Historical use Of the Writ of Habeas Corpus

1. The right to a Writ of Habeas corpus, derived from the English legal system's recognition of the fact that every citizen has the right to protection from excessive acts of the executive and legislature, was recognized by the Sri Lankan law as early as 1889.¹

2. The concept behind the writ is the recognition of every person's right to freedom from arbitrary and/or illegal arrests and detention.

3. Historically, the Writ has been used in England for nearly four centuries as a means of compelling arresting authorities to produce the arrested persons before the authority of Court in order to determine the validity of the arrest and the subsequent detention. The arresting authority, being, an officer of the State.

4. In Sri Lanka, however, the overwhelming number of reported cases are those between private parties and the Writ has been most used in cases of custody battles over minor children with a family.

5. The earliest reported case of the use of the Writ against the State was as in 1915.² Until the early seventies, the cases against the State were most often based on the powers vested in the Commissioner of Immigration and Emigration. Even in the celebrated case Re: Bracegirdle³ the Court's examination of the use of Emergency Powers occurred in the context of an arrest made in consequence of an order for deportation.

6. It was the rise of arrests and detention under Emergency Powers in the seventies that one sees the concentrated use of the Writ of habeas Corpus as a challenge to the exercise of Emergency powers under the Public Security Ordinance and the Prevention of Terrorism Acts.

Objectives of this Chapter

7. This Chapter concentrates on the Applications made to the Court of Appeal by a Petitioners who have given evidence before the Commission where the Petitioners have brought the face of the application to the notice of the Commission only. This constitutes a total of 120 cases.

8. The Commission's attempts to ascertain for itself the actual number of cases regarding disappearances falling within its mandate have proved fruitless.

The Register, Court of Appeal furnished the Commission with a total number of Habeas Corpus Applications required annually in the years 1988 to may 1996, and the numbers awaiting disposal by CA as at May 1996.

9. These cases constitute a poignant aspect of the efforts of relations to trace 'disappeared: loved ones, understood by them to have been taken away by the State security forces. The poignancy lies in the fact of the denial to these petitioners of the recourse to the ordinary procedures of law enforcement, i.e. reporting to the area police, the reports being followed by an investigation by the police, the contemporaneous police record of the incident of disappearance and statements from witnesses and police reports to courts with the attendant safeguards for witnesses including the complaints and assistance in evidence regarding finger prints, blood samples, etc. and Court's assistance in obtaining such records.

10. In the face of this denial of the right of access to the system of administration of justice, the fact that so many petitioners sought the assistance of courts via its Habeas Corpus jurisdiction bears witness to their faith, that if they could only access the Judge of the land, they would have their attention, which would in turn get them the required attention from all official quarters. from

At the time of filling of many of these applications, it was only the Court of Appeal of Sri Lanka, situated in Colombo, which had the jurisdiction to entertain applications for Writs of Habeas Corpus. The capital city was not only an alien place to most of the Petitioners, but was so far away that many of them could barely afford the bus fare to get to the metropolis.

The fact that many of the petitioners have brought it to the attention of the Commission that they had not even visited their local police station before the incidents described by them indicated the sense of desperation that moved them to brave their way to Colombo. This was in the face of the total erasure of their experience by the official quarters including the security forces and the police, the Grama Sevakas of the village, all the way to the highest administrative service available to the citizens of this country, the Presidential Mobile Secretariat and the Co-ordinating bodies for security and police services

Although evidence was available of the recording of these complaints by some of the authorities, the striking feature before the Commission is the signal failure by the State authorities to follow them up with any independent investigation into what were essentially statements of the misuse of State Powers.

11. These Habeas Corpus Applications by 2755 individual petitioners also bears witness to the faith of the people in the law of the land. They were faced with the denial by the authorities that what they had experienced was a "Crime", "A Wrong" they were faced with the contrast afforded by the authorities' compliance with the requisite legal procedures in respect of the parallel incidents which the authorities considered to be "subversive acts". They were faced with the bludgeon of the Indemnity Act passed in 1988. All of these were designed to confirm to them that their experience was "different" to those of the ordinary people of the country.

In short they were confronted with the denial of their very humanity; an attitude that their loved ones were only comparable to stray animals.

The petitioners then turned to the courts in a manifestation of their belief and reliance on the Rule of Law based on generational experience prior to the era of state-sponsored terror. These cases in fact offer a moving commentary on the climate existing during this period as opposed to a preceding time.

Evidence Before the Commission

(i) Records of cases brought to the attention of the Commission by petitioners and made available by the Court of Appeals (These do not represent all the cases filed in respect of persons failing within the mandate of the Commission.)

(ii) Evidence of Registrar of the Supreme Court, Court of Appeal, High Court of Colombo and Chief Magistrate Court Colombo

(iii) Evidence of the former Chief Magistrate of Colombo Sarath Ambepitiya Esq.- District Judge.

(iv) The evidence of the petitioners before the Commission.

1. Rate of Completion of Inquiries

Of the 120 case records made available to the Commission, the Court of Appeals has made findings in 38 cases, and the inquiry by the Magistrate Courts has been completed in 74. The Registrar of the High Court of Colombo states that 132 cases have been inquired into by the Magistrate whilst 33 more are awaiting completion. These cases include cases that have not been taken into account by the Commission and do not include some that have been considered by the Commission.

2. Attendance of Parties in Court

Petitioners.- In 27 of the 120 cases analysed by the Commission, the cases had been dismissed for want of appearance of the petitioners. In some, the cases have been abated until appearance by the petitioner. The Registrar of the High Court has also recorded several instances of cases where the petitioner was not present in Court.

Respondents.- Although the respondents are represented in most cases, the practice has been that the respondents themselves do not have to attend courts at all through out the inquiry. Their presence is dispensed with if they are represented by counsel in Court and an application is made to court that they are unable to be physically present since they are in service in operational areas. The former Chief Magistrate in his evidence confirms this. He also revealed to the Commission that in his opinion some respondents do not present themselves in court so as to avoid positive identification by the petitioner, as had once happened before him in the case of an identification of the ASP of the Kelaniya area.

...certain respondents started absenting themselves from the Magistrate Courts until the petitioner's case was concluded. They would only present themselves in Court after that. By this time it was too late to record an identification in court by the petitioner.

An identification in court is an identification in Law and forms part of the evidence in the case. The District Judge went on to say that such respondents have been represented though out the proceedings and no applications had been made to postpone the hearings on the basis that they are unable to be present on that particular date.

The Magistrate's Court have on most occasions refused application on behalf of the respondents for postponements on the basis of other engagements, and have also allowed applications by the petitioner insisting on the presence of respondents in court during the inquiry.

3. Representation of Parties

Petitioners. - In most cases perused by the Commission the petitioners have been represented by legal aid organisations.

Respondents. - The Supreme Court in the case of Seetha vs. Sharvananda (1989)⁴ Sri L.R. 94 held that the Attorney General is entitled to appear on behalf of any public officer who is made a respondent in applications for Writs of Habeas Corpus regardless of whether any criminal charges can be brought against the respondent official at a later state.

The Attorney General has consistently appeared on behalf of the Army Commander and the Inspector General of Police. The Attorney General has appeared for other members of the forces where there does not seem to be a possible charge of an offense under the Penal Code to be tried later. In cases where there was such a possibility however the Attorney General has not represented the respondents, and Private counsel had been retained by the respondents to appear on their behalf.

4. Delays in Proceedings

In most of the cases analysed by the Commission, the petition to the court has been filed quite some time after the date of disappearance of the person, in some cases the delay being over one year. Further, objections of the Respondents have rarely been filed within three months of the filing of the petition and in some cases have taken as long as one year.

Once the order to send the case to the Magistrate Court had been made, that Court takes at least two years to complete the inquiry. Amongst the reasons identified for this by the former Chief Magistrate were:

(i) The Court of Appeal when sending the case to the Magistrate Court does not notify parties of a possible date when this case will be inquired into thereby leaving the MC to notify parties all over again. In same cases, although the Court of Appeal has identified the location of the Respondents more fully than is described in the petition (which very often only contains an address of the temporary camps). This is not notified to the MC and the MC has to take steps to find the Respondents all over again. If the petitioner dies during the pending of the inquiry, there are no provisions under which the MC can act of its own volition and the case has to be referred to the CA and sent back to the MC. Further, both the Chief Magistrate and the Registrar of the High Court gave evidence as to the volume of work already handled by MC and the difficulty in accommodating the large influx of cases of the High Court that were seat to the Chief Magistrate in one go.

When the cases are returned to the Court of Appeal by the Magistrate's Court, there is usually a delay of several months before the Court hears the arguments based on the findings of the Magistrate. In fact in several cases, although reports have been sent to the Court of Appeal in 1995, no final decision of the Court of Appeal is available as yet.

Thus, in cases where a magisterial inquiry has been ordered and findings made by the Court of First Instance against Respondents, there is a time lag of approximately 7 years from the date of disappearance to an order from the Court of appeal regarding this disappearance. In this period, petitioners have died or left the country seeking employment or have lost interest in the case; Respondents have also died and several have left the service before the completion of the action against them thereby rendering impossible any disciplinary action that can be taken against them in cases where there are findings against them.

5. Special Aspects of Legal Procedure

The procedure for inquiry into applications for Habeas Corpus Applications is now settled law.

Juwanis v. Lathif et al (1988) 2 Sri. L.R. 185 Went into the circumstances under which a MC can inquire into the case. The courts held that when the Respondents deny the custody of the corpus, the Court of Appeal does not have to be satisfied the authorities actually have the corpus in custody in order to order an inquiry by a Court of First instance.

Rasammah v. Major General Perera et al (1982) 2 Sri. L. R. 30 Court of Appeal has discretion as to when the Respondents should be ordered to produce the corpus before the Court. The Court held that it is not mandatory to order the production at the time that the petitioner establishes a prima facie case and that even if the Petitioner is unable to do so, notice may be issued upon the Respondents.

The filing of Habeas Corpus Applications is another method the bereaved have sought to use in order to assert their rights and to bring a matter to the attention of the authorities.

K. Leda Violets Case, M. Saminona, L. Beetanona v. IPVidhanapathirana, OIC, Police Station Dikwella et al- HCA 164/89, 166/89 & 171/89

S. N. de Silva, J. President, Court of Appeal in Habeas Corpus Application Numbers 164/89, 166/89 and 171/89 observed:

Several, hundreds of applications have been filed in this court from about the year 1988 for writs of Habeas Corpus in respect of persons whose arrest and custody is denied by the named Respondents. The Respondents are named personnel of the Sri Lanka Police or Armed Forces.

The Principle by which the courts will guide themselves in such applications was explained by the President, Court of Appeal, as follows;

Article 141 of the constitution which invests this court with jurisdiction to issue Writs of Habeas Corpus is intended to safeguard the liberty of the citizens. The Rule of law, freedom and the safety of the subject would be completely nullified, if any person in authority can cause the disappearance of an individual who has been taken into custody and blandly deny to this court having jurisdiction to safeguard the liberty of the subject, any knowledge of the whereabouts of such individual. Q. V. Page 10

Adopting a decision of the Indian Supreme Court and material from International Human Rights Law, the Court of Appeal held that

Some affirmative action is necessary from a court invested with jurisdiction to issue Writs of Habeas Corpus, when confronted with a case of an obvious disappearance of an individual held in custody and a false denial of such custody by a person in authority.

The court accordingly awarded exemplary sums of Rs. 100,000/- to each petitioner.

The Court directed the Inspector General of Police to consider the evidence recorded in the Magistrates Courts as information of the commission of a cognizable offense (and) to take necessary steps to conduct proper investigations and to take steps according to law.

Court also directed a copy of the proceedings and judgement to be forwarded to the Attorney General "for appropriate action to be taken by him"

Vajira Ranjani Madukumari vs. Douglas Peiris, OIC, Peliyagoda (now SP Gampaha) et al HCA 103/91

The Court of Appeal observing that HCA cases are referred for an inquiry to a court of first instance in order that evidence would be recorded, witnesses cross-examined submissions made as to credibility and finding made by the judge of that court on the evidence stated:

The findings on questions of fact made by a court of first instance would not be ordinarily disturbed by this court which has not had the benefit of seeing or hearing the witnesses. The learned Chief Magistrate was best equipped to come to findings of fact on the disputed questions. His findings would be departed from by this court only if there are cogent reasons to do so/

L. S. Perera
v. 1.Inspector General of Police
2.Douglas Perera et al
HCA 13/91

On respondent Counsel's submission that the petitioner had implicated the 2^nd respondent for the first time only one and a half years after the alleged arrest in a petition filed in is court, and that the complaint is belated, the court of Appeal stated that the circumstances which existed at the relevant period were pertinent to whether the complaints is belated.

The delay in making a complaint could well be understood considering the circumstances which existed at the relevant period. No person could be faulted for not making a complaint when the allegation is directly leveled at the Police being the lawful authority to carry out such investigation. Special Leave to appeal to the Supreme Court against the findings of the Court of Appeal has been refused. ⁵

V. The Difficulties Attendant on Litigation

It is obvious that the petitioners have incurred heavy expenditure in these proceedings. They have done so with the firm belief that truth and justice will finally prevail.

S. N. de Silva J. Q. V.

This is Your Commissioners' experience also.

An 84 year old father from Embilipitiya district who has lost 5 sons successively in 5 incidents of abductions and disappearances described to the Commission his inability to give the requisite instructions to the Legal Aid organisation which was prepared to handle the matter in respect of his 4^th son, and his inability to attend courts to give evidence in respect of these abductions, due to the lack of the requisite bus fare.

Habeas Corpus matters get postponed many times due to the absence of respondents who allege their absence to be due to official duties. Lawyers must be retained and paid their fees in respect of each of such days. A mother giving evidence before the Commission described how the Court of Appeal has awarded her Rs. 100,000 as exemplary damages' in respect of the abduction and disappearance of one son, while her Habeas Corpus Application in respect of her other son abducted on the same occasion has fallen by the wayside due to her inability to pay lawyers' fees.

A state-aided legal aid services for petitioners for a writ of Habeas Corpus in this category of cases of disappearances would be a public acknowledgement of the break-down of law and order that enabled such disappearances to be staged with impunity.

We recommend that a system of Citizens' Advisory Services be set up, with an office at every Provincial Secretariat.

Chain-of-Command Responsibility

Gonsalwasam Thilakasena
v. 1 OIC Wagolla sub camp
2. Col. Karunathilake Co-ordinating Officer, Kegalle
3. Lt-Gen. Cicil Wydhiyaratne, Commander, Sri Lanka Army

Habeas Corpus Application 67/92.- [Finding this to be a case where the arrest and detention of the corpus falls into the category of cases where persons who have been arrested and detained by the authorities disappear thereafter, the Court of Appeal directed the second and third respondents to pay Rs. 100,000/- as exemplary costs to the petitioner, as respondents who have failed to account for the detention of the corpus.]

Singappulige Nimalasena v. Col. Karunathilake, Coordinating Officer, Kalutara et al Habeas Corpus Application 442/89

In this case also the basis of liability was chain-of-command responsibility. Once detention by the army was proved, the area co-ordination officer was held responsible.

The Observations of the WGEID As far back as 8th January 1992, the United Nations Human Rights Commission's working Group on Enforced and Involuntary Disappearances (WGEID) reporting on its visit to Sri Lanka stated specifically on Habeas Corpus procedure: ⁶

The Habeas Corpus procedure in principle the most powerful tool available to complainants on disappearance is marred in Sri Lanka by the same deficiencies the Working Group has observed in other countries. Writs of Habeas Corpus can only be filed in the capital city, Colombo. Even for those who can travel the distance and avail themselves of legal counsel, results are on the whole disappointing. Usually, even if a Writ is referred to a local Magistrate by the Court of Appeal, a flat denial of any knowledge on the part of the security forces terminates the procedure. A Magistrate is not empowered to conduct any investigation in site for example by seeking access to places of detention.

The Working Group went on to recommend (inter al)

The government should prosecute more vigorously those responsible for disappearances and require that severe disciplinary punishment be meted out to government officials who have failed to take adequate measures to prevent disappearances. In particular, the Group finds it necessary to emphasize disregard for the requirements on registration of detainees should be severely dealt with, as well as acts of intimidation and reprisal against witnesses and relatives of disappeared persons.

Acts found to involve grave violations of human rights, such as disappearances, should not benefit from indemnity legislation.

Human Rights records of members of armed forces and the Police should be taken into account in the consideration of promotions (a practice stated to exist in other countries of the region). Members of these Forces under investigation for involvement in cases of disappearances should be suspended from active duty until inquiries are completed.

The Working Group's Report after a second special visit to Sri Lanka⁷ reiterated this.

It is the finding of this Commission that an enlargement of jurisdiction alone will not suffice to make the High Court proceedings more accessible and more effective. For this, implementation is required of the recommendation that

Human Rights records of members of the Armed Forces and the Police should be taken into account in the consideration of promotions and Members of these Forces under investigation for involvement in cases of disappearances should be suspended, from active duty until inquiries are completed. ⁸

Threats to Petitioners and Lawyers.- In very many instances it was brought to the attention of this Commission that petitioners in Habeas Corpus Application ⁹ had themselves disappeared or had a lawyer representing them in the case being killed, or been forced to abandon the case through fear for the safety of the remaining members of the family.

The lawyer who filed my Habeas Corpus Application in respect of my two sons abducted by the Army, was killed. I was afraid to go on with the case. I have younger children.

When my undergraduate brother was abducted from home and disappeared, my father filed a Habeas Corpus Application asking for his return. On the day my father was due to give evidence before the Magistrate in this case, he set out form home, but disappeared before he reached the court. To whom could my mother and I appeal thereafter? I withdrew the application. I was afraid for the life of my remaining son.

I withdrew the application in respect of the disappearance of my Moratuwa University Undergraduate brother as I received threats and feared for my own safety.

My brother filed a Breach of Fundamental Rights case in the Supreme Court in respect of torture suffered at the hands of the Police when he was taken in by them in connection with the robbery of a cigarette van. The Supreme Court awarded him Rs. 20,000/- and directed the Inspector General of Police to take steps against the Police Officers concerned. My brother went to sign the Book at the Police Station that week ¹⁰ as required by his Bail order. My mother went with him. As they hadn't returned by evening, my father went to the police station to look for them. All three have disappeared. Our appeals to the Superintendent of Police has not been responded to. ¹¹

Enlargement of Magistrates Courts jurisdiction to enable prompt application.- Habeas Corpus Applications which were brought to the Commission's notice are applications filed in respect of incidents that took place, 6, 7, or 8 years ago. The experience of the petitioners who filed them and of judges who considered them, must be utilised as the basis for meaningful reforms of both the law and the administration of the law, so as to render the administration of the Writ of Habeas Corpus more responsive to the needs that arise in a situation of disappearance. First and foremost is speed of response. The opportunity to invoke this jurisdiction no sooner a situation of unacknowledged custody arises, is the first requisite.

Your Commissioners recommend the enlargement of the Magistrate's Courts jurisdiction to empower the Magistrate to receive the affidavits of the petitioner and his witness, to register the petition and forward to the High court, plus the empowerment of the Magistrate to entertain the petitioner's application that the (the Magistrate) visit the place of alleged unacknowledged detention.

This would have the following positive factors:

• Obviate the unsatisfactory position as at present, of the Magistrate, faced with an allegation on one part and the denial by the authorities on the other, being seen to accept the denial, without more.

• Obviate the delays attendant on an initiation of action by court being only after the Attorney General/Forces Commander or Inspector General of Police/and specifically named respondents/have filed answer in court.

• If pressure is brought on the respondent by this procedure to change an unauthorised detention to an authorised one the objective of the Habeas Corpus Application is already achieved. It is the Commission's experience that petitioners do not file Habeas Corpus Applications in order to get a compensation award for a disappearance. Their hope and their prayer is to locate the disappeared person alive, and to transform and unauthorised custody to legal detention.

The Writ of Habeas Corpus is a civil remedy:
It is therefore within the petitioners power to initiate proceedings first. Granted a speedy means of verification, the citizen would himself be able to create the first safeguard against an eventual disappearance.

The Habeas Corpus Writ procedure would continue to be two-tired. The Magistrate's functions would continue to be that of the ascertainment of fact. The High Court would continue to be the ultimate arbiter on the issues of responsibility and compensation.

The delays attendant on the present three-stage procedure (5 years, on average at present) gives the final decision of the Court of Appeal an aspect of being a commentary on history:
The disappearance has taken place-what remains for consideration is only the question of an award for a wrong suffered.

The Writ of Habeas Corpus is constitutionally enshrined in the law of Sri Lanka. The changes of procedure recommended require an amendment to the Constitution.

Your Commissioners are confident that a Bill designed to strengthen the utilitarian value of the Writ of Habeas Corpus will be passed without division by Parliament. We are strengthened in our conviction by the example of the recognition accorded at the United Nations General Assembly to the Declaration on Enforced Disappearances and the Declaration on Extra-judicial Execution,, both of which were passed without division by the General Assembly.

The Effect of an Habeas Corpus Application Award.- 2 aspects need consideration.

A. The Non-Payment of the Award

Various instances of the failure to pay compensation despite a court award have been brought to the attention of this Commission.

In HCA 164/89, 171/89 and 166/89 the Court of Appeal of 16.11.94 directed the respondents ¹² to pay an exemplary award of Rs. 100,000/- each to the petitioners. The respondent's application for special leave to appeal to the Supreme Court was refused. The respondent died thereafter without payment of the awards.

In HCA 103/91 and 13/91 the Court of Appeal on 15.09.95 awarded the respective petitioners Rs. 100,000/- as costs against the respondents. ¹³ The respondent's application for special leave to appeal to the Supreme Court was refused. The respondent Police officer has left the country without payment of the award.

It is accordingly recommended that

1. Respondents be required to deposit the sum of award in court, pending appeal
2. That the obligation to pay the award be available against a respondent's assets and, if he has died, against his estate.

B. The Effect of an Order to Pay

2. Institutional Respondent

i.e.- Commanding officer/officer-in-charge who has not cast himself in the role of individual perpetrator.

It is recommended that the fact of an award by court v. him should go into his service record and thereby affect promotion, increments etc.

Interdiction until the end of the inquiry however, is unsuitable in his case, as his culpability transpires only at the end of the inquiry, once the perpetrators culpability is affirmed.

The provision of the opportunity for a vigorous exercise of the rights inherent in the Writ of Habeas Corpus is the best safe-guard against a climate of impunity once again raising its head in Sri Lanka. ¹⁴ The exercise of the rights to bring the issue to the attention of the courts contributes to the confidence in the citizen that his rights are firmly protected. The participation of civil society through the provision of assistance by legal aid organisation, goes towards strengthening civil society itself.

RECOMMENDATIONS

1. Publicity to be given to the availability of the remedy of Habeas Corpus and the support services available from the Bar Association of Sri Lanka / Law Commission / Movement for Development and Democratic Rights (MDDR) and Lawyers for Human rights and Development (LHRD).

2. Contributions from State funds to legal aid organisations

3. Instructions to Commanders of Forces to co-operate with the Courts.

4. Courts of first instance to be identified wherever possible as most accessible to the petitioner i.e. the Magistrate's Court

The Supreme Court Endorsed an Exemplary award to us for the loss of our Fisherman sons taken from the beach by the Police prior to the visit of the Presidential Candidate to our town

End Notes

1. Courts Ordinance No. 1 of 1889

2. 18 NLR.

3. 39 NLR 193.

4. (1989)

5. Sc. Sp. L. A. 343/95. On the matter of payment of costs the Court of Appeal stated

In the event of a failure to make payment on the costs further action against the 2^nd respondent would be considered by this Court.

6. E/CN 44/1992/18/Add 1/paragraphs 202 and 204

7. E/CN. 4/1993/25/add. 1

8. E/CN14/1992/18/Add/Paragraph 204

9. Also in Applications for Breach of Fundamental Rights in the S.C.

10. He had been granted bail on the condition he reports to the Police Station once a week.

11. The petitioner (and his parents) thus disappeared before they could be summoned to give evidence at any 'Disciplinary Inquiry' etc.
The reference in the evidence is to S.C. Application 24/89.
The SC order in that case passed strictures on the Police, drawing attention to the fact that in an earlier case of a similar nature, also in the same Police Station, the SC had awarded damages of Rs. 10,000/-
Neither the pronouncement of the Court nor the award made appears to have deterred the Police in resorting to the illegalities established in the instant case.
The SC ordered a copy of the judgement to be forwarded to the IGP; "to enable him to consider further steps be way of disciplinary action or otherwise, in the light of the finding of the Commission'.

12. Vidana Pathirana I.P., OIC, Dickwella Police.

13. Douglas Peiris, OIC, Peliyagoda Police.

14. Wijesuruya v. the State (1973) NLR p. 43