the person detained to prepare his case. That, with great respect, does not solve the problem: Regulation 17 (7) states that "Any person aggrieved by an order against him under this regulation may make his objections to such Advisory Committee ". Regulation 17 (9) states "At any meeting of an Advisory Committee to hear such objections as aforesaid shall be presided over by the Chairman. It shall be the duty of the Chairman to inform the Objector of the grounds on which his order under regulation has been made against him and to furnish him with such particulars as are in the opinion of the Chairman sufficient to enable him to present his case."The meeting is convened in the first place to hear the objections of the objector. In order to make objections so that a meeting may be convened, the person detained must have the grounds upon which the order was made.
In any event, could the Advisory Committee have at any time given Mr. Cooray the reasons for his arrest? The Secretary did write a letter to the Chairman of the Advisory Committee on the 3 rd. of July in which he refers to the Detention Orders on Mr. Cooray and three others. He states: "These Detention Orders have been issued by me after 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 assistance of certain persons to cause harm or to assassinate Her Excellency the President. Some of the persons allegedly identified are Upali de Silva, U.L. Seneviratne, W.B. Somaratne and J.P. Jayamanne.
Further it is reported that some persons have been enlistd as Reserve Police Officers and given training in sophisticated weapons. Whereabout of some such persons trained in weapon use are not traceable today. Any Conspiracy to cause acts in furtherence of such a purpose was considered a serious threat to National Security. This letter is sent to you for the purpose of ER 17 (9) published in Gazette Extraordinary No. 843 / 12 of 4. 11. 1994."Assuming that this information was com- municated by the Chairman to Mr. Cooray (in fact it was not so done), what could Mr. Cooray have done ; obviously, he was not going to have any objection to the conclusion that a conspiracy to assassinate the President was a threat to national security. But what could he say about some "persons"who were supposed to have been enlisted as Reserve Police Officers and trained in the use of sophisticated weapons? Who were these persons? How were they linked to Mr. Cooray or to the Conspiracy? How was Mr. Cooray responsible for the fact that the whereabouts of those persons was not known? With regard to the statement that Mr. Cooray had sought the assis- tance of the persons named and others to harm or assassinate the President, Mr. Cooray would have baldly denied it, but he was not placed in a position in which he could object to the conclusion arrived at by the Secretary, for although the Secretary says that he gave the "reasons"for the arrest in his letter to the Chairman of the Advisory Committee, he did not in fact do so. As we have seen, Kulatunga, J. in Wickremabandu said that the Chairman should give the "grounds"and furnish the "particulars"on which the Secretary's decision was made so that the person detained could state his case. This is plainly stated in Regulation 17 (9). When he stated that Mr. Cooray had conspired with certain persons to harm or assassinate the President, the Secretary was stating his inference from certain facts: His duty was not merely to state his inference but also the grounds on which the inference was based.
In India, Article 22 (5) of the Constitution states: "When any person detained in pursuance of an order made under any law for Preventive detention, the authority making the decision shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a repre- sentation against the order."There is no corresponding provision in the Constitution of Sri Lanka. The procedure 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 The union of India and others, (1980) 4 SCC 544, the Supreme court of India stated as follows:
"The Article has two facets: (1) the comunication of the grounds on which the order of detention has been made ; (2) Opportunity of making a representation against the order of detention. Communcation of the grounds presupposes the formulation of the grounds and formu- lation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say pertinent and proximate matters in regard to each individual case and excludes the element of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind ). It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory func- tionary, there is an implicit obligation to apply his mind to pertinate and proximate matters only, eschewing the irrelevent and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be seen to pertain the pertinent and proximate matters and should comprise all the constitu- ent facts and materials that went to make up the mind of the statutory functionary and not merely the inferential conclusion .... The matter may also be looked at from the point of view of the second facet of Article 22 (5). An opportunity to make a representa- tion against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exer- cise in futility. Whatever angle from which the question is looked at, it is clear that "grounds"in Article 22 (5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The "grounds"must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the "grounds"must be supplied to the detenu as part of the "grounds".
The Court referred to the decision of the Supreme Court of India in Iccu Devi Choria v Union of India, (1980 ) 4 SCC 531, 539 where it was stated that "If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds cannot be said to be complete without them..." (per Bhagwati J, for the Court ). In that case, it was held that if the requirement to give grounds of detention and furnish the materials relied upon had not been complied with, the continued detention of the detenu would be "illegal and void".
The secretary has not stated the grounds of detention. He has merely stated an inference which he states was based on the report of the Deputy Inspector-General of Police. In the circumstancs, it was imparative that that report should have been made available to Mr. Cooray. If the report contained material that was not in the public interest to disclose, the Secretary was at liberty not to give that report, provided that he did not state, as he did, that that report was sole basis for his inference. What he was obliged to do was to state the grounds: he did not do that, but referred to the report as his grounds. The failure to comply with the requirements of Regulation 17 with regard to the matter of informing Mr. Cooray of the grounds of detention makes his continued detention illegal and void and viola- tes Article 13 (1) of the Constitution.
Admittedly, the exercise and operation of the fundamental rights decla- red 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 the interests of national security, "public order" and certain other matters specified in Article 15 (7) of the Constitution. "Law", for this purpose includes regulations made under the law for the time being relating to public security and would, therefore, include the Emergency Regulations. Soza, J, in Kumaratunga v samarasinghe (1983) 2 FRD 347 at p. 359 stated that the Emergency Regulations "overshadow the fundamental rights guaran- teed by Articles 13 (1) and 13 (2) of the Constitution". If he meant that the Emergency Regulations towered above the Constitutional rights guaranteed by Articles 13 (1) and 13 (2) and cast those rights into the shade so as to obscure those rights with complete darkness, I would, respectfully, disagree with him. It comes as no surprise that the Emergency Regulations do no such thing. Why ? Because it cannot do such a thing: An amendment or repeal of Constitutional provisions can only be effected in accordance with the provisions of Chapter XII of the Constitution. Emergency Regulations may, in terms of Articles 155 (5), override, amend or suspend the operation of any law, except the provisions of the Constitution. On the other hand, If Soza, J. meant that the Emergency Regulations overspread the Constitutional rights with some influence by imposing certain restrictions on the operation and exercise of such rights, I would then, respectfully, agree with him. However, although such restrictions on fundamental rights may be imposed, they cannot be restricted to a point of denial: per Kulatunga, J. at p. 381: cf. per H. A. B. de Silva, J. ( Fernando, J. agreeing ) at p. 359 in Wickremabandu (supra). Moreover, Emergency Regulations restricting the exercise and operation of fundamental rights may be made only for the reasons specified in Article 15 (7) of the Constitution and must be confined to those reasons in their construction and interpretation. "When provisions affecting the liberty of the subject are in question inroads into them must be strictly scrutinized and contrued.": per Samarakoon, CJ in Kumaranatunge v Samarasinghe (supra). As an organ of government, the role of the judiciary is clear: Article 4 ( d ) of the Constitution states that "the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided. "Any restriction of the exercise and operation of the fundamental rights declared and recognized by Article 13 (1) can only be made by "law": Article 15 (7). We are obliged to respect, secure and advance fundamental rights. We can -not impose restrictions on any fundamental right guaranteed by the Constitution: Such restrictions may only be prescribed by law - by an Act of Parliament or by regulations made under the law relating to public security. No such restriction has been imposed: Channa Peiris v A.G., [1994] 1 SLR 1 at p. 63.
In India, a distinction is drawn between ordinary arrests and arrests relating to preventive detention. Article 22 of the Indian Constitution makes its guarantee of the right to be informed of the grounds of arrest as soon as may be, inapplicable to any person who is arrested or detained under any law providing for preventive detention. There is no such distinction recognized by our Constitution. And as far as I can see, there is no law ( including Emergency regulations ) that restricts the exercise and operation of the right to be given the reason for arrest declared and recognized by Article 13 (1) of the Constitution: Channa Pieris v A.G., [1994] 1 SLR 1 at p. 63. And although the Emergency Regulations expressly make inapplicable certain provisions of the Code of Criminal Procedure, section 23 of that Code is not one of those peovisions. Therefore persons who are arrested - whether under provisions of the ordinary law or under the Emergency Regulations - have a constitutional right to be informed of the reason for the arrest ( Channa Peiris v A.G., [1994] 1 SLR 1 at p.63 ): and a statutory right at the time of arrest to be informed of the nature of the charge upon which he is arrested.
Mr. De Silva submitted that preventive detention related to cases in which no offence had yet been committed, and that, therefore, no reasons could be given in such cases and, therefore, the law was that in cases of preventive detention no reasons were required to be given. He referred to the judgement of Kulatun