FREEDOM FROM ARBITRARY ARREST.

CONSTITUTIONAL ARTICLES & DECIDED JUDGEMENTS ON FREEDOM FROM ARBITRARY ARREST.

Duncan Abeynayaka – LLB, Attorney At Law

 

SRI LANKA'S CONSTITUTION OF 1978

Article 13 (1) Freedom from arbitrary arrest, detention and punishment, and prohibition of retrospective penal legislation

1. No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

2. Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

UNIVERSAL DECLARATIONS OF HUMAN RIGHTS

Article 09

No one shall be subjected to arbitrary arrest, detention or exile.

 

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Article 09

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

 

DECIDED JUDGEMENTS

01. CHANNA PIERIS AND OTHERS V. ATTORNEY GENERAL AND OTHERS (1994) 1 SLR 1

Per Amerasinghe, J

“The right not to be deprived of personal liberty except according to a procedure established by law is enshrined in Article 13(1) of the Constitution. Article 13(1) prohibits not only the taking into custody but also the keeping of persons in a state of arrest by imprisonment or other physical restraint except according to procedure established by law.'

The petitioners were not arrested and kept arrested in accordance with a procedure established by law and they were not informed of the reason for their arrest. While the arrest, holding in custody, detention or deprivation of personal liberty of a person pending investigation or trial does not constitute a punishment by imprisonment and while holding a person in preventive detention has been held not to be punitive imprisonment violative of Article 13(4) of the Constitution yet deprivation of personal liberty would amount to punitive imprisonment violative of Article 13(4), where the person was never, or cannot any longer, be reasonably said to be held for purposes of investigation, trial or preventive detention as the case may be.

The fact that Article 13(1) is violated does not necessarily mean that Article 13(2) is therefore violated. Nor does the violation of Article 13(2) necessarily mean that Article 13(1) is violated. Arrest and detention, as a matter of definition, apart from other relevant considerations, are "inextricably linked". However Articles 13(1) and 13(2) have a related but separate existence. Article 13(1) is concerned with the right of a person not to be arrested including the right to be kept arrested except according to procedure established by law and the right to be informed of the reasons for arrest, whereas Article 13(2) is concerned with the right of a person arrested to be produced before a judge according to procedure established by law and the right not to be further deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

“a reason for arrest, a reason to deprive a person of his personal liberty within the meaning of Article 13 (1) of the Constitution must be ‘a ground for arrest’. There can be no such ground other than a violation of the law or a reasonable suspicion of the violation of the law. Furthermore, personal liberty of a citizen of this country is guaranteed by the Constitution and State has an obligation towards its subjects to ensure that citizens are free to enjoy that right without any fetters, subject, however, to exceptions laid down under the law where that freedom can be restricted and as such, strict compliance of the law is required if the freedom guaranteed under the Constitution is to be curtailed; and there cannot be any derogation from the requirements laid down in the Code of Criminal Procedure Act. The right to be informed of the reasons to arrest is one of the principles of ordinary law which is restated in the second part of Article 13 (1) of the Constitution and provides that “Any person arrested shall be informed of the reason for his arrest”

 

02. GUNASEKARA VS. DE FONSEKA, (1972) 75 NLR 246

H. N. G. Fernando, C.J.

“Only if a person is informed of the ground for his arrest, or in other words, of the offence which he is suspected, that he will have the opportunity to rebut the8 suspicion or to show that there was some mistake as to identity” exceptional cases in which the requirement will not apply, particularly cases in which it is obvious in the circumstances that a person must necessarily know why he is being arrested. Examples of such cases are found in paragraphs (a), (c), (e) and (f) of s. 32 (1) of the Criminal Procedure Code.”

Therefore, an arrest made in terms of Section 32 (1) (b) would not be within the said exception.

 

03. GUNETHTHIGE MISILIN NONA AND OTHERS VS. P.C. MUTHUBANDA, (10312), POLICE STATION, MORAGAHAHENA AND OTHERS (S.C. (F/R) NO. 429/2003)

Shiranee Thilakawardana J. cited with approval the case of R vs. Howell (1981) 3 All ER 383, where Watkins LJ, observed on the English Common Law power to arrest for breach of peace as follows:

“The public expects a Policeman not only to apprehend the criminal but to do his best to prevent the commission of crime, to keep the peace in other words. To deny him therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to disable him from preventing that of which might cause serious injury to someone or even to many people or to property. The common law, we believe, whilst recognizing that a wrongful arrest is a serious invasion of a person’s liberty, provides the Police with this power in the public interest. In those instances of the exercise of this power which depend on a belief that a breach of the peace is imminent it must be established that it is not only an honest, albeit mistaken belief but a belief founded on reasonable grounds”

 

04. CHRISTIE V. LEACHINSKY 1947 AC 457

“Police officers must at common law give a detained person a reason for his arrest at or within a reasonable time of the arrest. Under ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he
is entitled to know the reason. If the police fail to inform him, the arrest will be held to be unlawful, with the consequence that if the police are assaulted as the suspect resists arrest, he commits no offence, and if he is taken into custody, he will have an action for wrongful imprisonment. In the said case, Viscount Simon summarised a police officer’s powers of arrest at common law: ‘(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not
require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.”

 

05. EDIRISURIYA V. NAVARATNAM (1985} 1 SRIL.R 100

The petitioner's detention from 20.7.84 (8 00 p.m.) till his release on 30.8.1984 was under Emergency Regulations 19 (2). A person can be taken in for detention under Regulation 18(1) either for purposes of search or by way of arrest without warrant and such a person can be detained up to a period of ninety days in a place authorised by the Inspector-General of Police or by a Deputy Inspector-General of Police. When the exercise of powers such as these is challenged it is open to the Court to go into the matter and see whether or not the impugned power has been exercised as required by law in circumstances under which alone such power could have been exercised. Once the existence of facts and circumstances upon which a reasonable man could have so acted is established to the satisfaction of the Court, the ‘judicial intrusion' should then come to a halt. It is only if no reasonable man could have, in the circumstances, done what was done, that the Court can justifiably intervene. On the material available at the time incriminating the petitioner (though subsequently recanted) the detention order can be supported.

Sections 36, 37 and 38 of the Code of Criminal Procedure Act (providing for the production of an arrested person before a Magistrate) are not applicable in relation to a person arrested under Regulation 18.

The arrest and detention were legal and the application fails.

 

06. MALLAWARACHCHI V. SENEVIRATNE AND OTHERS [1992] 1 SRIL.R. 181

It is obligatory to give to the person arrested the reason for his arrest at the moment of arrest or where it is, in the circumstances excused, at the first reasonable opportunity. This is to enable the person arrested to remove any mistake, misapprehension or misunderstanding in the mind of the arresting authority at the earliest possible opportunity and thus regain his freedom.

A person arrested is not bound to submit and may resist arrest, if he is not duly informed of the reason for his arrest.

The right of a person to be informed of the reason for his arrest is now elevated to a fundamental right.

Where the person arrested for pasting posters was released within a reasonable period and the court held he had been informed of the, reason for his arrest, there was no/violation under Articles 13(1) and (2).

 

07. JOSEPH PERERA ALIAS BRUTEN PERERA V. THE ATTORNEY-GENERAL AND OTHERS [1992] 1 SRIL.R 199

The burden rests on the respondents to justify the arrest and detention of the petitioners.

In deciding on the validity of the arrest, the sole issue for the court is the knowledge and state of mind of the officers concerned at the time of making the arrest.

Per Wanasundara, J., “the principles and provisions relating to arrest are materially different from those applying to the determination of the guilt or innocence of the arrested person. One is at or near the starting-point of a criminal proceeding while the other constitutes the termination of those proceedings and is made by the judge after hearing submissions of all parties. The power of arrest does not depend on the requirement that there must be clear and sufficient proof of the commission of the offence alleged. On the other hand for an arrest, a mere reasonable suspicion or a reasonable complaint of the commission of an offence suffices. I should however add that the test is an objective one. I am of the view that the latter requirement was fulfilled in this case."

Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end.

No police officer can predict the trial outcome of a case or/how a legal provision would be interpreted by the court. If they are placed in peril and heavy damages awarded in respect of their acts where prosecution was to fail, no police officer would be inclined to perform his functions and may henceforth decide to leave well alone not only doubtful cases, but practically all cases, thereby bringing the administration of justice to a standstill.

 

08. NANDASENA VS CHANDRADASA, O. I. C., POLICE STATION, HINIDUMA AND OTHERS (2006) 1 SRI L R. 207

Article 13(1) requires arrest according to procedure established by law ; and the person arrested should be informed of the reason for the arrest.

09. ROMESH COORAY VS JAYALATH, SUB-INSPECTOR OF POLICE AND OTHERS 2008 (2) SLR 43.

There was no material produced before the Supreme Court to show that there had been any complaint against the petitioner or that there had been credible information or a reasonable suspicion that had existed against the petitioner, it is apparent that the arrest of the petitioner was unlawful and not according to the procedure established by law.

10. TUDUGE ACHALANKA SRILAL PERERA VS. POLICE SERGEANT ANANDA, S.C. (F/R) 198/2011

Former Chief Justice Sharvananda, in his treatise on Fundamental Rights in Sri Lanka (page 141) observed as follows;

“The requirement that the person arrested should be informed of the reason for his arrest is a salutary requirement. It is meant to afford the earliest opportunity to him to remove any mistake, misapprehension or misunderstanding in the mind of the arresting authority and to disabuse the latter’s mind of the suspicion which triggered the arrest and also for the arrested person to know exactly what the allegation or accusation against7 him is so that he can consult his Attorney-at-Law and be advised by him……. A bold statement that the arrestee is a terrorist falls far short of the required standard.”

 

11. CHARITH ESHANKA HOPWOOD, VS. INSPECTOR OF POLICE GUNAWARDENA, SC. FR.  257/2018

This Court in several previous judgments have very clearly held that taking a person into custody and detaining for the purpose of procuring evidence in the circumstances of the case, to obtain their assistance to locate another person, as a first step in the process of bringing criminal suspects to justice or any other deprivation of personal liberty amounted to be violative of Article 13(1) of the Constitution. (Weragama vs. Indran and others, SC application 396 and 397/93 SC minutes 24 February 1995, SC
application 27/88 SC minutes 6 April 1990)

 

12. LANDAGE ISHARA ANJALI & OTHER VS. WARUNI BOGAHAWATTE & OTHERS (2019), SC (FR) 677/2012

The Article guarantees freedom from arbitrary arrest and mandates that any deprivation of liberty should strictly follow the procedure established by law. These procedural safeguards are set in place to avoid rule by whim or caprice and to prevent the abuse of judicial process for individual gain and for political purposes.”