By Mass L. Usuf –

Mass Usuf

Let it be clear that the shocking Detention Order (DO) signed by President Anura Kumara Dissanayake (AKD) to incarcerate Mohammed Rushdi (now released), a youth in his twenties under the Prevention of Terrorism Act, is purely an administrative act. Such actions are subject to the principle of proportionality thus ensuring that legal standards are complied with before intruding into the rights of a person. Administrative powers are conferred with discretion to enable the authority to select the best possible action amongst the available alternatives.

In the celebrated GCHQ case Lord Diplock said, “The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between his particular goals and the means he employees to achieve those goals, so that his action impinges on the individual rights to the minimum extent to preserve public interest”.

Slapping a three-month detention order for pasting a sticker is like using a cannon to shoot a sparrow.  Inspiringly, the Supreme Court of India in Coimbatore District Central Coop Bank v. Employees Association, (2007 INSC 448), held:

“ .. through the use of the doctrine of proportionality court would not allow administration to use a sledgehammer to crack a nut where a paring knife would suffice.”

In Amal Sudath Silva v Kodituwakku, Inspector of Police and Others [(1987) 2 Sri LR 119 at page 127], Atukorale J, said –

“The petitioner may be a hard-core criminal whose tribe deserve no sympathy. But if constitutional guarantees are to have any meaning or value in our democratic set-up, it is essential that he be not denied the protection guaranteed by our Constitution.”

Was The President Aware?

Before signing the detention order (DO), was President AKD aware that the suspect could be arrested under other prevailing laws? If he was not aware, should not his subordinates have made him aware of the presence of such alternatives? Or, should not he have questioned, especially, as a person who campaigned against its abuse, “why use the PTA?”. Or, was President AKD taken for a ride in the rush of Prime Minister Modi’s visit? Or, does this reflect on the efficiency of those in authority? Or, is it the cliché ‘old wine in new bottle’ system of law enforcement despite, the reverberation of “clean Sri Lanka”? Whatever it is, the cumulative effects are denying a youth his fundamental rights, stigmatising his future, causing mental trauma to his family, putting fear in the minds of his friends, relations and acquaintances and a massive public outcry bringing disrepute to the new government both locally and internationally. Not to mention, the damage to the credibility and trustworthiness of President AKD who was a steadfast campaigner against the use and abuse of the PTA.

Did President Think Objectively?

In the case of Weerawansa v, The Attorney-General and others, the Supreme Court took the following view:

Per Fernando. J. “The Minister did not independently exercise her statutory discretion, either upon personal knowledge or credible information. She merely adopted the 2nd respondent’s opinion. That was a patent abdication of discretion”.

Several reasonable questions come to mind. Did President AKD have personal knowledge about Rushdie? Did he have credible information about him? Or, did he sign the detention order based on another’s opinion in which case there would be a patent abdication of discretion. Or, is it the case that after the detention order was signed, they are now looking for evidence to justify their position?

Per Fernando. J. “Not only must the Minister of Defence subjectively have the required belief or suspicion, but there must also be objectively, ‘reason’ for such belief. ((2000 (1) SLR 387). The question arises what ‘belief or suspicion’ President AKD would have had when he signed the order and, objectively, what was his ‘reason’ for such belief.  In this case the Supreme Court held,

“the detention order dated 02.05.96 made by the Minister under section 9(1) of the PTA and the petitioner’s detention thereunder were unlawful and invalid in that (a) no material was placed justifying reasonable suspicion of unlawful activity and (b) …. Hence the petitioner’s detention was in breach of Article 13(2) for which infringement the State is liable.”

Why CCP Was Not Used?

In the Supreme Court case of Dhanushka vs C.D. Wickramaratne [SC FR 170/2022] reference was made to:

“ … the power to arrest a person conferred on a Police officer under the Code of Criminal Procedure Act No. 15 of 1979. Under Section 32(1)(b) of the Code of Criminal Procedure Act, a Police Officer is authorized to arrest without a warrant, any person:

i. who has been concerned in any cognizable offence or  ii. against whom a reasonable complaint has been made or iii. against whom a credible information has been received or iv. against whom a reasonable suspicion exists of his having been so concerned.”

The Court observed, “the power of arrest under the PTA is wider than that under the Code of Criminal Procedure Act.  In Dhanushka’s case the Petitioner was, “complicit in illicit drug trafficking which is prima facie, a ground to cause the arrest of the Petitioner even in terms of Section 32(1)(b) of the Code of Criminal Procedure Act (CPC).”

When one compares illicit drug trafficking, where a CPC Section 32(1)(b) arrest can be made, to making an arrest under the PTA and also issuing a Detention Order in relation to the ‘sticker’ issue seems bizarre – Wednesbury principles would cry out – irrational, disproportional and unreasonable. “A decision that is so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it.” 

Court As The Saviour

“Acts of Parliament have sovereign force, but legislation made under delegated power can be valid only if it conforms exactly to the powers granted”. (Wade “Administrative Law” 5th Ed. p. 748).

We are fortunate to have learned Justices who are undeterred when delivering bold, fearless and decisive decisions against abuse of power by those wielding authority. In so doing, strengthening the faith, optimism and legitimate expectations of the citizens who stand helpless on the face of manipulation, intimidation and deception by the State and its law enforcement agencies.

Per Kulatunga J. “Nevertheless, it is for the Court to determine the validity of the arrest objectively. The Court will not surrender its judgement to the executive for if it did so, the fundamental right to freedom from arbitrary arrest secured by Article 13(1) of the Constitution will be defeated. The executive must place sufficient material before the Court to enable the Court to make a decision, such as the notes of investigation, including the statements of witnesses, observations etc. without relying on bare statements in affidavits”. (Dissanayaka v. Superintendent Mahara Prison and Others (1991 (2) SLR 247)).

As citizens, we expect the President to exercise prudence and act wisely, when using the executive powers vested in him.

*Mass L. Usuf, LL. B (Hons) U.K., Attorney at Law  (Ex-Advisor to former Presidential Private Department of UAE)