Practice Relating to Rule 99. Deprivation of Liberty
Section E. Decision on the lawfulness of deprivation of liberty
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 in that behalf 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 and shall, unless a detention order under section 9 [of a person with regard to whom the Minister has reason to believe or suspect that he or she is connected with or involved in any unlawful activity] has been made in respect of such person, be produced before a Magistrate before the expiry of such period and the Magistrate shall, on an application made [i]n writing … by a police officer not below the rank of Superintendent, make order that such person be remanded until the conclusion of the trial of such person:
Provided that, where the Attorney-General consents to the release … of such person from custody before the conclusion of the trial, the Magistrate shall release such person from custody.
(2) Where any person connected with or concerned in or reasonably suspected to be connected with or concerned in the commission of any offence under this Act appears or is produced before any court other than in the manner referred to in subsection (1), such court shall order the remand of such person until the conclusion of the trial:
Provided that, if an application is made under the hand of a police officer not below the rank of Superintendent to keep such person in police custody for a period not exceeding seventy-two hours, the Magistrate shall authorize such custody and thereupon the order of remand made by the Magistrate shall remain suspended for the period during which such person is in police custody.
DETENTION AND RESTRICTION ORDERS
10. An order made under section 9 shall be final and shall not be called in question in any court or tribunal by way of writ or otherwise.
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; …
(5) An order made by the Minister under subsection (1) shall be final and shall not be called in question in any court or tribunal by way of writ or otherwise.
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
SUPERVISION, SEARCH, ARREST AND DETENTION
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:
Provided however that no person shall be detained upon an order under this paragraph for a period exceeding one year.
Provided further that the Magistrate shall not release any person on bail unless the prior written approval of the Attorney-General has been obtained:
Provided further, that where any person detained under the provisions of paragraph (1) is produced before the Magistrate by the person in whose custody he is detained, the court shall order that such person continue to be detained in terms of the detention order made in terms of paragraph (1) in such place as is specified in the said detention order.
(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:
Provided that any person detained for a further period of six months shall be produced before a Magistrate every sixty days:
Provided further [that] it shall be the duty of the person in whose custody such person is detained, to cause the production of such person in the manner aforesaid
(3) Any person detained in pursuance of an order made under paragraph (1) of this regulation shall be deemed to be in lawful custody …
(4) For the purpose of this regulation, there shall be one or more Advisory Committees consisting of persons appointed by the President, and any person aggrieved by an order made against him under this regulation may make his objections to such a Committee.
(5) It shall be the duty of the Secretary to the Ministry of Defence to secure that any person against whom an order is made [under] this regulation shall be afforded the earliest practicable opportunity of making to the President representations in writing with respect thereto and that he shall be informed of his right[,] whether or not such representations are made[,] to make his objections to such an Advisory Committee as aforesaid. Rules may be made by the President in relation to the hearing and disposal of such objections.
(6) Any meeting of an Advisory Committee held to consider such objections as foresaid shall be presided over by a chairman nominated by the President and it shall be the duty of the chairman to inform the objector of the grounds on which the order under this 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.
(7) Where an Advisory Committee consists of three persons, the quorum for any meeting thereof shall be two, and where an Advisory-Committee consists of more than three persons, the quorum shall be three.
(8) The report of an Advisory Committee with respect to any such objections as foresaid shall be submitted to the Secretary to the Ministry of Defence who may, after consideration thereof, revoke the order to which the objections relate.
(9) Where the Secretary to the Ministry of the Minister in charge of the subject of Defence certifies in writing that any person[,] in respect of whom an order under paragraph (1) of this regulation is made by him[,] [appears] to be or have been a member of an organization, prescribed under regulation 71 of these regulations, the provisions of paragraphs (4), (5), (6), (7) and (8) of this regulation shall not apply in regard to that person. (10) An order under paragraph (1) of this regulation shall not be called in question in any court on any ground whatsoever.
21. The secretary may, where he is of [the] opinion that it is in the interest of national security, issue in respect of any person detained in terms of paragraph (1) of regulation 19 and who has subsequently been placed in fiscal custody, a further detention order authorizing the custody of such person in accordance with the provisions of regulation 19, in a place to be specified in such detention order. In such a case, the court that had previously placed such person in fiscal custody shall order that such person be detained in terms of the detention order in the place specified in such order.
In its judgment in the Machchavallavan case in 2005, the Supreme Court of Sri Lanka stated:
The writ of habeas corpus is a writ of remedial nature and is available as a remedy in all cases of wrongful deprivation of personal liberty. The basis of the writ of habeas corpus is the illegal detention or imprisonment, which is incapable of legal justification …
Habeas corpus, unlike other prerogative orders still remains as a writ. It is not discretionary and therefore it cannot be denied because there may be some alternative remedy. As pointed out by Wade (Administrative Law, 9th Edition, 2004, pg. 594):
“The writ may be applied for by any prisoner, or by anyone acting on his behalf, without regard to nationality, since ‘every person within the jurisdiction enjoys the equal protection of our laws’. It may be directed against the gaoler, often the appropriate prison governor, or against the authority ordering the detention, e.g. the Home Secretary. It is not discretionary, and it cannot therefore be denied because there may be some alternative remedy. There is no time limit. The defense will not always be statutory.”
It is also to be borne in mind that the writ of habeas corpus potentially has a very wide scope as it is directly linked to the liberty of citizens. Blackstone referring to the writ of habeas corpus, had stated that, (Commentaries, BK III, 12th Edition, 1794, pg. 131):
“the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.”
In 2010, in the Akilan case, Sri Lanka’s High Court of Vavuniya stated:
This Habeas corpus application … [was] filed in February this year. On 30.03.2010 [counsel for] the State … stated to court that he would contact the AG [Attorney-General] for further instructions … The court notes that even after two months … the Commissioner of rehabilitation is not in a position to inform court about any decision taken by him. … For these reasons the court orders that the detained person … should be discharged.
In a subsequent order, the court stated:
This habeas corpus application was filed by … the father [of] … who is detained at the Nellukiulam Technical Collage detention camp.
The High courts are empowered to inquire into Habeas corpus applications under section 154 P(4) (a) of the 13th amendment to the constitution. The said provision empowers the High [court] of the province in which a person is being detained unlawfully to inquire [into] the matter and to make appropriate order if an Habeas corpus application is filed on his behalf.
… [the detainee] was working as a field officer at the Veterinary department [when] on 29.11.2008 the LTTE [Liberation Tigers of Tamil Eelam] abducted him by force and gave him arms training forcefully for four months … [He] escaped from the LTTE on 06.02.2009 and … then surrendered to the Army. Thereafter he was handed over to the Neullukumam detention camp by the armed forces.
Par[agraph] 9 of the petition states that [the detainee] is unlawfully detained …
On 30.03.2010 the State counsel stated to court that the Habeas corpus application is an application seeking the intervention to court to find out the whereabouts of the … [person], and when it is known … where the … [person] is kept or detained the proceeding in the application should come to an end.
This particular submission points out to only a fraction of the Habeas corpus application[.] The words “in respect of persons illegally detained within the province” … in section 154(P4) (a) in the Constitution … [provides] that the court has the power to know whether a person[,] in this case … [,] is detained in a lawful manner or in a[n] unlawful manner
The Habeas corpus application was made on 08.02.2010. The 5th defendant[,] the Commissioner of rehabilitation[,] did not file any objection or affidavit on 08.03.2010, 30.03.2010, 24.05.2010 and 25.05.2010 on which dates the case was called in open court. Therefore … the 5th defendant who has the authority to decide about the discharge of … [The detainee] did not show reasons personally or through the State counsel as to why [he] should be continued to be detained. Therefore the order made by this court on 24.4.2010 on the basis – unlawful detention as per section 154 P (4)(a) (persons illegally detained within the province) [–] cannot be considered to be an order of per incuriam.
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated in relation to persons detained by the police:
28. The right of habeas corpus is a right guaranteed under article 141 of the Constitution and the Court of Appeal has been granted the power to issue orders in the nature of writs of habeas corpus.