Legal Services and Laws of Sri Lanka
SLR - 1982 Vol.1, Page No - 30
Major General Perera and others.
Wimalaratne J. Ratwatte J.
and Victor Perera J.
S.C. Reference No. 2 of 1981.
C.A. Application No. 41/81 (HCA)
December 14, 1981.
Writ of Habeas Corpus - Article 141 of the Constitution - Rules 47 and 49 of the Supreme Court Rules 1978 -production of
The stage at which the corpus should be produced before the Court of Appeal or before a Court of FirstInstanceisdecided
by the Court of Appeal by virtue of its inherent powers and not by virtue of any requirement in the Supreme Court Rules.The
Court of Appeal in determining this question will exercise its discretion according to wellknownprinciplesandpractice
and on a consideration of the circumstances of each case. The discretion remainsunfetteredbytherulesofcourt.The
questions referred to the Court are determined as follows:
(1)When a prima facie case is made out by the petitioner in an application made under Article 141 of theConstitutionthere
is no mandatory requirement that the body of the person alleged to be wrongfully detained shouldin everycasebebrought
up before the Court of Appeal (or the most convenient CourtofFirstinstance)beforeproceedingtoinquireintothe
legality of the detentionthe Court of Appeal has a wide discretion to determine the stageatwhichthebodyshouldbe
produced. When the Court of Appeal directs a judge of a Court of First Instance to inquire and report in terms ofthefirst
proviso to Article 141, it is lawful for the Court of Appeal to require the body of the person allegedtobeillegallyor
improperly detained to be brought up before such court of First Instance at the earliest opportunity.
(2)Even when the Court of Appeal is not satisfied that a prima facie case has been made out, the Court is entitledtoorder
the issue of notice on the respondents in terms of rule 49 of the "Supreme Court Rules, 1978".
(3)It is not mandatory under the terms of Article 141 for the Court of Appealtorequiretherespondenttoproducethe
Corpus before the Court on the date of return to the notice issued under rule 49.
Reference by Court of Appeal in terms of Article 125 of the Constitution.
V. S. A. Pullenayagam with S.C. Chandrahasan,
R. Srinivasan, S. Perinpanayagam, G. Keewaralingarn &
Miss. M. Kanapathipillai for Petitioners.
G.P.S. de Silva Addl: S.G. with S Ratnapala, S.C.
for Attorney General.
January 11, 1982.
This is a reference made by the Court of Appeal in terms of Article 125 oftheConstitutionforadeterminationbythe
Supreme Court of the following three questions relating to the interpretation of Article 141 of the Constitution:
1. When an application is made to the Court of Appeal under Article 141 of the Constitution, for the grantofanorderin
the nature of Writ of Habeas Corpus and the Court is satisfied that a prima facie case has been made out, shouldtheCourt,
in every such case under the terms of Article 141 of the Constitution issue a Writ requiring thatthebodyoftheperson
detained be brought up before the Court of Appeal (or the most convenient Court of FirstInstance) before proceeding
to inquire into the legality of such detention?
2. Where upon application made, the Court is not satisfied that a prima facie case has been made out, is the Court bound to
refuse the application in every case or is the Court entitled to issue notice on the respondents in thefirstinstanceand
thereafter determine the legality of the detention?
3. If the Court is entitled to issue a notice in the first instance is it mandatory under the terms ofarticle141ofthe
Constitution, to require the respondents to produce the corpus before the Court on the notice returnable date?
Article 141 is in these terms:-
"The Court of Appeal may grant and issue orders in the nature of writs of habeas corpus to bring up before such Court-
(a)the body of any person to be dealt with according to lawor
(b)the body of any person illegally or improperly detained in public or private custody,
and to discharge or remand any person so brought up or otherwise deal with such person according to law:
Provided that it shall be lawful for the Court of Appeal to require the body of such person to be brought up before themost
convenient Court of First Instance and to direct the Judge of such court to inquire into and reportupontheactsofthe
alleged imprisonment or detention and to make such provision for the interim custody of the body produced astosuchcourt
shall seem rightand the Court of Appeal shall upon the receipt of such report,makeordertodischargeorremandthe
person so alleged to be imprisoned or detained or otherwise deal with such person according to law, and theCourtofFirst
Instance shall conform to, and carry into immediate effect, theordersopronouncedormadebytheCourtofAppeal:
It has been submitted by learned Counsel for the Petitioners that according to its ordinary and naturalmeaning,theabove
Article requires that the Court, upon a prima facie case being made out, is obliged to order thatthebodyoftheperson
detained be brought up before it (or before a court of FirstInstance)beforetheCourtproceedstoinquireintothe
legality of such detention. The very name of the Writ - Habeas Corpus - means "have his body" and this empowers the Courtto
cause any person who is alleged to be unlawfully confined to be brought before the Court to enable the Court to inquireinto
the reason why he is confined, and to set him at liberty then and there, should it see fit. Counsel has referredustothe
practice of the Courts, both in England and in Sri Lanka in support of his contention that the body of the person isbrought
up before the Court commences inquiry into the legality of the detention.
The learned Additional Solicitor General has contended that the above Article contains noimperativerequirementsthatin
every case where a prima facie case of illegal detention is made out by the petitioner the Courtisobligedtoorderthe
production of the body before it. He does not contend that the Court of Appeal has no power to issue a Writ of HabeasCorpus
without first hearing the respondents, in appropriate cases. This is, however, a matter left to the discretion oftheCourt
to be exercised according to well established principles of practice and procedure. He submits thattheCourtwouldissue
the writ forthwith on an ex parte application only in cases of special urgency, where for example there is adangerofthe
respondent fleeing from the jurisdiction and depriving the prisoner of his remedy.
It has to be remembered that Article 141 only confers a power, just as Article 140 confers a power to theCourtofAppeal.
In English law that power was derived from the common law, and is beststatedinthefollowingpassagereferredtoby
Counsel for the petitioner:
"It is an order issued, in the particular instance, by the Court of Queen's Bench, calling upon a person by whomaprisoner
is alleged to be kept in confinement to bring such prisoner - to "have his body" whence the name habeas corpus -beforethe
court to let the court know on what ground the prisoner is confined, and thus give to the Court theopportunityofdealing
with the prisoner as the law may require. The essence of the whole transaction is that the court can by thewritofhabeas
corpus cause any person who is imprisoned to be actually brought before the Court and obtain knowledge of the reasonwhyhe
is imprisonedand then having him before the court, either then and there set him free or else see that he is dealt within
whatever way the law requires, as, for example, brought speedily to trial. "
"The High Court of Justice Possesses, as the tribunals which make up the High Court used to Possess, the powerbymeansof
the writ of habeas corpus to cause any person who is alleged to be kept in unlawful confinementtobebroughtbeforethe
court. The court can then inquire into the reason why he is confined, and can, should it see fit, set him then andthereat
liberty. This power moreover is one which the court alwayswillexercisewhenevergroundisshownbyanyapplication
whatever for the belief that any man in England is unlawfully deprived of his liberty. "
Dicey - Introduction to the study of the Law of the Constitution (10th Ed) pp 215, 216.
The existence or conferment of a power in a Court is one thingthe method of the exercise ofthatpowerisanother.Now
this power is exercised by the Courts according towellestablishedrulesofprocedureandpractice.InEnglandthe
procedure is regulated by the Rules of the Supreme Court made from time to time. The classical English practicebefore1780
was simply to have an ex parte motion for the writ, and if on that application the prisoner made out anarguablecase,the
writ issued. The case was determined on the return of the body of the prisoner and the cause of detention - Vide R.J.Sharpe
- The Law of Habeas Corpus (1976) p. 213. Between 1780 and 1938 the initial ex parte application was framed as a requestfor
a rule nisi requiring the respondent to show cause, on a certain day, why thewritshouldnotissue.IftheCourtwas
satisfied that the applicant had an arguable case the rule nisi would issue. The applicant would servetherespondentwith
notice of the rule nisi, and it was then incumbent upon the respondent to make out a case for the detention on the returnto
the rulethe argument at that stage became the substantial hearing. While the Court could still order the writtoactually
issue, the matter could readily be determined at this stage. The rule nisi procedure, however, allowed the Court totrythe
matter without a formal return and without the expense of having the prisoner brought physically before theCourt?Sharpe
The modern practice was adopted in 1938 and is contained inOrder54oftheRulesoftheSupremeCourt(1965).The
application is made ex parte to a Divisional Bench of the Q.B.D. or toasingleJudge.Ifthecourtgrantsleavethe
application is adjourned for notice to be served on such person as the Court directsand upon the adjourned hearingifthe
application succeeds the writ is ordered to issue. It is possible, however, for the Court or Judge under Rule 2 (1) toorder
that writ issue forthwith on ex parte application: "Although there is power by this Rule to make an order forthwithforthe
issue of the writ on the ex parte application, it is only exercised wherethereisalikelihoodthatdelaymaydefeat
justice or where the facts and law are clear. In other cases the Court or Judge makes one of the otherordersmentionedin
the rule, in which event the person detained must not be released meanwhile." TheSupremeCourtPractice(1979)Vol.1,
p.838. According to Wade-Administrative Law (4th Ed) p.521 the modern practice isnottorequiretheproductionofthe
prisoner unless there are special circumstances, but to order his releaseiftheimprisonmentisfoundtobeunlawful
whereupon the writ of habeas corpus is issued. The instances when the writ ought ex parte to issuearebestsummarisedin
Halsbury's Laws of England (4th Ed) Vol II para 1482. Incasesrelatingtothecustodyofminors,wherethereisa
possibility of a minor being removed out of the jurisdiction or of his custody being changed or partedwith,theissueof
the writ ex parte may be the expedient and proper course.
Although the Supreme Court of India has, by Order 32 Rule 3 of the S.C. Rules, adopted theclassicalEnglishpracticesof
requiring that the person who had the custody should himself bring the return and the body of the prisoner beforethecourt
on the day and the hour prescribed A. T. Markose seems to think that strictly the Courts have a discretioneithertoorder
the jailor to bring the body along with the return or only to make a return without bringing the prisonertotheCourtat
the first instance. He gives three reasons for this, one of which is that theallegationsmadeinthepetitionarenot
conclusive: Judicial Control of Administrative Action in India (1956) p. 165.
In Sri Lanka, when the power to issue the writ of habeas corpus was conferred on the Supreme Court bytheCourtsOrdinance
No.1 of 1889, the procedure adopted appears to have been the rule nisi procedurewhichprevailedinEngland.Incertain
cases a direction was included to produce the body of the person alleged to be wrongfully detained on the date ofreturnto
the rule nisi. Bracegirdle's case (39 NLR 193) was one such case. Bracegirdle was about to be deportedoutofthecountry
and that appears to be the reason for having him produced forthwith. But one cannot say that therehasbeenaninveterate
practice to have the body produced forthwith either under the rule nisi procedure or the later procedure ofissuingnotice.
For example, in H.C. Application No. 411/71 it was alleged that the arrest of one P.C. Gunasekera on 5.12.71andsubsequent
custody under emergency regulation 19 was wrongful. A Divisional Bench of the SupremeCourtdirectedthatthecorpusbe
produced to be dealt with according to law (that is,toreleasehim)onlyonthedateaftertheconclusionofthe
submissions of Counsel, and not on thenoticereturnabledate.ThesubsequentarrestandcustodyofGunasekarawas
challenged in H.C. Application No. 43/72 and the judgment of the Supreme Court in that case, which is reported in 76 NLR316
at 321 supports the statement that Gunasekara had been produced only after the conclusion of the submissionsofCounselat
the first inquiry.
After the repeal of the Courts Ordinance, the power to issue the writ of habeas corpus was conferred ontheformerSupreme
Court by section 12(2) of the Administration of Justice Law, No.44 of 1973. On the repeal ofthatlaw,thepowerisnow
conferred by Article 141 of the Constitution on the Court of Appeal. The power conferred is the identical power conferredby
the Court's Ordinance. The procedure, however, is now governed by Rules of Court made by the Judges of the Supreme Court,by
virtue of powers vested under Article 136 empowering the Court to make rules as to the proceedings in the SupremeCourtand
the Court of Appeal in the exercise of the several jurisdictions conferred on them. The relevant rules are contained inPart
IV of the "Supreme Court Rules, 1978" entitled "Writs and Examination of Records".
Briefly, the rules provide for the issue of notice on an ex parteapplicationsupportedbyaffidavitandexhibits,The
respondent is required, on service of notice, to file objections, if any, within a certain period. Although the rules arein
respect of all applications for writs, a distinction between habeas corpus and other writs is drawn in rule 47 sothatit
cannot be said that the Judges in making these rules have not specifically considered thespecialprocedureapplicableto
habeas corpus. It is significant that there is no reference in the rules for the productionofthecorpusonthenotice
returnable date. There appears to be a sound reason for this, and thatisthatthepowertoissuethewrithasbeen
conferred on the Court of Appeal, which is designated a Superior Court. Now, one characteristic of SuperiorCourtsisthat
they have inherent powers to do certain things. The stage at which the corpus should be produced before the CourtofAppeal
or before a Court of First Instance is decided by the Court of Appeal by virtue of its inherent powers and not byvirtueof
any requirement in the Supreme Court Rules. The Court of Appeal in determining this questionwillexerciseitsdiscretion
according to well known principles and practices and on aconsiderationofthecircumstancesofeachcase.When,for
example, it is alleged by a petitioner that the whereabouts of a person taken it to custody are unknown, or that thecustody
of a minor is about to be parted with or the minor is about be removed out of the country, a direction for the productionof
the corpus before the Court forthwith may be the proper and expedient course. The discretion remains unfettered by therules
of Court. But to hold that the respondent is under a duty in every case to produce the body on thedateofthereturnto
notice or on any date prior to the issue of the writ after inquiry would be to unduly fetter the discretion of theCourtof
Appeal. I would therefore determine the questions referred to us as follows :-
(1) When a prima facie case is made out by the petitioner in an application made under Article 141 of the Constitutionthere
is no mandatory requirement that the body of the person alleged to be wrongfully detained should in every case be broughtup
before the Court of Appeal (or the most convenient Court of First Instance) before proceeding to inquireintothelegality
of the detentionthe Court of Appeal has a wide discretion to determine the stage at whichthebodyshouldbeproduced.
When the Court of Appeal directs a judge of a Court of First Instance to inquire and report in terms of the first provisoto
Article 141, it is lawful for the Court of Appeal to require the body of the person alleged tobeillegallyorimproperly
detained to be brought up before such Court of First Instance at the earliest opportunity.
(2) Even when the Court of Appeal is not satisfied that a prima facie case has been made out, the Court is entitled toorder
the issue of notice on the respondents in terms of rule 49 of the "Supreme Court Rules, 1978".
(3) It is not mandatory under the terms of Article 141 for the Court of Appeal to requiretherespondentstoproducethe
Corpus before the Court on the date of the return to the notice issued under rule 49.
RATWATTEJ: - I agree.
VICTOR PERERA J: - I agree.
Case referred to Court of Appeal with determination