The Court of Appeal issued notice in a rather unusual Habeas Corpus Application on last Wednesday, (03-07-2013)

The Habeas Corpus Application (bearing No. HB 02/2013), wherein the Petitioner, Ariyawansha Udugamavithana alleges that his son, Priyantha Deshapriya Udugamavithana who was arrested by Sri Lanka Army in 1989 is still in the custody of the State without a trial. In the Petition filed in Court, the Petitioner states that his son, who was a popular tutor known as ‘Priyantha Sir’, was taken into custody by Sri Lanka Army when he was walking towards the Anamaduwa Bus Stand after finishing his day’s work at an educational institution called ‘Nuwana’ in Anamaduwa on 23rd of August 1989.

The Petition also states that all the attempts made by the Petitioner to locate his son were of no avail and the Presidential Commission appointed by the subsequent regime to investigate into the enforced disappearances during the 1988-1989 period has also informed the Petitioner that his son’s whereabouts could not be traced. However, many years later, in 2005, three police officers, who introduced themselves as CID officers, visited the Petitioner’s residence and told the Petitioner that his son was still amongst the living, and they might be able to bring him home in the near future. Moreover, in 2011 too, the Petitioner has received a telephone call from the Criminal Investigation Department and in the ensuing conversation, the Petitioner has been told that his son was alive.

The Petitioner further states in his Petition that in July 2012, he personally met the then Police Spokesperson, SSP Ajith Rohana at police headquarters and few days later, SSP Ajith Rohana confirmed via telephone that the Petitioner’s son was still alive and he would be going to see him on that day. However, on the following day, SSP Ajith Rohana has refused to disclose the whereabouts of the Petitioner’s son, saying that he could not redress the Petitioner’s grievance. The Petitioner believes that his son is presently blind or incapacitated and is in the custody of the police or prison authorities. The Petitioner has cited Commander of Sri Lanka Army, Director of Criminal Investigation Department, Inspector General of Police, Commissioner General of Prisons, SSP Ajith Rohana, and Attorney General as Respondents.

Having heard the submissions made by Counsel for the Petitioner, Hon. Justice Sisira De Abrew and Hon. Justice Jayathilaka of the Court of Appeal directed that notices be served on the Respondents. Attorney-at-Law, Sanjeewa Ranaweera appeared for the Petitioner.  The case is to be mentioned in the Court of Appeal on 06th of August 2013.

We publish below the petition in full;

IN THE COURT OF APPEAL OF THE
DEMOCRATIC SOCIALIST REPUBLIC OF SR LANKA

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In the matter of an Application for mandates in the nature of Writs of Habeas Corpus and under Article 141 of the Constitution of the Republic of Sri Lanka

Ariyawansha Udugamavithana,

Theiwatte Kade,
Nehinna,
Dodangoda.

C.A. Writ (Habeas Corpus)  Application No.

                                                                        PETITIONER

                                                                        vs.

1. Commander,
   Sri Lanka Army,
   Army Headquarters,
   Baladaksha Mawatha,
   Colombo 03.
2. Director,
   Criminal Investigation Department,
   Police Headquarters,
   Colombo 01.
3. Inspector General of Police,
   Police Headquarters,
   Colombo 01.
4. Commissioner General of Prisons,
   Department of Prisons,
   No. 150, Baseline Road,
   Colombo 09.
5. Ajith Rohana,
   Senior Superintendant of Police,
   c/o Inspector General of Police,
   Police Headquarters,
   Colombo 01.
6. Hon. Attorney General,
   Attorney General’s Department,
   Colombo 12.

RESPONDENTS

1. Priyantha Deshapriya Udugamavithana,
   Theiwatte Kade,
   Nehinna,
   Dodangoda.

CORPUS

TO:   HIS LORDSHIP THE PRESIDENT AND THEIR LORDSHIPS THE OTHER JUDGES OF THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

On this       day of June 2013

The Petition of the Petitioner above named appearing by                                                 , his Registered Attorney-at-Law states as follows:

1. The Petitioner, aged 77 is a citizen of the Republic of Sri Lanka and is the father of the above-captioned Corpus.
2. The Petitioner states that he served as a Field Officer (now retired) of the Culloden Estate, Neboda and the Corpus is the eldest of his four children. The Corpus was unlawfully arrested/abducted and has been illegally detained by and/or in the illegal custody of, any one or more of the Respondents above named.
3. In the instant application, the Petitioner challenges, inter alia, the unlawful arrest and detention of his son, the Corpus, (believed to be arrested by Sri Lanka Army) and seeks a mandate discharging or releasing him from detention/custody.
4. The Petitioner states that;

(a)     The 1^st Respondent is the Commander of the Sri Lanka Army;

(b)     The 2^nd Respondent is the Director of the Criminal Investigation Department;

(c)     The 3^rd Respondent is the Inspector General of Police;

(d)    The 4^th Respondent is the Commissioner General of Prisons;

(e)     The 5^th Respondent is a Senior Superintendent of Police (SSP) who served as the Police Spokesperson for a considerable period of time (To the best of the Petitioner’s knowledge, the 5^th Respondent was transferred to Ampara in October 2012, and the Petitioner is unaware of the 5^th Respondent’s current posting);

(f)      The 6^th Respondent is the Hon. Attorney General of the Republic, and inter alia, as the Chief Legal Officer of the Republic, has sufficient interest in the safety and security of the citizens of the Republic, including the Petitioner and the Corpus.

The Petitioner respectfully reserves his right to name/add the any other parties/State authorities as Respondents to this Application, if so necessary or if so directed by Your Lordships’ Court.

5. The Petitioner states that the Corpus was born on 29-10-1966 and he (Corpus) completed his primary and secondary education at C.W.W.W. Kannangara Central College, Mathugama. The Corpus sat the G.C.E. Advanced Level Examination in Arts stream and after leaving school, he commenced reading for an external degree at University of Peradeniya.

A copy of the Corpus’s Birth Certificate is annexed hereto marked P1.

6. The Petitioner states that in or about 1987, the Corpus, while reading for the said external degree, started working as a tutor at a private educational institution in Anamaduwa, called ‘Nuwana’. The Corpus taught ‘Political Science’ and ‘Logic’ to Advanced Level students and soon became a popular teacher, known as ‘Priyantha Sir’.

7. The Petitioner states that on or about 23-08-1989, around 4.30pm, when the Corpus was walking towards the Anamaduwa Bus Stand after finishing his day’s work at the said institution (called ‘Nuwana’), he was abducted/arrested by military personnel, who were later identified as officers of the Sri Lanka Army.

8. The Petitioner states that as soon as he learnt about the Corpus’s arrest/abduction, he went to the Anamaduwa police station and inquired about the Corpus’s whereabouts (the place where the Corpus was detained) and the reason for the purported arrest. However, the Anamaduwa police failed to provide any information about the Corpus’s whereabouts and attributed the purported arrest to the drastic measures taken by the then Government to suppress the rebellion led by Janatha Vimukthi Peramuna (hereinafter referred to as “JVP”) at that time. The Anamaduwa police also declined to record a complaint in connection with the abduction of the Corpus.

9. The Petitioner states that few days later, on or around 28-08-1989, several officers from the Sri Lanka Army (who were said to be attached to the Army Camp located at Bombuwala, Kalutara) came to the Petitioner’s house and questioned the Petitioner regarding the Corpus’s background and education. The said Army personnel had the Corpus’s National Identity Card in their possession and upon inquiry, they told the Petitioner that the Corpus was being detained at the Army Camp situated in Anamaduwa. On the following day, i.e. 29-08-1989 the Petitioner visited the Anamaduwa Army Camp, but was unable to find any information about the Corpus.

A copy of an affidavit dated 10-02-1992 submitted by the Petitioner to the then President of the Republic of Sri Lanka is annexed hereto marked P2.

10. The Petitioner states that thereafter, he, through one of his relations, namely Jayasekara, managed to meet the then Army Commander, Hamilton Wanasinghe at his official residence. The then Army Commander, after making several telephone calls, told the Petitioner that the Corpus was alive, but was not in a good condition. The then Army Commander further said that he could not guarantee the Corpus’s immediate release and warned the Petitioner not to make any further inquiries about him (Corpus) as such inquiries could place his life in danger. However, notwithstanding the then Army Commander’s warning, the Petitioner visited numerous detention centres and Army camps across the country, where, those who had been taken into custody for allegedly partaking in the JVP-led rebellion, were detained. However, the Petitioner was unable to find any lead as to the place where the Corpus was incarcerated at the time. Thereafter, the Petitioner wrote to many State authorities and other institutions seeking their intervention to secure the Corpus’s release, but to no avail.

The Petitioner annexes hereto marked P3(a), P3(b), P3(c) and P3(d), copies of several communications relating to the inquiries made by him from the State authorities and other institutions in regard to the whereabouts of the Corpus.    

11.The Petitioner states that in or about 1995, he made representations to the Presidential Commission of Inquiry, which had been appointed by the then President of the Republic to investigate into the involuntary removal and disappearances of persons in the Central, North Western, North Central and Uva Provinces during the 1988-1989 period. However, by letter dated 30-04-1996, the Petitioner was informed that the said Presidential Commission was unable to trace the Corpus.

A copy of the aforesaid letter dated 30-04-1996 is annexed hereto marked P4.

12. The Petitioner states that since there was no positive response from any authorities concerned (as morefully set forth above), the Petitioner virtually abandoned his search for the Corpus. However, many years later, the following events transpired:

(a)  On or around 19-09-2005, three (3) police officers attached to the Criminal Investigation Department (hereinafter referred to as “CID”) descended on the Petitioner’s residence by a police van (Their names are not known to the Petitioner. However, they introduced themselves as CID Officers and one of them showed his official identity card to the Petitioner);

(b)  One of the said three (3) CID Officers was armed with a gun and was waiting outside, while the other two officers entered the Petitioner’s residence asking for the Corpus’s parents. The said two CID Officers then examined all the documents relating to the Corpus and one of them, at one point, seeing a communication received from the aforementioned Presidential Commission (containing a reference number, i.e. j$mq;a$26) said,“i¾”€fukak€m%shka;f.a€wxlh€yïn€jqKd”(Sir, we  found Priyantha’s number);

A copy of the aforesaid communication is annexed hereto marked P5;

(c)   Thereafter, the said Officers briefly inquired into the Corpus’s background and recorded statements from the Petitioner and his wife. The said Officers then categorically stated that the Corpus was still amongst the living and he had committed no wrong, but was purely unfortunate. Consequently, the Petitioner and his wife pleaded with the said Officers for an opportunity to see the Corpus, but one of them stated that they had no authority to grant such an opportunity. However, before leaving, the said Officers further stated that they might be able to bring the Corpus home in the near future, but were unable to give an assurance to that effect.

13. The Petitioner states that consequent to the aforesaid unexpected turn of events, he again wrote to the authorities concerned urging for the release of the Corpus and for any information relating to his whereabouts, but to no avail.

A copy of a letter dated 23-06-2009 written by the Petitioner to the then Inspector General of Police and a copy of a letter dated 10-10-2010 received by the Petitioner from the Presidential Secretariat are annexed hereto marked P6 and P7 respectively.

14. The Petitioner states that few years later, on or around 07-10-2011, around 7.25pm, he received a call from an individual who introduced himself as a CID Officer (The Telephone that the Petitioner had been using at the time had the ‘Caller Line Identification Facility’ and thus he identified that the relevant call had been made from 011 2384403). The said caller made inquiries about the Corpus and the circumstances, under which he was placed under arrest. When the Petitioner inquired about the Corpus’s whereabouts from the said caller, he said the Corpus was alive, but he couldn’t divulge the exact place where the Corpus was being detained. Subsequently, the Petitioner made inquiries from the Sri Lanka Telecom about the said telephone number (011 2384403) with a view to identifying the caller concerned. However, the officials of Sri Lanka Telecom refused to provide any information about the said telephone number and the subscriber concerned.

15. The Petitioner states that:

(a)  Subsequently, in or about June 2012, the Petitioner personally met the then Police Spokesperson, namely the 5^th Respondent at police headquarters and informed him about the Corpus and the inquiries made by the CID from time to time, wherein it was consistently stated that the Corpus was alive and thus he should still be in the custody of the State authorities;

(b)  Soon thereafter, the 5th Respondent telephoned the CID and referred the Petitioner to a higher officer thereof. (In the course of the said telephone conversation, it was revealed that the said telephone number, i.e. 011 2384403 was, in fact, belong to the CID). Prior to referring the Petitioner to the said higher CID officer (whose identity is not known to the Petitioner), the 5th Respondent gave the Petitioner his (the 5th Respondent’s) personal contact number, i.e. 0714413229 and asked the Petitioner to contact him if the Petitioner did not get any satisfactory response from the said CID officer;

(c)   Immediately thereafter, a police officer accompanied the Petitioner to the said CID officer’s room which was located in the same building, i.e. Police Headquarters. The said CID officer told the Petitioner that the information pertaining to 1988-1989 disappearances are contained in very old files and asked as to why the Petitioner was trying to burden the CID with age-old matters. The Petitioner then informed the said CID officer about the inquiries made by the CID via telephone and also in 2005. Thereafter, the said CID officer stated that the individuals, who had been taken into custody during the 1988-1989 JVP-led rebellion and held captive ever since, were finally released in 2009. The said CID officer thereafter indicated his disinterest in the Petitioner’s grievance and asked him (the Petitioner) to leave the CID premises;

(d)  The Petitioner then left the CID officer’s room and went straight to meet the 5th Respondent again. However, by the time the Petitioner reached the 5th Respondent’s office, he (the 5th Respondent) had already left the police headquarters to attend a wedding reception;

(e)   On the following day, around 10.00am, the Petitioner contacted the 5th Respondent on his personal contact number (0714413229) and he (the 5th Respondent) asked the Petitioner to contact him after about ten days’ time as he was due to go overseas. Accordingly, after about ten days’ time, the Petitioner contacted the 5th Respondent on the said mobile number, and the 5th Respondent then asked the Petitioner to call him back on the following day as he had just returned from his overseas visit;

(f)   Thereafter, on the following day, the Petitioner telephoned the 5th Respondent and he (the 5th Respondent) then told the Petitioner that the Corpus was there (in the custody of the State authorities) and he would be going to see him (Corpus) during the course of the day. Furthermore, the 5th Respondent asked the Petitioner to contact him on the next day so that he could inform the Petitioner about the whereabouts of the Corpus;

(g)  Accordingly, the Petitioner contacted the 5th Respondent on the next day, and to the utter surprise of the Petitioner, the 5th Respondent immediately disconnected the telephone call stating that he was unable to redress the Petitioner’s grievance.  Thereafter, the Petitioner tried to contact the 5th Respondent on several occasions, but the 5th Respondent did not respond to the Petitioner’s telephone calls.

16. The Petitioner states that thereafter, he made every endeavour to trace the place where the Corpus has been detained incommunicado, but his attempts were of no avail. The Petitioner verily believes that at present, the Corpus is either blind or incapacitated due to the acts of torture perpetrated by the law enforcement authorities at the time he was arrested/abducted and that is the very reason why his whereabouts were not disclosed by the 5th Respondent and the other State authorities. Furthermore, since the 5^th Respondent indicated that he had access to the Corpus, the Petitioner verily believes that the Corpus is presently in the custody of the police or prison authorities.

17. In the totality of the aforesaid circumstances, the Petitioner specifically states that the Corpus has been deprived of his liberty for over twenty five (25) years and to the best of the Petitioner’s knowledge, the Corpus has never been produced before any Court of Law nor has the Corpus been prosecuted and/or tried before any Court of Law.

18. The Petitioner further specifically states that:

(a)  The Respondents have failed to inform the Petitioner or the family members of the Corpus of the grounds for the Corpus’s arrest and therefore his (Corpus’s) arrest and the prolonged incommunicado detention are illegal;

(b)  The Corpus was not ‘a person subject to Military Law’ nor ‘liable to be delivered into military custody’ under the Army Act No. 17 of 1949 (as amended) at any point of time and therefore his (Corpus’s) arrest and detention ultra vires the powers of the Respondents;

(c)   There are no valid reasons whatsoever for the arrest of the Corpus and his continued incommunicado detention cannot be justified under the normal Law and/or any Regulations currently in force and therefore the Corpus has been illegally and arbitrarily detained by any one or more of the Respondents;

(d)  The Corpus had been a law-abiding citizen and had no involvement whatsoever in any unlawful activity and is, therefore, entitled to be discharged from the custody of the Respondents.

19. The Petitioner states that, in the circumstances morefully set forth above, he is entitled, inter alia, to:

(a)  A mandate in the nature of writ of habeas corpus to produce the Corpus before Your Lordships’ Court to be dealt with according to law;

(b)  A mandate in the nature of writ of habeas corpus discharging or releasing the Corpus from detention/custody.

20. The Petitioner states that he has only been able to give limited instructions to his Attorney-at-Law with respect to this Application as the Corpus is in incommunicado detention and thus the Petitioner respectfully reserves his right to add/name any other parties as Respondents to this Application and to tender further affidavits/documents during the pendency of this Application, should the need arise.

21. The Petitioner states that he has not invoked the jurisdiction of Your Lordships’ Court previously in respect of the matters pleaded herein.

Wherefore, the Petitioner respectfully prays that Your Lordships’ Court be pleased to:

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(a)    Issue notice on the Respondents;

(b)    Grant and issue a mandate in the nature of writ of habeas corpus to produce the Corpus before Your Lordships’ Court to be dealt with according to law;

(c)     Grant and issue a mandate in the nature of writ of habeas corpus releasing/discharging the Corpus forthwith from detention/custody;

(d)    Refer the matter, in the first instance, for an inquiry and report, to the Chief Magistrate – Colombo under the proviso to Article 141 of the Constitution of the Republic of Sri Lanka;

(e)     Award exemplary compensation in a sum determined by Your Lordships’ Court;

(f)     Grant the Petitioner costs of this Application or in the circumstances of the case grant the Petitioner exemplary costs at Your Lordships’ discretion;

(g)    Make such other order/direction, as Your Lordships’ Court shall seem just & equitable, as provided for by the Constitution of the Republic of Sri Lanka;

(h)    Grant such other and further reliefs as to Your Lordships’ Court shall seem fit.

                                                      Attorney-at-Law for the Petitioner 

Settled by:

Sanjeewa Ranaweera
Attorney-at-Law