Practice Relating to Rule 99. Deprivation of Liberty
Sri Lanka’s Code of Criminal Procedure (1979), taking into account amendments up to 2006, states:
37. Person arrested not to be detained more than twenty-four hours
Any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate.
115. Procedure when investigation cannot be completed in twenty-four hours
(1) Whenever an investigation under this Chapter cannot be completed within the period of twenty-four hours fixed by section 37, and there are grounds for believing that further investigation is necessary the officer in charge of the police station or the inquirer shall forthwith forward the suspect to the Magistrate having jurisdiction in the case and shall at the same time transmit to such Magistrate a report of the case, together with a summary of the statements, if any, made by each of the witnesses examined in the course of such investigation relating to the case.
(2) The Magistrate before whom a suspect is forwarded under this section, if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiling his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more. … If at the end of the said period of fifteen days proceedings are not instituted[,] the Magistrate may … either discharge the suspect or require him to execute a bond to appear if and when so required.
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
INVESTIGATION OF OFFENCES
6. (1) Any police officer not below the rank of Superintendent or any other police officer not below the rank of Sub-Inspector authorized in writing by him … may, without a warrant and with or without assistance and notwithstanding anything in any other law to the contrary[:]
(a) arrest any person;
7. (1) Any person arrested under subsection (1) of section 6 may be kept in custody for a period not exceeding seventy-two hours …
DETENTION AND RESTRICTION ORDERS
9. (1) Where the Minister has reason to believe or suspect that any person is connected with or [involved] … in any unlawful activity, the Minister may order that such person be detained for a period not exceeding three months in the first instance, in such place and subject to such conditions as may be determined by the Minister, and any such order may be extended from time to time for a period not exceeding three months at a time:
Provided, however, that the aggregate period of such detention shall not exceed a period of eighteen months.
11. (1) Where the Minister has reason to believe or suspect that any person is connected with or concerned in the commission of any unlawful activity referred to in subsection (1) of section 9, he may make an order in writing imposing on such person such prohibitions or restrictions as may be specified in such order in respect of[:]
(a) his movement outside such place of residence as may be specified; or
(b) the places of residence and of employment of such person; or
(c) his travel within or outside Sri Lanka; or
(d) his activities whether in relation to any organization, association or body of persons of which such person is a member, or otherwise; or
(e) such person addressing public meetings or from holding office in, or taking part in the activities of or acting as adviser to, any organization, association or body of persons, or from taking part in any political activities,
and he may require such person to notify his movements to such authority, in such manner and at such times as may be specified in the order.
(2) Where the Minister makes a restriction order in respect of any person while an order of detention in respect of such person is in force, such restriction order shall, unless otherwise specified, take effect upon the expiry of the detention order.
(3) Every order made under subsection (1) shall be in force for such period, not exceeding three months, as may be specified therein:
Provided, that the Minister may, by order in writing, extend such period from time to time for periods not exceeding three months at a time so … that the aggregate of such periods does not exceed eighteen months.
(4) Where an order is made under subsection (1), the Minister may by notice in writing served on the person to whom such order relates, vary, cancel or add to any prohibitions or restrictions imposed by such order on such person and the prohibitions or restrictions so varied or added to shall, unless earlier cancelled, continue in force for the unexpired portion of the period specified in such order or the period as extended under subsection (3).
(2) Upon the indictment being received in the High Court against any person in respect of any offence under this Act or any offence to which the provisions of section 23 shall apply, the court shall, in every case, order the remand of such person until the conclusion of the trial.
15A. (1) Where any person is on remand under the provisions of subsection (2) of section 15, or section 19 (a), notwithstanding any other provision of this Act or any other law, the Secretary to the Ministry of the Minister in charge of the subject of Defense may, if he is of opinion that it is necessary or expedient so to do, in the interests of national security or public order, make Order, … that such person be kept in the custody of any authority, in such place and subject to such conditions as may be determined by him having regard to such interests.
(2) Any Order made under subsection (1) shall be communicated to the High Court and to the Commissioner of Prisons and it shall be the duty of such Commissioner, to deliver the custody of such person to the authority specified in such order and the provisions of the Prisons Ordinance shall cease to apply in relation to the custody of such person.
19. Notwithstanding the provisions of any other written law[:]
(a) every person convicted by any court of any offence under this Act shall, notwithstanding that he has lodged a petition of appeal against his conviction or the sentence imposed on him, be kept on remand until the determination of the appeal;
Provided, however, that the Court of Appeal may in exceptional circumstances release on bail any such person referred to in paragraph (a) subject to such conditions as the Court of Appeal may deem fit, or vary or suspend any order referred to in paragraph (6).
20. Notwithstanding anything [in the] Code of Criminal Procedure Act[:]
(a) the provisions of section 303 of that Act [relating to the suspension of sentences] shall not apply in the case of any person who is convicted;
(b) the provisions of section 306 of that Act [relating to conditional discharge of offenders] shall not apply in the case of any person who pleads or is found guilty, by or before any court of any offence under this Act.
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
SUPERVISION, SEARCH, ARREST AND DETENTION
18. (1) Where the Secretary to the Ministry of the Minister in charge of the subject of Defence is of opinion with respect to any particular person that, with a view to … [preventing] that person –
(a) from acting in any manner prejudicial to … national security or to the maintenance of public order, or to the maintenance of essential services; or
(b) from acting in any manner contrary to any of the provisions of regulation 25 [concerning offences and penalties] or sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of regulation 40 [the offense of failing or refusing to work where this is considered an “essential service”] or of paragraph (3) of regulation 71 [taking part in a proscribed organization] of these regulations; [if] it is necessary so to do, the Secretary may make an order for all or any of the following purposes: –
(i) for securing that, except in so far as he may be permitted by the order, or by such authority or person as may be specified in that order, that person shall not be in any … area in Sri Lanka as may be so specified;
(ii) for requiring that person to notify his movements in such manner, at such times, and to such authority or person as may be specified in that order;
(iii) for prohibiting that person from leaving his residence without the permission of such authority or person as may be specified in that order, and prohibiting any other person from entering or leaving such residence except in such circumstances as may be specified in that order or [as may] be determined by such authority or person as may be specified in that order;
(iv) for requiring that person, if he is in possession of a passport or of travel documents or tickets for transportation for a journey outside Sri Lanka, to surrender such passport or travel documents or tickets, as the case may be, to such authority or person as may be specified in that order;
(2) If any person is in any area in contravention of an order made under sub-paragraph (i) of paragraph (1) of this regulation or fails to leave any area in accordance with the requirements of such an order, then, without prejudice to any proceedings that may be taken against him, he may be removed from that area by any police officer or by any other person authorized … [to do so] by the Secretary to the Ministry of Defence.
19. (1) Where the Secretary to the Ministry of Defence is of [the] opinion 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, or to the maintenance of essential services; or
(b) from acting in any manner contrary to any of the provisions of sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of regulation 40 or regulation 25 of these regulations, it is necessary so to do, the Secretary may order that such person be taken into custody and detained in custody …
(1C) Any person detained in pursuance of the provisions of paragraph (1) for a period of one year reckoned from the date of his arrest, may upon the expiration of such period, be detained by the Secretary for a further period of six months, if it appears that the release of such person would be detrimental to the interests of national security …
(2) Any police officer or member of the Sri Lanka Army, Sri Lanka Navy or Sri Lanka Air Force shall have the right to carry into effect any order made under paragraph (1) of this regulation and to … [use] … such force as may be necessary for the purpose.
20. (1) Any Public officer, any member of the Sri Lanka Army, the Sri Lanka Navy or the Sri Lanka Air Force, or any other person authorized by the President to act under this regulation may search, detain for purposes of such search, or arrest without warrant, any person who is committing or has committed or whom he has reasonable ground for suspecting to be concerned in, or to be committing, or to have committed, an offence under any emergency regulation …
(2) Any person detained under paragraph (1) shall, within twenty-four hours, be handed over to the nearest police station.
(8) It shall be the duty of the arresting officer to report the arrest made under paragraph (1), where the arresting officer is a police officer, to the Superintendent of Police of the Division within which the arrest is made, and … where the arresting officer is a member of the armed forces, to the Commanding Officer of the area within which the arrest is made, within twenty-four hours of the arrest.
(2) Any person who surrenders (hereinafter referred to as the “surrendee”) in connection with any offence under the Explosives Act, the Offensive Weapons Act, No. 18 of 1966, the Firearms Ordinance, the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 or under Chapter VI [offences against the State], Chapter VII [offences relating to the armed forces] or Chapter VIII of the Penal Code [offences against public tranquillity] or under any emergency regulation, or through fear of terrorist activities to any police officer, or any member of the armed forces, or to any public officer or any other person or body of persons authorized by the President by order, shall be required to give a written statement to the officer or person authorized to the effect that he is surrend[er]ing voluntarily.
(3) The Secretary to the Ministry of the Minister in-charge of the subject of Defence shall, from time to time approve Centres to be k[n]own as “Protective Accommodation and Rehabilitation Centres” (hereafter referred to as “the Centre”) for the purpose of receiving and keeping surrendees.
(4) The officer or person to whom a person surrenders in terms of paragraph (2) shall, within ten (10) days of such surrende[r] hand over the surrendee to the Commissioner-General of Rehabilitation who shall assign such surrendee to a Centre. …
(5) The officer or any other person to whom a person surrenders in terms of paragraph (2) shall inform the Secretary to the Ministry of the Minister in-charge of the subject of Defence, no later than ten (10) days of the surrender, that a voluntary surrender has been made and such person was handed over to the Commissioner-General of Rehabilitation in the manner set out in paragraph (4) above.
(6) On the Secretary to the Ministry of the Minister-in-Charge of the subject of Defence being informed in terms of paragraph (5), by the officer or person to whom the surrendee surrendered, that the surrendee has been handed over to the Commissioner-General of Rehabilitation, he shall make an order authorizing the Commissioner-General of Rehabilitation to keep such surrendee for a period not exceeding twelve months in the first instance at the Centre to which he has been assigned. Such period will be computed from the date of handing over of such surrendee by the officer or person as the case may be, to the Commissioner-General of Rehabilitation.
(7) The Commissioner-General shall within a period of two months of the date of the surrendee being handed over to him, forward a Report to the Secretary to the Ministry of the Minister in-charge of the subject of Defence indicating the nature of the rehabilitation being carried out in respect of the surrendee.
(9) The Commissioner-General of Rehabilitation shall prior to the expiration of the aforesaid period of twelve months, forward to the Secretary to the Ministry of the Minister in-charge of the subject of Defence, a report stating whether in his opinion it is appropriate to release the surrender or to extend for a further period the rehabilitation of such surrendee.
(10) At the end of the period of twelve months the Secretary to the Ministry of the Minister in-charge of the subject of Defence, may, after per[us]al of the report submitted to him under paragraph (9) by the Commissioner-General of Rehabilita[t]ion –
(a) order the release of such person; or
(b) extend the period of rehabilitation for periods of three months at a time, so … that the aggre[g]ate period of such extensions shall not exceed a further twelve months. Each such extension shall be made on the recommendation of the Commissioner-General of Rehabilitation and of an Advisory Committee appointed by the President in terms of paragraph (4) of regulation 19 of these regulations.
(11) The surrendee shall, at the end of the extended period of rehabilitation, be released.
(12) The Superintendent of Police of the Division in-charge of the division within which a person surrendered in terms of paragraph (2) may, after the expiration of three months from the date of his being assigned to a Centre, with prior written approval of [the] Secretary to the Ministry of the Minister in-charge of the subject of Defence, investigate the involvement of any surrendee who is suspected of being connected with, or concerned in, the commission of an offence set out in paragraph (2) and where it is so necessary to try him for the commission of such offence.
(13) Where at the end of any trial a surrendee is found guilty of the offence in connection with which he is charged or indicted, the Court may in determining the sentence to be imposed on him take into consideration the fact of his surrender, The Court may where appropriate, order that such surrendee be subjected to a further period of rehabilitation as may be determined by Court, at a Centre.
(14) Where a surrendee found guilty of an offence and subjected to a further period of rehabilitation by Order of Court in terms of paragraph (13), acts in a manner detrimental to the rehabilitation programme or the interest of the other surrendees at the Centre, [t]he Commissioner-General of Rehabilitation may on production of such person before the Court which sentenced him present such facts to [the] Court and the Court may after such summary inquiry as the Court thinks fit, make [an] order sentencing him to imprisonment in lieu of such further period of rehabilitation.
67. (1) During the continuance in force of this regulation -
(a) sections 95 and 96 of the Code of Criminal Procedure Act, No. 15 of 1979 (which relate to the power to disperse unlawful assemblies), shall cease to be in force; and
(b) any police officer of a rank not below that of a Sergeant, any member of the Sri Lanka Army of a rank not below that of a Corporal, any member of the Sri Lanka Navy of a rank not below that of a Leading Seaman, or any member of the Sri Lanka Air Force of a rank not below that of a Corporal, may order any person or persons in or about any public road, railway, public park, public recreation ground or other public ground, seashore, or in or about, or in the vicinity of, the premises of any public building or Government Department, to remove himself or themselves from that place and it shall be the duty of such person, or each such person, as the case may be, to comply with such order.
(2) If, upon the issue of an order under sub-paragraph (b) of paragraph (1) of this regulation by any officer empowered to issue such order, any person does not comply with the order or conducts himself in … such a manner as to show a determination not to comply with the order such officer with such assistance as may be necessary, may proceed to give effect to such order by force including armed force, and may cause such person to be removed or arrested and confined.
(3) During the continuance in force of this regulation, sections 306 (1), (2) and (4) of the Code of Criminal procedure Act, No. 15 of 1979 [conditional discharge of an offender], shall not apply to or in relation to any person … charged with, or … convicted of, any offence under [the] emergency regulation[s], save and except [in relation to] an offence under regulation 13(1) hereof.
68. (1) Notwithstanding anything in any other law to the contrary, a person taken into custody and detained under any emergency regulation may, during the period of such custody and detention, be questioned by any Police officer, or any other officer authorized by the Commissioner of the Army, Commander of the Navy or Commander of the Air Force and it shall be the duty of the person so questioned to answer the question addressed to him.
(2) for the purpose of questioning any person taken into custody and detained under paragraph (1) or for any other purpose connected with such questioning, any officer referred to in paragraph (1) of this regulation may remove such person from any place of detention or custody and keep him in the temporary custody of such officer for a period not exceeding seven days at a time.
Sri Lanka’s Geneva Conventions Act (2006) includes the following grave breach as an indictable offence: “unlawful confinement of a protected person”.
Sri Lanka’s Code of Criminal Procedure (Special Provisions) Act (2007) states:
Notwithstanding anything contained in the Code of Criminal Procedure Act, No.15 of 1979 other than the provisions of section 43 (A) of that Act, any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the presence of the Magistrate:
Provided that where the arrest is in relation to an offence as is specified in the Schedule to this Act, such period of detention in police custody may, on production before him of the person arrested and on a certificate filed by a police officer not below the rank of the Assistant Superintendent of Police submitted prior to the expiration of the said period of twenty-four hours, to the effect that it is necessary to detain such person for the purpose of further investigations, be extended upon an order made … by the Magistrate for a further period not exceeding twenty-four hours, so … that the aggregate period of detention shall not exceed forty-eight hours.
In its judgment in the Kumaranatunga case in 1983, the Supreme Court of Sri Lanka stated:
[F]reedom from arbitrary arrest and detention guaranteed by Articles 13(1) and (2) of the Constitution is subject to such restrictions as may be prescribed by law in the interests, inter alia,
of national security and public order. Law in this context is defined as including “regulations made under the law for the time being relating to public security”. It is well recognised that individual freedom has in times of public danger to be restricted when the community itself is in jeopardy, when the foundations of organised government are threatened and its existence as a constitutional state is imperilled. Ours is a principled commitment to personal liberties. In the exercise of its regulatory functions in times of national crisis, the Government is vested with power to impose [as] much restraints as are necessary in the interests of national security and the maintenance of public order. Freedom from arbitrary arrest and detention is made subject to the Emergency Regulations when a state of public emergency has been duly proclaimed. These Regulations overshadow the fundamental rights guaranteed by Articles 13(1) of the Constitution.
In its judgment in the Channa Pieris case in 1994, the Supreme Court of Sri Lanka stated:
Article 15(7) of the Constitution provides that the exercise and operation of certain fundamental rights declared and recognized by the Constitution, including those referred to in Article 13(1) and 13(2), shall be subject to such restrictions as may be prescribed by law in the interests, among other specified things, of national security and public order; and “law”, for the purpose of paragraph 7 of Article 15, is said to include regulations made under the law for the time being relating to public security.
The law relating to public security in force at the time relevant to the matters before us was the Public Security Ordinance (Cap. 40) as amended by Act No. 8 of 1959, Law No. 6 of 1978 and Act No. 28 of 1988 under which various Regulations have been made from time to time.
It is unhelpful to simply say, as the respondents do, that the petitioners were arrested under “the Emergency Regulations” for the simple reason that a bewildering mass of emergency regulations made under the Public Security Ordinance covering a wide range of matters, including, for instance, the Adoption of Children (606/6 of 18.4.90 and 730/8 of 1.9.92), the possession and control of Ceylon Cold Stores (604/10 of 6.4.90, 612/12 of 6.2.90, 640/18 of 14.12.90, 660/5 of 30.4.91, 664/8 of 31.5.91, 669/9 of 2.7.91), Edible Salt (635/7 of 7.11.90), Private Omnibuses (653/22 of 15.3.91, 692/8 of 10.12.91), School Development Boards and Provincial Boards of Education (701/12 of 12.2.92 the references are to Gazette numbers and dates of publication), have nothing to do with the arrests and detentions in question. Moreover, significant changes of the Regulations take place from time to time. When a petitioner states in an application under Article 126 of the Constitution that his freedom to be at liberty, unless he is arrested according to procedure established by law, has been denied, it is incumbent on the person making the arrest to precisely indicate the procedure under which the arrest was made. Additionally, for reasons I shall explain, it is desirable that certified copies of the relevant regulations should be file by the respondents.
In its judgment in the Vinayagamoorthy case in 1996, the Supreme Court of Sri Lanka stated:
Regulation 18(1) [of the Emergency (Miscellaneous Provisions and Powers) Regulations of 17 June 1993] states that “Any… member of the armed forces may… arrest without warrant, any person who is committing or whom he has reasonable grounds of suspecting to be concerned in, or to be committing or to have committed, an offence under any emergency regulation … Provided however that any person arrested or detained in any administrative district outside the Northern and Eastern Provinces by a member of the armed forces shall forthwith, and in any event before the end of the period of twenty four hours from such arrest or detention be handed over to the custody of the officer in charge of the nearest police station.”
The new regulations of June 1993 introduced several safeguards to ensure the security of persons who are arrested and detained under the Emergency Regulations. In order to prevent or minimize “disappearances” and abuses, it is of paramount importance that the requirements laid down by the regulations should be strictly observed. They were not intended for merely cosmetic purposes, but for the sake of fulfilling the basic obligation of the State to ensure the personal security and liberty of all persons.
Regulation 18(7) provides that when an arrest is made under Regulation 18(1) it shall be the duty of the arresting officer, where the arresting officer is a member of the armed forces, to report to the Commanding Officer of the area within which the arrest is made, within twenty four hours of such arrest. It shall be the duty of such Commanding Officer to “forthwith” notify the Human Rights Task Force of such arrest, setting out all the information relating to such offence in the form prescribed for such purpose by the Secretary.
Regulation 18(8) provides that where any person is taken into custody under the provisions of Regulation 18, it shall be the duty of the arresting officer to issue to the spouse, father, mother or any other close relative, as the case may be, a document in such Form as specified by the Secretary, acknowledging the fact of the arrest.
Regulation 19(4) casts two imperative duties on the Secretary of the Ministry of Defence, namely, (1) to cause to be published in the Gazette a list of all places authorized by him as places of detention for the purposes of Regulations 17 and 19; and (2) to notify the existence and the address of such places of detention to the Magistrate within whose jurisdiction such places of detention are located.
Regulation 19(5) requires the officer in charge of any place authorized by the Secretary as a place authorized for detention for purposes of Regulations 17 or 19 to furnish once every fourteen days to the Magistrate within whose local limits of jurisdiction such place of detention is located a list containing the names of all persons detained at such place. The Magistrate shall cause a list to be displayed on the notice board of the Court.
Regulation 19(6) requires the Magistrate within whose jurisdiction any such authorized place of detention is situated, to visit such place of detention at least once in every month and it shall be the duty of the officer in charge of that place to secure that every person detained therein, otherwise than by an order of a Magistrate, is produced before such visiting Magistrate.
Mr. Vinayagamoorthy in his affidavit of the 4th of December 1994 specifically states that the respondents failed to comply with the procedures established by law by (a) not handing over Wimalenthiran to the Kotahena Police immediately after his arrest; (b) failing to notify the Human Rights Task Force; and (c) failing to inform the relatives of the person arrested. I find myself in agreement with Mr. Vinayagamoorthy. Indeed, I go further in holding that there is no evidence that the requirements of Regulations 18(7), 18(8), and 19(4), 19(5), 19(6) were complied with in this case.
In 2010, in the Akilan case, Sri Lanka’s High Court of Vavuniya stated:
As per the provision of the Public security Act a surrendering person should be discharged at the end of the period of rehabilitation or after the extended period of rehabilitation.
Mr. H.N.G. Fernando the Chief Justice had made an order on 30.12.1971 in a Habeas corpus application … Janak llidaramani, Petitioner and A.R. Ratnavalu in which case the permanent secretary of the Ministry of Defense was [one of the respondents] … The judgment refers to preventive detention and states as follows …
Preventive detention is a serious invasion of personal liberty and such meager safeguards as the constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court.
[At] the same time it is also the policy of the Courts to [give] priority to the security of the State when an order is made to protect the “freedom” of an individual person. [The Court held in the same habeas corpus application:] “[C]onsiderations of liberty have necessarily to be outweighed by the interests of the security of the State.”
“A merely subjective or speculative fear is not enough to justify detention or to keep in custody the person who surrenders for an indefinite period.”
In 2010, in its judgment in the Sivalingam case, the Supreme Court of Sri Lanka stated:
Under the circumstances that prevailed in 2006, possession of a travel pass issued by the LTTE [Liberation Tigers of Tamil Eelam] may plausibly give rise to the conclusion that the Petitioner maintained linkages with the LTTE. This fact combined with information received from the Karandeniya Police linking the Petitioner to the stash of explosives, arms and ammunition recovered from the lorry recovered on 03.08.2006 has reasonably triggered his arrest and inquiry into possible terrorist activities committed or planned by the Petitioner. In light of the circumstance of the Petitioner’s arrest on 04.08.2006 I hold that there has been no violation of the Petitioner’s rights under Article 12(1) of the Constitution by the arrest and detention of the Petitioner.
The Court also stated:
Following the Petitioner’s arrest by the Vavuniya Police on 04.08.2006 the Petitioner was produced before a Magistrate on 31.08.2006. The Petitioner was arrested and detained under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 2005 and under a Detention Order dated 04.08.2006 under which the Petitioner could be detained for a period of Ninety days from the date of the Order. Between 04.08.2006 and 30.06.2007, the Petitioner was served with a total of 6 Detention Orders … by which his detention was extended validly under the Emergency Regulations. It appears that on the face of the serious nature of the offences against the Petitioner that the detention had been regularized with a Detention Order which had been signed by the then Additional Secretary of Defence at the Ministry of Defence, Public Security Law and Order and are valid in law. The Petitioner was so kept in detention as per the said Detention Orders up to 22nd July 2007, on which day he was remanded to fiscal custody.
Regulation 19(1) of the Emergency Regulations reads as follows;
19(1) Where the Secretary to the Ministry of Defence is of [the] opinion with respect to any person that, with a view to preventing such person:
- from acting in any manner prejudicial to the security or to the maintenance of public order, or to the maintenance of essential services; or
- from acting in any manner contrary to any of the provisions of sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of Regulation 40 or Regulation 25 of these Regulations, where it is necessary so to do, the Secretary may Order that such person be taken into custody and detained in custody:
Provided however that no person shall be detained upon an Order under this paragraph for a period exceeding one year.
Regulation 21(2) of the Emergency Regulations reads as follows;
21(2) Any person detained in pursuance of provisions of Regulation 19 in a place authorized by the Inspector General of Police may be so detained for a period not exceeding ninety days reckoned from the date of his arrest under that Regulation, and shall at the end of that period be released by the officer in charge of that place unless such person has been produced by such officer before the expiry of that period before a court of competent jurisdiction; and where such person is so detained in a prison established under the Prisons Ordinance …
Regulation 21(3) stipulates that:
Where a person who has been arrested and detained in pursuance of the provisions of Regulation 19 is produced by the officer referred to in paragraph (2) before a court of competent jurisdiction, such court shall Order that the person be detained in the custody of the Fiscal in a prison established under the Prisons Ordinance.
This was the basis on which it appears that the Petitioner was taken into custody under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 2005, and detained for a period of up to one year. At the end of the said one year and prior to the lapse of one year on 22nd July, 2007 he was remanded into fiscal custody.
However, this procedure was challenged in Supreme Court Fundamental Rights Application No.173/08 (SCFR 173/08). This was due to the fact that the provisions of Regulation 21(3) contradicted with the provisions of Regulation 19(1) when read together with Regulation 21(2).
Thus Their Lordships, by Order dated 29th July 2008, held as follows:
“… in terms of Regulation 19(1) and 21 of the Emergency Regulations No 1 of 2005, the detainee should have been transferred to fiscal custody after 90 days from the date of arrest.”
A clear ambiguity in the law [existed] up to this point of time. This ambiguity was rectified by the Supreme Court, in SC Application 173/08, only on 29th July 2008. This does not mean that all detentions made under the Emergency Regulations No 1 of 2005 prior to this Order were bad in law and therefore illegal. If that was to be the case it will clearly lead to an absurdity.
In 1997, in a statement issued to the heads of the armed forces and the police force, the President of Sri Lanka directed:
1. Every member of the Armed Forces and of the Police Force shall assist and facilitate the HRC [Human Rights Commission of Sri Lanka] and any person authorised by the HRC in the exercise of its powers, duties and functions and also ensure that the fundamental rights of persons arrested or detained are respected.
2. No person shall be arrested or detained under any Emergency Regulation or the Prevention of Terrorism Act No. 48 of 1979 except in accordance with the law and proper procedure and by a person who is authorised by law to make such arrest or order such detention.
3. At or about the time of the arrest or if it is not possible in the circumstances, immediately thereafter as circumstances permit:
(i) the person making the arrest or detention shall identify himself to the person arrested or any relative or friend of such person upon inquiry being made, by name and rank;
(ii) every person arrested or detained shall be informed of the reason for the arrest;
(iii) the person making the arrest or detention shall issue, to the spouse, father, mother or any other close relation as the case may be a document in such form as specified by the Secretary to the Ministry of the Minister in charge of the subject of Defence, acknowledging the fact of arrest. The name and rank of the arresting officer, the time and date of arrest and the place at which the person will be detained shall also be specified. It shall be the duty of the holder of such document to return the same to, or produce the same before, the appropriate authority when the person so arrested or detained is released from custody;
Provided that, where any person is taken into custody and it is not possible to issue a document as set out above, it shall be the duty of the arresting officer, if such officer is a police officer, to make an entry in the Information Book giving reasons as to why it is not possible to so issue a document, and if the arresting officer is a member of the Armed Forces to report the reasons why it is not possible to issue a document to the officer in charge of the police station, whose duty it shall be to make an entry of such fact along with the reasons therefor in the Information Book.
(iv) the person arrested shall be afforded reasonable means of communicating with a relative or friend to enable his whereabouts being known to his family.
4. When a child under 12 years or a woman is sought to be arrested or detained, a person of their choice should be allowed to accompany such child or woman to the place of questioning. As far as possible any such child or woman so sought to be arrested or detained should be placed in the custody of a Women’s Unit of the Armed Forces or the Police Force or in the custody of another woman military or police officer.
5. A statement of a person arrested or detained should be recorded in the language of that person’s choice who should thereafter be asked to sign the statement. A person who desires to make a statement in his or her own handwriting should be permitted to do so.
6. (i) The members of the HRC or any person authorised by it should be permitted access to the person arrested or detained under the Prevention of Terrorism Act No. 48 of 1979 or under a Regulation made under the Public Security Ordinance (Chapter 40) and should be permitted to enter at any time any place of detention, police station or any other place in which such person is detained in custody or confined.
(ii) Every officer who makes an arrest or order of detention as the case may be, shall forthwith, and in any case not later than forty-eight hours from the time of such arrest or detention, inform the HRC or any person specifically authorised by the HRC, of such arrest or detention as the case may be, and the place at which the person so arrested or detained is being held in custody or detention.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
17. “Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence” on 7 July 2006 … [state] that
… any officer who makes an arrest or order of detention must, according to the above Directives, within 48 hours from the time of arrest or detention, inform the HRC [National Human Rights Council of Sri Lanka] of such arrest or detention and the place of custody or detention. …
18. The Government has issued circulars to the effect that whenever possible, except in exceptional circumstances, and where there is good reason, the State institutions should comply with the recommendations made by the NHRC [National Human Rights Commission of Sri Lanka]. The aforementioned Directives state,
Every member of the Armed Forces and the Police Force shall assist and facilitate the HRC and any person authorized by the HRC in the exercise of its powers, duties and functions and also ensure that the fundamental rights of persons arrested or detained are respected. …
45. The Presidential Directive of 7 July 2006, instructs the Heads of the Armed Forces and the IGP [Inspector General of Police] on measures necessary to enable the NHRC [National Human Rights Commission] of Sri Lanka to exercise and perform its powers, functions and duties. It also provides for the protection of fundamental rights of persons arrested or detained.
[footnote in original omitted]
Sri Lanka also stated:
20. Under section 37 of the Criminal Procedure Act No. 15 of 1979 of Sri Lanka, a person arrested under … normal circumstances would be detained in … police custody for [a] maximum of 24 hrs.
21. Persons arrested under [the] Emergency Regulations and Prevention of Terrorism Act, for certain offences could be detained up to [a] maximum of one year, for investigation and interrogation purposes. …
22. However, the court closely monitors the investigation and other activities of the police in connection with persons arrested under any law. …
23. The Supreme Court ha[s] given an order stating that persons arrested under section 19(1) of the Emergency Regulations [can] be kept in Police custody only for ninety days. During the course of the detention the said detainee should be transferred to … fiscal custody upon the expiration of 90 days from the date of arrest. These suspects could be kept for another period of nine months in … fiscal custody.
24. The President … issued directions to the Armed Forces and Police as the Minister of Defence, in connection with persons arrested and detained. The President … directed these institutions to respect the fundamental rights of … persons arrested and … has given these directions, regarding the rules and regulations concerning Arrest, Detention and Interrogation on 7 July 2006.
27. Presently, the Police follow the above the rules and regulations according to the Presidential Directives and the Supreme Court directions whenever suspects are arrested and detained.
33. The … [Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence on 7 July 2006] also [take] measures to regulate arrests:
(a) … [They require] the person making the arrest to identify himself to the person arrested or to a relative … and to present a written documentation to the spouse, parent or relative acknowledging the fact of arrest;
(b) The name and rank of the arresting officer, the name and date of arrest and the place at which the person will be detained should be specified in this document;
(c) If such written documentation cannot be made, a note should be made in the Information Book of the relevant Police Station indicating why it was not possible to issue such documentation.
In 2012, in a section entitled “Theme area: International Humanitarian Law Issues” of its National Plan of Action to Implement the Recommendations of the Lessons Learnt and Reconciliation Commission, Sri Lanka’s Government stated:
Theme area: International Humanitarian Law Issues
9.9, 9.37a. – …
1. Complete ongoing disciplinary process being conducted in terms of Armed Forces statutes.
2. Upon conclusion, take follow up action to prosecute, where relevant.
3. Use the existing system as provided for in the Criminal Procedure Code to originate a complaint and give such mechanism sufficient publicity.
9.37b – …
9.39 – …
1. Assess current processes being pursued to examine the authenticity of the allegations in Channel 4 namely, the inquiry currently conducted by the Army.
2. Based on such results take follow up action as appropriate.
In a section entitled “Theme area: Human Rights”, Sri Lanka’s Government also stated:
Theme area: Human Rights
9.48 – Direct law enforcement authorities to take immediate steps to ensure that allegations (of abductions, enforced or involuntary disappearances, and arbitrary detention) are properly investigated into, and perpetrators brought to justice.
1. Identify impediments, if any, to the effective enforcement of the law. That the offences are visited with serious sanctions.
2. Strengthen investigation skills of Police.
3. Strengthen access to justice.
4. Enhance the capacity of the Police to put in place a more effective surveillance mechanism of the locality in cooperation with the local community and establish community policing.
9.57 – Appoint an Independent Advisory Committee to monitor and examine detention and arrest of persons taken into custody under any regulations made under the Public Security Ordinance or the Prevention of Terrorism Act
See activities under recommendations 9.9, 9.37 (a) (b), 9.23, 9.39
Create a special mechanism to examine cases of persons being held in detention (for long periods without charges[)] on a case by case basis and recommend a course of action in regard to disposal of each case.
1. Identify and establish procedures in the existing system to address the issue[.]
2. Complete decision making regarding detainees through a dedicated Unit in the Attorney General’s Dept. mandated to examine detention cases.
Establish a focal point in the Attorney General’s Department to support the process of examining detention cases.