14th December 1997

Rights: when the judiciary errs

By Mudliyar

The 10th of December was the Human Rights Day, the day on which people all over the world commemorate the liberation of humanity from oppression, tyranny, torture, the abuse of authority, and illegal detention. The people of this country should never forget J.R. Jayawardene, for the reforms he made in the field of Human Rights when the present Constitution was promulgated. Late Dr. H.W. Jayawardene, Q.C., the President Emeritus of the Bar Association was one of those mainly responsible for such reforms, when people did not know they had rights that are justiciable against the Executive.

Political victimization was the order of the day. If you happened to be on the wrong side of the governing party, you could be imprisoned under the Emergency Laws, your property could be taken over by the Government on some flimsy excuse that its acquisition was for a public purpose, you could be sacked or transferred from pillar to post if you were a Government servant. Though people now tend to laugh at JR’s concept of ‘Dharmishta’ Government, the incorporation of the fundamental rights provision ensured that the opposition had on many instances invoked the jurisdiction of the Supreme Court to prevent the arbitrary and excessive Executive power that was wielded by the Government. Dr. Colvin R. De Silva or even Felix Dias Bandaranaike or the other leaders in the left who championed the cause of the proletariat never thought of introducing a chapter on fundamental rights into the 1972 Republican Constitution. It seems strange that the Government which was supposed to be anti-proletariat was a Government that introduced this concept.

The present Government and its Minister of Constitutional Affairs, Dr. G.L. Pieris must be complimented for the efforts they are making to revolutionize the concept of fundamental rights in the new Constitution. Dr. Pieris cannot in any way propose reactionary legislation which retards the growth of human freedom and the rights of those who are oppressed.

The Supreme Court to its lasting credit has interpreted the present provisions of the Constitution to guarantee the fundamental freedoms enshrined in the Articles on human rights. Of the large number of cases the Supreme Court decided in favour of the individual as against the Executive the most famous for this year was the judgment delivered by Justice Dr. A.R.B. Amarasinghe in Sirisena Cooray’s case. Sirisena Cooray was awarded Rs. 200,000/= for the illegal arrest and detention orders made by the Secretary, Ministry of Defence. After this famous judgment the Secretary now is careful in signing Detention Orders and has not signed a single Detention Order after this incident. Though such strictures would behove anyone to resign from his post in deference to the Supreme Court, Chandananda De Silva remains as the Secretary Defence. We concede that we do not have a tradition of resignation.

We have one of the most independent and honest Judiciaries in the sub-continent. In India the corruption of the Judges in the original Courts has become such an endemic problem that practitioners in various parts of India have openly demonstrated against dishonest Judges. In Pakistan money plays a very important role in the decisions that some Judges make, and the Judiciary is so powerful that many lawyers whisper about corrupt and dishonest Judges. In Sri Lanka this has never happened. Even the poorest litigants accept the verdict of a magistrate, as they never entertain a thought that the Judge had made a dishonest order. Even the lawyers after they have lost a particular case would loudly criticize the judgment of the magistrate and say the magistrate has made the Order due to lack of understanding or the knowledge of law, but they have never claimed that there were other extraneous considerations.

But there have been several complaints made against judicial orders, especially the magistrates when they acted arbitrarily and without legal authority against the rights of the people. The obvious answer to this is that if a magistrate makes an order which is illegal, there are higher tribunals to correct these wrongs, but the question that looms large is how could the higher Court correct an Order which has been made without authority to remand a subject beyond the legal limits described by law. If the accused remains in remand on an illegal order the higher court could only reverse such order releasing the suspect from custody. But if the accused had remained in illegal custody for any length of time then other than being released on bail he cannot be compensated for the mental torture and agony he underwent in remand due to the callousness of the Order made by the magistrate. Like Mr. Cooray was ordered Rs. 200,000/= as compensation by the Supreme Court for the illegal detention order issued by the Secretary of Defence, no compensation can be ordered by the Supreme Court as against a magistrate who would have acted arbitrarily remanding a person beyond the statutory limit granted to him.

I believe there is another very important and fundamental aspect of ensuring the rights of the individual, not only against the Executive, but against Judges and judicial orders. The Supreme Court has on a number of occasions taken the view that the violation of fundamental rights by a Judge acting judicially or by someone executing his orders will not attract the provisions of Article 126 of the Constitution, although the Judge’s decision be erroneous, or wrongful exercise of discretion is based on false or misleading material furnished to him maliciously.

On the 12th of April, 1995 the Minuwangoda Police, upon information received that smuggled goods were being transported in a Morris Minor set up a road block and the vehicle was stopped and the goods were seized. When the Police found that the goods belonged to a particular person he was asked to report at the Police Station. The Police arrested him, to find out whether he had committed an offence under the Customs Ordinance. The Police took over the passport of the owner of the goods for the purpose of investigation. Later the OIC Minuwangoda Police produced the suspects before the magistrate at his residence. The magistrate then made an order that the passengers and the owner of the goods be detained at the Minuwangoda Police Station pending further investigations. Now, according to the Customs Ordinance, if the Police detect smuggled goods in the possession of someone the Police are bound by the Customs Ordinance to produce the suspects and the goods before a Customs Officer, instead of which the Police produced them before a magistrate and made an application to the magistrate to detain the suspects at the Police Station. Even a first year law student knows that a magistrate has absolutely no power to keep a person arrested and produce before him in the custody of the Police. The magistrate can make one of two orders, The magistrate can remand a suspect for a period of not more than 15 days, or release the suspect on bail.

This order of the former magistrate Minuwangoda was the subject matter of a fundamental rights application which came before the Supreme Court before the Chief Justice, G.P.S. De Silva, Justice Dr. A.R.B. Amarasinghe and Justice P. Ramanathan. The most important question which is fundamental in today’s context is whether the action of the magistrate was a violation of the fundamental rights guaranteed by the Constitution. Justice Dr. A.R.B. Amarasinghe in his well considered judgment stated “the Petitioner complains that his rights guaranteed by Article 13 of the Constitution were violated. The submissions of learned Counsel were principally considered with the circumstances in which the Petitioner was taken into custody by the Respondents and detained by them on the order of a magistrate. The Court took time to consider the submissions of the learned Counsel and during that time it was felt that the assistance of learned Counsel should be sought on the question whether the Court had jurisdiction to entertain a petition alleging the violation of fundamental rights arising from the order of a judicial officer. The Court acknowledges its indebtedness to the learned Counsel for their assistance”.

R.K.W. Goonasekera was the Counsel for the Petitioner and Kolitha Dharmawardene represented the Attorney General. One of the important matters that the Supreme Court considered was whether the Petitioner was held in custody upon and in terms of the order of the Judge, that was not made in accordance with procedure established by law, is there a violation of any fundamental rights recognized and declared by the Constitution, if there was a violation what could the Supreme Court legitimately do, what is the appropriate order to be made. The Supreme Court found that the record submitted to the Supreme Court for its deliberations was without the first page. “Was the detention of the Petitioner after he was produced before a magistrate ‘upon and in terms of the orders such Judge made in accordance with the procedure established by law’. The order of the magistrate appears immediately below the second page (the first page is missing) of a report filed by the 1st Respondent requesting the detention of the Petitioner and his two employees for four days at the Minuwangoda Police Station. Where is the first page? How authentic is the record submitted by the magistrate?

Kolitha Dharma-wardene, Deputy Solicitor General who appeared on behalf of the Attorney General was commended by the Supreme Court for his exemplary fairness. He submitted to the Supreme Court that the provisions of the Customs Ordinance or Section 124 of Criminal Procedure Code. (a Section which is misunderstood by many as a section which permits the magistrates to make all kinds of orders to assist investigations) does not authorize a magistrate to order the detention of suspects in Police custody.

Mr. Dharmawardene agreed that the order made by the magistrate was not in accordance with the provisions established by law.

After having deliberated at length of the arbitrariness of the order of the magistrate in detaining anyone at the Police Station for four days the Supreme Court dwelt on the subject whether the present provisions of the Constitution were sufficiently large enough to make an order against the magistrate or the Judicial Officer for having made an impugned order.

R.K.W. Goonasekera, submitted that in India and the United States it has been held that Judges could be involved in the violation of fundamental rights. The liability of violations of fundamental rights was the liability of the State: Judiciary was one of the three limbs of the State. The other two being the Legislature and the Executive, a transgression by a Judge made the State liable.Mr. Goonasekera submitted further and expressed his opinion and stated that “decisions of the Supreme Court far from securing and advancing fundamental rights as required by Article 4d have allowed gross violation of fundamental rights to go unpunished owing to a misreading of the doctrine of judicial immunity in the context of a fundamental rights jurisdiction ‘as an organ of Government’ the Judiciary is obliged to respect, secure and advance the Fundanmental Rights which are declared and recognized by the Constitution”. Justice Amarasinghe added “I have no hesitation in accepting the position that the Judiciary is one of the three limbs of the State and a Judicial Officer may be involved in the violation of a fundamental right in the exercise of his duties.

The case before us is an example, however, they may consider the decisions in other jurisdictions, it is important to consider the relevant Constitutional provisions under which they have been made. Although our Constitution has many provisions that are based on the Constitution of India, there are others that significantly defer. Unlike the American and Indian Constitutions the Constitution of Sri Lanka expressly confines the justiciability of fundamental rights”.

It was the view of Justice Dr. Amarasinghe that “where a Judge had abdicated his authority, for example by complying with or acceding to or acquiescing in proposals made by Police Officers and acting in concert with them, consenting rather than assenting he would not, in my opinion, be acting judicially. It may be the act of an officer appointed to perform judicial duties and functions, but it would not be a ‘judicial act’”.

The Judges of the Supreme Court found that the provisions of the Constitution does not permit to find the magistrate for having violated the fundamental rights of the Petitioner, they did the next best thing, they directed the Registrar of the Supreme Court to submit a copy of the minutes of the Case to the Judicial Service Commission for any action that may deem appropriate. I believe that this is a classic example of a Judge making orders which are clearly in violation of the powers granted to the Judge by Statute and thereby acting in violating the rights of the individual. The framers of the new Constitution should therefore not hesitate to take cognizance of many a pronouncement made by the Supreme Court against magistrates for having acted abdicating his authority to make provisions that the Judges specially any Judge acting in such a manner be liable for infringement of fundamental rights.

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