009-SLLR-SLLR-1990-2-SOMAWATHIE-v.-WEERASINGHE-AND-OTHERS.pdf
SOMAWATHIE
V.
WEERASINGHE AND OTHERS
SUPREME COURT.
BANDARANAYAKA. J., AMERASINGHE. J. AND KULATUNGA. J..
S. C. APPLICATION. No. 227/88.
AUGUST 24. 1990 AND SEPTEMBER 19 AND 21. 1990.
Fundamental Rights – Application by wife complaining of infringement of FundamentalRights of husband – Has wife locus standi-Article 126 of the Constitution.
Held :
(Kulatunga J. Dissenting on question of law). Under Article 126(2) of the Constitution apetitioner can complain of the violation only of his or her own fundamental rights and not ofthe fundamental rights of any other person. The petition can be filed by a petitioner alleginghis own rights to have been violated or by an Attorney-at-Law acting on such petitioner'sbehalf. In this case the petitioner was complaining of the violation of her husband'sfundamental rights. She had no locus standi to maintain the application.
Per Amerasinghe. J :
"How should the word of this provision of the Constitution (Article 126(2)) beconstrued ? It should be construed according to the intent of the makers of theConstitution. Where, as in the Article before us. the words are in themselves preciseand unambiguous, and there is no absurdity, repugnance or inconsistency with the restof the Constitution, the words themselves do best declare that intention. No more canbe necessary than to expound those words in their plain, natural, ordinary, grammaticaland literal sense'.
Cases referred to :
Sussex Peerage Claim (1844) 11 Cl. & Fin 85, 143
Grey v. Pearson (1857) 6 H.L. 61. 106
Moti Ram Deka, Sudhir Kumar Das and Priya Gupta v. General Manager North EastFrontier Railway and General Manager, North Eastern Railway AIR 1964 S. C. 600,621
W. Ansalin Fernando v. Sarath Perera, O. I. C., Chilaw Police Station et at. – S.CApplication No. 18/87 • S.C. Minutes of 21.05.1990
Jones v. Wrotham Park Estates 1980 A. C. 74, 105, 106
Western Bank Ltd. v. Schindler [1977] Ch. 1. 18
Thompson v. Gould & Co. 1910 A.C. 409, 420
Vickers, Sons and Maxim Ltd. v. Evans [1910] A. C. 444, 445.
Peoples Insurance Co., Ltd., v. Sardar Singh Caveeshar A.I.R. 1962 Punjab 105
State Trading Corporation of India Ltd., v. The Commercial Tax Officer and OthersA.I.R. 1963 S.C. 1811
Srimathi Champakam Dorairajan and Another v. The State of Madras A.I.R. 1951Madras 120
Dupont Steel Ltd., v. Sirs 1980 1 All E.R. 529
State of Bihar v. Kameshwar Singh A.I.R. 1952 S.C. 252, 273, 309
In the matter of the Central Provinces and Berar Sales of Motor Spirits and LubricantsAct 1938. All India Reporter 1939 Federal Court of India 1
A. K. Gopalan v. State of Madras A.I.R. 1950 S.C. 27, 42
Keshavan Madhava Merton v. The State of Bombay A.I.R. 1951 S.C. 128, 129paragraph 5
Rananjaya Singh v. Baijnath Singh and Others A.I.R. 1954 S.C. 749. 752
Ramakrishna Singh Ram Singh and Others v. State of Mysore and Others Ari.R.1960 Mysore 338, 345
Kesavananda Bharati v. State of Kerala 1973. 4 S.C. 225
Loan Association v. Topeka 622 L. ed 455
Wijesiriv. Siriwardena 1982 1 Sri L.R. 171, 175
Priyasiriv. Fernando A.S.P 1988 1 Sri L.R. 173, 176. 180
Christie v. Leachinsky 1947 A.C. 573
Wickremabandu v. Cyril Herat et at S.C. Application No. 22/88 Supreme CourtMinutes of 06th April, 1990.
APPLICATION under Article 126 alleging infringement of fundamental rights underArticles 11,and 13 of the Constitution.
Sooriyarachchi for petitioner.
S. Wijesinghe. P.C. with Mr. Somasiri for 2nd and 3rd respondents.
N.G. Amaratunga, S.S.C. for the 1st and 5th respondents.
Cur. Adv. Vult.
November 20, 1990AMERASINGHE, J.
a
The petitioner complains of the infringement of the fundamental rightsguaranteed by Articles 11 and 13 of the Constitution. The complaint isnot based on the violation of the petitioner's own rights. It is based onthe violation of the rights of her husband.
Learned Senior State Counsel and Mr. Wijesinghe, P.C. submittedthat this Court was precluded from entertaining the petitioner'sapplication. They submitted that Article 126(2) of the Constitutionprovides that where any person alleges that any fundamental rightrelating to such person has been infringed he may either himself or by anattorney-at-law on his behalf apply to the Supreme Court by way ofpetition addressed to such Court praying for relief or redress in respectof such infringement. The alleged violations in this case neither relatedto the petitioner herself nor was the petitioner an attorney-at-law actingon behalf of a person whose rights were alleged to have been violated.Therefore, learned counsel submitted, the petitioner had no locusstandi.
Article 126(2) of the Constitution is as follows
'Where any person alleges that any such fundamental right orlanguage right relating to such person has been infringed or is aboutto be infringed by executive or administrative action, he may himselfor by an attorney-at-law on his behalf, within one month thereof, inaccordance with such rules of court as may be in force, apply to theSupreme Court by way of petition in writing addressed to such Courtpraying for relief or redress in respect of such infringement. Suchapplication may be proceeded with only with leave to proceed firsthad and obtained from the Supreme Court, which leave may begranted or refused, as the case may be, by not less than two Judges."
How should the words of this provision of the Constitution beconstrued ? It should be construed according to the intent of the makersof the Constitution. Where, as in the Article before us, the words are inthemselves precise and unambiguous and there is no absurdity,repugnance or inconsistency with the rest of the Constitution, the wordsthemselves do best declare that intention. No more can be necessarythan to expound those words in their plain, natural, ordinary,grammatical and literal sense. [Cf. Sussex Peerage Claim(1) per LordWenslydale in Grey v. Pe_arson.fi) .In Moti Ram Deka, Sudhir KumarDas and Priya Gupta v. General Manager North East Frontier Railway andGeneral Manager, North Eastern Railway (3) Suba Rao, J. at p. 621paragraph 65 said :
"The general rule of interpretation which is common to statutoryprovisions as well as to constitutional provisions is to find out theexpressed intention of the makers of the said provisions from thewords of the provisions themselves."
Construed in this way. Article 126 (2) confers a recognized positiononly upon the person whose fundamental rights are alleged to havebeen violated and upon an attorney-at-law acting on behalf of such aperson. No other person has a right to apply to the Supreme Court forrelief or redress in respect of the alleged infringement of fundamentalrights. The petitioner is neither the person whose fundamental rights arealleged to have been infringed nor the attorney-at-law of such a person.Therefore the petitioner has no locus standi to make this application.
Learned Counsel for the petitioner did not dispute the fact that interms of Article 126 (2) of the Constitution there were only two personswho could come before this Court for relief or redress, namely, theperson whose rights were alleged to have been infringed and theattorney-at-law of such a person. Learned Counsel for the petitioner,however, cited the decision of this Court in W. Ansalin Fernando v.Sarath Perera, O. I. C., Chilaw Police Station et al. (4) and submitted thatrelief or redress could on the basis of that decision be granted in othercases as well.
In Ansalin Fernando's case relief was granted where the applicationwas made by the mother of the person whose rights had been violated.No objection was raised in that case to the standing of the petitioner. Iconcurred with the judgment proposed in that case by my honourableand learned brother, Kulatunga, J. However I did not in that caseconsider the question of locus standi.
In Ansalin Fernando's case I would have come to a differentconclusion had my attention been turned towards the question of thepetitioner's standing by a submission from counsel with regard to thatmatter.
It has been suggested that in certain specified circumstances, thenext of kin may be permitted to make the application provided it issupported by an affidavit from the party whose rights have been affectedbecause this would make the application ''virtually" that of the affectedparty and in accordance with the "spirit" of Article 126 (2), the petitionermay be "excused" for a failure to make 'literal compliance' with theprovisions of that Article.
With great respect, I am unable to agree. It is not apparent that themakers of the Constitution by inadvertence overlooked and so omittedto deal with the case of persons in detention. Unless it is apparent thatthere was such an omission to deal with an eventuality that required tobe dealt with if the purposes of the Constitution were to be achieved. Iam precluded from giving any construction other than the literalmeaning of the Article. (Cf. per Lord Diplock in Jones v. Wrotham ParkEstates! 5).
Numerous applications have been entertained, and continue to beentertained, by this Court in terms of Article 126 (2) from such personsand from attorneys-at-law who have acted, and continue to act, onbehalf of incarcerated persons. If, as suggested, an affidavit from theparty affected is necessary, (an affidavit was filed in the case before us),it is difficult to understand why a proxy appointing an attorney-at-lawcould not also be signed by the person on whose behalf it is claimed thatfundamental rights were violated.
Even assuming that a certain situation had been inadvertentlyoverlooked by the makers of the Constitution, with what certainty canwe add any words to convey the intention of the makers of theConstitution, had their attention been drawn to the omission? Unless it ispossible to state with certainty the additional words that would havebeen inserted, any attempt by this Court to repair the omission in theConstitution cannot be justified as an exercise of its jurisdiction todetermine what is the meaning of a provision in the Constitution. TheCourt would go beyond its duty of construction. (Cf. per Lord Diplock inJones v. Wrotham Park Estates (ibid.)). Would they have confined theexception to those in detention? Would the requirement of allegations of
torture also have been included? Would they have confined theexception to cases where personal injury has resulted? Why wouldthese and not other criteria be included instead of or in addition to theserequirements? Who would have been declared entitled to make theapplication-the parents? spouse? children? grandchildren? otherrelatives? a mistress? a friend? a neighbour? a concerned citizen? Orwould the makers of the Constitution have conferred the right only on thenext-of kin? Why? I do not know how to repair the supposed omission inaccordance with the intentions of the makers of the Constitutionbecause I do not know, and have no way of discovering, what they mighthave said. There is nothing I can necessarily imply from the words used.In such circumstances, to add some words of my own might transformthe certain text of Article 126(2) into one that raises doubts. Judicialintervention would then, by introducing private beliefs, render adisservice to the Rule of Law which rests on the certainty of the law. (Cf.Cross, op. cit. p. 45 ; Bindra, op.cit. 990 fin. – 991).
Moreover, the separation of powers requires me as a Judge not topresume that I know how best to complete the legislative scheme. Insuch a situation, any attempt on my part to fill the supposed gaps wouldlead me to cross the boundary between construction or interpretationand alteration or legislation. It would become,in the words of LordDiplock in Jones v. Wrotham Park Estates Ltd. (5) "a usurpation of thefunction which under the Constitution of this country is vested in thelegislature to the exclusion of the Courts." (See also Sir Rupert Cross,Statutory Interpretation, 2nd Ed. at p. 45. It is one thing to put in wordsto express more clearly what the makers of the Constitution said byimplication ; but quite another to make them say what I conjecture theycould have or would have said if a particular situation had been broughtto their attention. (Cf. E.A. Driedger, Construction of Statutes. 1983,2nd Ed. 101). I do not wish to cross the boundary I have referred towithout clear necessity for doing so by reading into the Constitution alarge number of words which are not there. (Cf. per Scarman L.J. inWestern Bank Ltd. v. Schindler (6) I have no difficulty in understandingwhy, as a Judge, I should refrain from becoming unduly creative in ttysway. It is a wrong thing to do. (Cf. per Lord Mersey in Thompson v. Gould& Co., (7) per Lord Loreburn in Vickers, Sons and Maxim Ltd. v.Evans. (8).
In discharging my duties in terms of Article 4 (d) of the Constitution, Imust actively co-operate to give such fair, broad, large, liberal,
purposive and progressive construction as will best ensure that thefundamental rights declared and recognized by the Constitution arerespected, secured and advanced according to the true intent, meaningand spirit of the provisions of the Constitution. In Peoples Insurance Co.Ltd. v. SardarSingh Caveeshar, (9) Tek Chand, J. at p. 103 paragraph4 drew attention to the fact that the "naked words of the statutegoverning constitutional privileges are not always a safe guide fordetermining their applicability." His Lordship said :
“Where fundamental rights are involved, it is the sentia legis morethan the nuda verba, which throws light and gives guidance."
In State Trading Corporation of India Ltd., v. The Commercial TaxOfficer and others C ) Das Gupta. J., after holding that the corporationconcerned was not a citizen for the purpose of fundamental rights interms of the Citizenship Act, went on to state as follows at p. 1887paragraph 76 :
"That according to the respondent should end the search for light.
I am unable to agree. After all it is a Constitution that we areinterpreting and it has again and again been laid down that those onwhom falls this task have to take a broad and liberal view of what hasbeen provided and should not rest content with the meregrammarian's role. If as is undoubtedly true, a syllogistic ormechanical approach of construction and interpretation of statutesshould always be avoided, it is even more important when weconstrue a Constitution that we should not proceed mechanically buttry to reach the intention of the Constitution makers by examiningthe substance of the thing and to give effect to that intention, ifpossible."
k
"If possible". When is it to be properly regarded as possible ? Thereare limits beyond which I must not venture. * In Srimathi ChampakamDorairajan and another v. The State of Madras (11) Viswanatha Sastri,J. at pp. 130-131 paragraph 31 said :
'"We have been told on high authority that a Constitution must notbe construed in any narrow and pedantic sense especiallya. . . . Constitution with its nice balance of. . . individual rights andstate power, and that we must approach it in a broad and liberal spirit,2 –
so as, if possible, to validate legislative and administrative action. Aperson who assails the legislative or administrative action ofGovernment must carry the burden of demonstrating beyond doubtits unconstitutionality. We have also been warned by equally highauthority that we have to interpret the Constituion on the sameprinciples of interpretation as apply to ordinary law and that we haveno right to stretch or twist the language in the interest of any political,social or constitutional theory. The principle that in interpreting aConstitution, a construction beneficial to the exercise of legislative oradministrative power should be adopted, may not be of any greathelp when the statutory provisions that fall to be considered relate tothe constitutional guarantees of the freedom and civil rights ofindividual citizens against abuse of governmental power. We mustassume that there was a sufficient and indeed a grave need for theenactment of the Chapter on fundamental rights as part of theConstitution. The question before us is not as to the expediency, stillless as to the wisdom of these provisions, but is one of law dependingon the construction of the relevant articles of the Constitution. It is nodoubt a legitimate, and in the case of a Constitution, a cogentargument, that the framers could not have meant to enact a measureleading to manifestly unjust or injurious results to the nation and thatany admissible construction which avoids such results ought to bepreferred. Having regard to the precise and comprehensiveprovisions of chap. Ill of the Constitution, we are not in the happyposition of a learned Judge of the United States, who is said to haveobserved that there was no limit to the power of judicial legislationunder the "due process" clause of the 5th and 14th Amendments,except the sky. I consider it to be both legally and constitutionallyunsound, even though the invitation has been extended to us bylearned counsel, to eviscerate the Constitution by our ownconceptions of social, political or economic Justice".
Where the rights of citizens have been abridged, restricted or deniedby the Constitution, in their description or in the manner of their exercise,
I can only give effect to the intention of the makers of the Constitution,however inexpedient, or unjust or immoral it may seem. (Cf. per LordDiplockin Dupont Steels Ltd. v. S/rs(12)per Mahajan, J. in State of Biharv. Kameshwar Singh, (13). I cannot twist, stretch or pervert thelanguage of the Constitution under the guise of interpretation. In MotiRam Deka and others v. General Manager, North East Frontier Railway
and another (supra), after stating that the intention of the makers of theConstitution must be gathered from the words of the Constitution itself,Suba Rao, J. at p. 621 said :
"It is also equally well settled that, without doing violence to thelanguage used, a constitutional provision shall receive a fair, liberaland progressive construction, so that its true objects might bepromoted."
In the matter of the Central Provinces and Berar Sales of MotorSpirits and Lubricants Act, 7938.(14) Chief Justice Gwyer atp. 4. said he conceived that "a broad and liberal spirit should inspirethose whose duty it is to interpret" the Constitution,"but", his Lordshipadded, "I do not imply by this that they are free to stretch or pervert thelanguage in the interests of any legal or constitutional theory, or even forthe purpose of supplying omissions or of correcting supposed errors."These words were quoted with approval by Chief Justice Kania inA. K. Gopalan v. State of Madras, (15).
As for the "spirit" of the Constitution, it is to be expected thatarguments founded upon it are, as Das J. observed in KeshavanMadhava Menon v. The State of Bombay,( 16) 'always attractive'because they have a powerful appeal to sentiment and emotion.However, it has been held that the spirit of the Constitution is an "elusiveand unsafe guide' (per Das. J. in Rananjaya Singh v. Baijnath Singh andOthers 17 Cf. per Mahajan, J. in State of Bihar v. Kameshwar Singh. (13) Inany event it cannot be invoked by a court for the purpose of altering thewords of the Constitution. In Keshawa Madhava Menon's case (ibid.).Das, J. observed that 'A court of law has to gather the spirit of theConstitution from the language of the Constitution. What one maybelieve or think to be the spirit of the Constitution cannot prevail if thelanguage of the Constitution does not support the view". The spirit of theConstitution cannot prevail against the plain language of its letter. (SeeState of Bihar v. Kameshwar Singh (supra) at p. 309 paragraph 201 perMahajan, J. and at p. 315 paragraph 231 per Das, J.; Rananjaya Singhv. Bajinath Singh (supra) at p. 752 per Das, J,; Ramakrishna Singh. RamSingh and others v. State of Mysore and others.! 18) per Das Gupta, C.J ; Kesavananda Bharati v. State of Kerala 19. To hold otherwise would, asCliford, J. observed in Loan Association v. Topeka.{20) (see also Bindra,Interpretation of Statutes, 7th Ed., at p.990), 'make the courtssovereign over both the Constitution and the people and convert the •Government into a judicial despotism."
Article 126 (2) of the constitution, construed according to theordinary, grammatical, natural and plain meaning of its language, gives aright of complaint to the person affected or to his attorney-at-law and tono other person. That was the intention of the makers of the Constitutionas expressed in that Article. If it is believed to be inadequate and worksinjustice, the appeal must be to Parliament and not to this Court. (Cf. perDas, J. in Rananjaya Singh v. Bajinath Singh (supra) at p. 752.
In the circumstances, I dismiss the petitioner's application withoutcosts.
BANDARANAYAKE, J.
Objections were taken by Counsel both for the State and for the otherrespondents that this application must fail in limine as the petitioner wasnot a person recongnized by Article 126 (2) as entitled to invoke theexercise of fundamental rights jurisdiction of the Supreme Court as thealleged violation was not in relation to the petitioner's rights but ofsomeone else's; Nor was the petitioner an Attorney-At-Law acting onbehalf of the person complaining of an infringement of his rights. A fullargument was heard on the petition including a reference to the facts inview of relief granted by this Court in a decision of this Court inW.Ansalin Fernando v. Sarath Perera, O.I.C., Chilaw Police Station, eta/.(4) where the Petitioner was the mother of the person whose rightshave been infringed. However, that case was decided without anyobjection being raised in regard to the standing of the petitioner.
I have had the opportunity of reading the judgements of both mybrothers and I would respectfully agree with the interpretation of Article126 (2) expressed by my brother Amarasinghe, J.. The objectionaccordingly entitled to succeed for the reason that the petitioner had nolocus standi.
The application is dismissed without costs.
Kulatunga, J.
BY her application filed on 13.12.88 the petitioner complains ofinfringments of fundamental rights of her husband, the 4th respondent,secured by Articles 11 and 13 of the Constitution. She claims for adeclaration accordingly and for damages against the 2nd and 3rdrespondents in a sum of Rs. 25,000, in favour of the 4th respondent.
The alleged infringements consist of unlawful arrest and detention ofthe 4th respondent by the 2nd and 3rd respondents and an assaultinflicted on him by police officers whilst he remained in police custody.
The 2nd respondent (an Inspector of Police) and the 3rd respondent(a Police Constable wrongly designated in the application as a Sergeant)headed by the 1 st respondent (a Superintendent of Police) were, at thetime of the impugned acts, members of a special unit sent fromColombo to investigate a triple murder of three young persons inRatnapura. On 22.10.88 the victims of the murder appear to have beentaken to the house of G. V. Punchinilame, the Chief Minister of theProvincial Council and tortured there after which they had been removedin a jeep and put to death in some other place.
Susantha Punchinilame, the Chief Minister's son and some policeofficers of the Ratnapura Police were suspects from the inception ofinvestigations and the 4th respondent was. according to the police, avital witness as he had been working as a servant at the Chief Minister'shouse.
Before considering the merits of this application, I have to considertwo preliminary objections urged on behalf of the respondents. Thelearned Senior State Counsel for the 1 st and 5th respondents submittedthat this application is not properly constituted as it has been filed by thewife of the petitioner who has no locus standi to apply to this Court forrelief under Article 126 (2) of the Constitution. Under that article theapplication can be filed only by the person himself whose rights areinfringed or about to be infringed or by an Attorney-At-Law on his behalf.It was also submitted that this application is out of time. Mr. D. S.Wijesinghe.P.C for the 2nd and the 3rd respondents associated himselfwith the first objection that the petitioner has no locus standi to file thisapplication but informed us that he is not pressing the objection that theapplication is out of time.
In reply to the first objection, the learned Counsel for the petitionerrelied on the decision of this Court in W. Ansalin Fernando v. SarathPerera. O.I.C., Chilaw Police Station et al SC Application No.18/87SCM 21.05.90 in which relief was Granted to a detenu on theapplication of his mother. Counsel also requested us to adopt thepractice in India of entertaining public interest petitions complainingagainst infringements of fundemental rights. In the case of AnsalinFernando the objection as to locus standi was not raised. In this casethe point has been taken at the hearing before us. There is no referenceto it in the objections of the respondents or in the written submissionsloged on their behalf. Nevertheless I propose to decide the question as itgoes to our jurisdiction to entertain this application.
I am of the view that having regard to the express provisions of Article126(2) as to who may apply for relief thereunder, this Court cannotentertain complaints having the character of public interest petitions.However, in circumstances of grave stress or incapacity particularlywhere torture resulting in personal injury is alleged to have beencommitted, next-of-kin such as a parent or the spouse may be the onlypeople able to apply to this Court in the absence of an Attorney-At-Lawwho is prepared to act as a petitioner; and if such application is alsosupported by an affidavit of the detenu either accompanying the petitionor filed subsequently which would make it possible to regard it as beingvirtually the application of the detenu himself this Court may entertainsuch application notwithstanding the failure to effect literal compliancewith the requirements of Article 126(2).
When the Legislature enacted that a person who complains of aninfringement of his fundamental rights may himself apply to this Court forrelief could it be said that the Legislature thereby intended to shut out anapplication which is virtually that person's application because in thecircumstances his next-of-kin has been compelled to submit his claim to ‘this Court ? I think not. In another area of Public Law, writs of certiorariand mandamus are no longer subject to the narrow rules of locus standibut available to any public spirited citizen not being a mere busy body.Wijesiri v.Siriwardana (1982)1 Sri L.R. 171, 175 ; Wade's article on'unlawful administrative action' (1967) L.Q.R 499, 504; WadeAdministrative Law (4th Ed.) 608. The wording of Article 1 26(2) wouldnot permit such extention in the case of a fundamental rightsapplication; yet in view of the provisions of Article 4(d) that fundamentalrights shall be respected, secured and advanced by all organs ofGovernment, I consider it legitimate to give a purposive construction toArticle 126(2) subject however to the strict limitations indicated by me.
In the instant case, the application has been filed by the wife of the4th respondent with an affidavit from the latter alleging that he had beenstripped and assaulted by police officers; he was detained in the MaharaPrison, presumably subject to high security which is evident from thefact that the police had, according to their report to Court 2R1,requested the Magistrate, Ratnapura to provide special protection tosuspects, including the 4th respondent, in view of the security situationin the country consequent to the murders; the 4th respondent's affidavitshows that the case itself had been transferred from Ratnapura toColombo. In that backgound it is quite possible that apart from being ableto sign an affidavit, the 4th respondent may not have been free to givea proxy and instruct an Attorney-at-Law to file the application. It isapparent that soon after the murders there existed conditions in which,as the police themselves believed, there was some threat to the 4threspondent's personal safety. In view of the special circumstances, I amnot prepared to refuse this application on the ground that the petition isnot in the name of the 4th respondent; although it is in his wife's name itis accompanied by the 4th respondent's affidavit; the relief sought in thepetition is in favour of the 4th respondent; and hence this application isvirtually his application. I would, therefore, entertain this applicationnotwithstanding the failure to effect literal compliance with Article126(2) and reject the preliminary objection in that regard. •
I think that the contrary view which leads to a dismissal of thisapplication for want of locus standi in the petitioner involves a strictconstruction of Article 126(2) which is not warranted all in thecircumstances. If fundamental rights are to have any meaningparticularly to the weak and the helpless person whose freedom to haveprompt recourse to this Court by himself or by an Attorney-at-Law isimpeded due to circumstances beyond his control, it is the duty of thisCourt to construe Article 126(2) purposively and not literally. This wouldnot do violence to the intention of the Legislature; and even if there be adoubt in that regard I would resolve it in favour of the construction whichwould advance the remedy for violation of fundamental rights, providedby Article 17 of the Constitution.
As regards the objection that this application is out of time, I aminclined to the view that the delay which is about 10 days can beexcused. The 4th respondent had signed his affidavit on 28.11.88within time, his wife has signed the proxy in favour of her registeredAttorney on 01.12.88 within time but the application itself, has beenfiled on 13.12.88 which in the circumstances of this case could beattributable to the security situation prevailing during that period. Itherefore excuse the delay in filing this application and reject thepreliminary objection in that regard.
The facts of this on which the alleged violations of rights have to bedetermined are referred to in the affidavit of the 4th respondent and inthe counter affidavits of the respondents and a copy of the notes ofinvestigations which have been produced for the information of thisCourt. There are also two medical reports marked X1 & X2 which werefiled on 21.08.90 in support of the allegation of assault. Prior to that,there is a motion by the Attorney-at-Law for the petitioner, filed on30.06.89 for a direction calling for the reports of Dr. J. A. B. S. Jayakodyand Dr. Pushpa Nayana Kumari of Mahara Prison regarding theexamination and treatment of the 4th respondent at the Prison Hospitalin November 1988. This is followed by a motion on 13.08.90 giving thenew address of Dr. Jayakody as Base Hospital, Gampaha. By the timethis application came up for hearing this Court had not made any orderon these applications perhaps for the reason that the Attorney-at-Lawfor the petitioner had not moved to support these applications in openCourt. In the circumstances, this Court is left with the reports X1 andX2which the petitioner has procured directly from the doctors concerned.In X1 dated 20.08.90 Dr. Jayakody states that according to the recordsin the prison he had treated the 4th respondent on 28.11.88 forcontusions. In X2 of the same date Dr. K. Nayana Pushpa states that shehad given O.P.D treatment to the 4th respondent at the Mahara PrisonHospital on 03.12.88. There is, however, no reference to the conditionfor which he was treated by her.
It is alleged that the petitioner was arrested on 30.11.88 by the 2ndand 3rd respondents at the house of one Jinadasa Guruge inColombugama at about 9.00 p.m.. He was not informed of the reasonfor his arrest; thereafter he was taken to the upstairs of the house of oneWettesinghe in Ratnapura; there he was stripped; his hands and legswere tied together; and he was assaulted by police officers. He wasshown his son Jayasuriya and threatened to comply with police orderson pain of losing his son. He was detained there until he was produced inCourt and made to sign a statement on 02.11.88.
According to the 2nd respondent, the 4th respondent's nametranspired in the course of investigations as a vital witness and he wasrequired to attend the Ratnapura Police. Accordingly, he reported to theRatnapura Police on 01.11.88 along with Police Sergeant 10557Wijedasa. The 4th respondent was in hiding through fear at a place inColombugama in the Ratnapura District. As several police officersattached to the Ratnapura Police were suspects the investigations were
conducted in a separate building a fewyeards away from the RatnapuraPolice Station. The statement of the 4th respondent was recorded on
at 1,10 a.m.. As he had revealed details of certain importantincidents relating to the commission of the offence, the 4th respondentwas afraid to leave the premises and sought the 2nd respondent'sprotection to escape the wrath of interested parties; he was permitted
" tp stay in the same premises when on the basis of further statementsrecorded it became apparent that he had to be treated as a suspect;whereupon he was formally informed of the allegation against him andplaced under arrest o'n 04.11.88. On the same day he was producedbefore the Magistrate along with two other suspects on a B Report(2R1).
The 3rd respondent denies that he took part in the alleged arrest anddetention' of the 4th respondent. The 1 st respondent too has filed anaffidavit with a supporting affidavit (1 R1)from PS Wijedasa who tracedthe 4th respondent at Colombugama. Each of the respondents deniesthe allegation of unlawful arrest, detention and assault contained in thepetition.
The notes of PS Wijedasa support the position that during the night of
the police had searched for the 4th respondent as a witnessin the course of investigations in to the triple murder. This officer wasaccompanied by PS Dharmasena and Jayasuriya son of the 4threspondent who knew the place where the 4th respondent stayedwhich appears to be within the area of jurisdiction of the Nivitigala Police.Along with PS Jayawardena of the Nivitigala Police, they visited thehouse of one N'. G. K. Jinadasa in Colombugama at 9.45 p.m. on
and traced the 4th respondent there. The purpose of thepolice visit was explained whereupon the 4th respondent said that hewas aware of the circumstance of the murder and the abduction of thevictims*and agreed to accompany the police.
The police party with the 4th respondent reached Ratnapura at12.50 a m. on 02.11.88. He was then taken to the place where theinvestigations were being conducted situated close to the house of Mr.Wettasinghe, Attorney-at-Law. After questioning him, his statementwas recorded in the presence of his son Jayasuriya, commencing at
10 a.m.. In the course of a long statement he disclosed the details ofevents which occured on 22.10.88 at the house of the Chief MinisterPunchinilame and described how three persons were brought there in ajeep blind folded and hands tied, at about 12.30 p.m. and how they
were subjected to torture in a room in the course of which they shouted"Budu Ammo'. Susantha Punchinilame. son of the Chief Minister andpolice officers Kotalawala and Weerasekera were involved in thistransaction. They went about armed with a pistol, guns and handgrenades. At about 6.00 p.m., Weerasekera and Kotalawala took thethree persons away in the jeep whilst Susantha Punchinilame stayedback. When he told his wife about the incident she advised him to leavethe village whereupon he left for Colombugama on 31.10.88 where hestayed until the police traced him.
An event of some significance which is relevant to this case occuredas the 4th respondent was concluding his statement. At that stage hisson Jayasuriya, a boy of 14 years of age escaped through a window andran away. The police made some search but failed to find him. This lendssupport to the allegation that the 4th respondent's son was kept by thepolice as a hostage, even if initially they had taken him along for thepurpose of tracing the 4th respondent; and that the 4th respondent'sstay with the police after 02.11.88 was not so voluntarily.
The police next recorded the statement of one Madanasinghecommencing at 11.30. a m. on 02.11.88. This witness who is a homeguard attached to the Chief Minister's household said that on the daythree persons were tortured in that house, he saw the 4th respondentseated on the back of one of them and dealing seven to eight blows onhim. This is the only witness who implicated the 4th respondent and onwhose statement the police treated him as a suspect.
It is on the basis of this material that a determination has to be madeon the allegations contained in the petition. As regards the allegedinfringement of Article 11, the petitioner states that the 4th.respondentwas subjected to inhuman treatment. Whilst it is clear that the petitionerwas under great pressure by the police, I am constrained to concludethat the available evidence is not sufficiently cogent to establish thealleged assault and inhuman treatment. There is no evidence oral ordocumentary other than the affidavit of the 4th respondent. The medicalreport X1 speaks of his being treated for contusions on 28.11.88, in theprison to which he had been remanded on 04.11.88. It gives no detailsof injuries and contains no opinion as to how such contusions could havebeen caused. The report X2 does not specify the condition for which hewas treated on 03.12.88. As such the alleged violation of Article 11fails.
As regards the alleged infringement of Article 13(1) the petitioner'scomplaint is that the 4th respondent was not informed of the reason forhis arrest, whether such arrest took place on 30.10.88which is the dategiven by the petitioner or on 01.11.88 which is the date given by therespondents. Counsel for the respondents argue that the 4threspondent was not arrested in that he came with the police voluntarily.Mr. Wijesinghe, PC cited the decision in Piyasiri v. Fernando. A.S.P.(1988) 1 Sir L. R. 173 in support of this submission. The petitioner'sCounsel submits that the 4th respondent was forcibly taken from thehouse of Jinadasa and as such he was arrested. According to SergeantWijedasa's notes,-the 4th respondent came with the police voluntarily ;however, in his affidavit he states that he took the 4th respondent forquestioning and brought him to Ratnapura. This suggests that the 4threspondent had no option to come or refuse. The 1 st respondent statesthat the 4th respondent was "arrested' on 01.11.88. In all thecircumstanced, it is more probable that the 4th respondent was taken incircumstances in which there was a deprivation of liberty.
However, I am of the view that deprivation of liberty by itself is notsufficient to constitute the seizure of a man an arrest in law. It wouldamount to an arrest, usually if he is seized for an offence. Thus Section23 of the Code of Criminal Procedure Act, No. 15 of 1979 provides –
"In making an arrest the person making the same shall actuallytouch or confine the body of the person to be arrested unless there bea submission to the custody by word or action and shall inform theperson to be arrested of the nature of the charge or allegation uponwhich he is arrested".
Piyasiri's case (Supra) and the authorities cited therein refer to thearrest of a suspect. That decision itself concerns the arrest of a numberof Customs officers on suspicion of soliciting and accepting bribeswhich is an offence under the Bribery Act. The decision of the House ofLords in Christie v. Leachinsky (1947) AC 573 also confirms thisposition. Lord Simonds said (p. 593) –
"This I think is the fundamental principal viz-, that a man is entitledto know what, in the apt words of Lawrence L. J., are 'the facts whichare said to constitute a crime on his part" (1946) K. B. 124, 147).
It was held in Wickremabandu v. Cyril Herat et al SC Application No.27/88 SCM 06.04.90, as a matter of principle the requirement inArticle 13(1) that an arrested person shall be imfomed of the reason for
his arrest may no longer be limited to a person accused of a crime andthat it can extend to a person arrested under any law for preventivedetention. In the case before us, the 4th respondent was taken as awitness ; hence there is no arrest in the contemplation of the law and assuch the requirement to give the reason for his arrest in terms of Article13(1) has no application to the 4th respondent. If, however, he canestablish that he was forcibly taken in circumstances amounting to theoffence of abduction the officer who is responsible may become liable toa prosecution ; it may also give rise to civil liability ; but he cannotcomplain of an infringement of his rights under Article 13(1).
It is then alleged that there has been an infringement of the 4threspondent's rights under Article 13(2) in that the police failed toproduce him before a Court after his arrest as required by Sections 36and 37 of the Code of Criminal Procedure Act. A person arrestedwithout a warrant on suspicion of an offence must be brought before aMagistrate having jurisdiction in the case, without unnecessary delay(S.36). The police shall not detain him in custody for a period than underall the circumstances of the case is reasonable, and such period shallnot exceed twenty-four hours exclusive of the time necessary for thejourney from the place of arrest to the Magistrate (S.37). In the light ofthese provisions the vital issue on which the decision regarding theviolation of Article 13(2) has to made is, when was the 4th respondentarrested?
The full concept of arrest is brought out in a citation from an article ofDr. Granwille Williams in Piyasiri's case (Supra) which is as follows
"Dr. Granwille Williams in his article on 'Requisites of a valid arrest(1954) Criminal Law Review 6 at page 8 et. seq. states –
'An infringement or deprivation of liberty, is a necessary element inan arrest; but this does not mean that there need be an accuteconfinement. If the officer indicates an intention to make an arrest, asfor example, by touching the suspect on the shoulder, or by showinghim a warrant of arrest, or in any other way by making him understandthat an arrest is intended, and if the suspect, then submits to thedirection of the officer, there is an arrest. The consequence is that anarrest may be made by mere words and the other submits'
'If an officer merely makes a request to the suspect, giving him tounderstand that he is at liberty to come or refuse, there is no
imprisonment and no arrest. If, however, the impression is conveyedthat there is no such option, and that the suspect is compelled tocome, it is an arrest"
' obviously it is not every imprisonment or detention that
constitutes an arrest. To be an arrest, there must be an intention tosubject the person arrested to the criminal process – to bring himwithin the machinery of the Criminal Law, and this intention must beknown to the person arrested. Arrest is a step in law enforcement, sothat the arrester must intend to bring the accused into what issometimes called 'the custody of the law" (1988 1 Sri L.R.176,180).
I have earlier held that the 4th respondent had not been arrestedon 01.11.88 or on any earlier date, because he was taken as a witnessand not a suspect. He remained in police custody in the same capacityupto the time he was implicated by witness Madanasinghe on
at which point he became a suspect. It appears to be thecontention of the petitioner's Counsel that the 4th respondent wasunder arrest, in any event from 02.11.88 ; Counsel submits that thepolice were obliged to have produced him before a Magistrate soonthereafter and within the prescribed period, which would haveterminated on 03.11.88 ; and that the failure of the police to do soinfringed Article 13(2).
As stated elsewhere in this judgment, the case for the respondents isthat after making his statement on 02.11.90 the 4th respondent stayedwith the police at his own request to escape the wrath of interestedparties ; that (despite the statement of Madanasinghe) it was only onthe basis of further statements recorded that it became apparent that hehad to be treated as a suspect; that whereupon he was formallyinformed of the allegation and placed under arrest on 04.11.88.According to the notes of investigations he has been so informed on
at 8.00 a.m.. He denied the allegation whereupon at 9.00a.m. a second statement was recorded in the course of which theallegation that he had dealt several blows on the three persons who hadbeen brought to the house of the Chief Minister on 22.10.88 was put tohim. This he denied. Thereafter at 11.00 a.m!, he was produced beforethe Magistrate who remanded him to Fiscal Custody.
Even if the 4th respondent may have been kept by the police undercompulsion, after he was brought to Ratnapura, the possibility that he
was frightened to leave the police after his statement on 02.11.88cannot be altogether discounted in view of the disclosures he madeimplicating the other suspects including Susantha Punchinilame ; and itdoes riot appear improper if, in the course of investigations by thespecial unit, the police took a little time before deciding to formally arrestthe 4th respondent and to subject him to the criminal process, whichthey did on the morning of 04.11.88. In this view of the matter, therewas no unlawful detention violative of the 4th respondent's rights underArticle 13(2). In reaching this conclusion, I am mindful of the safeguardwhich the explanation to Section 23 provides to persons in custody,which is in the following terms –
"Keeping a person in confinement or restraint without formallyarresting him or under the colourable pretention that an arrest has notbeen made when to all intents and purposes such person is incustody shall be deemed to be an arrest of such person".
I am of the view that in all the circumstances, the safeguard providedby Section 23 has not been denied to the 4th respondent.
For the foregoing reasons, I dismiss the application of the petitionerbut without costs.
Application dismissed.