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FR petition before SC for unlawful arrest and detention after Easter Sunday bombings
A resident of Aluthgama has filed a Fundamental Rights application before the Supreme Court over his arrest and detention by police, following the Easter Sunday bomb attacks.
Twenty-five-year-old Mohammed Thufail Mohammed Milhan, who owns a jewellery shop in Attidiya, was taken in by the Mt Lavinia police on May 5, after being told a statement was required of him. He claims he has never had any criminal charges against him, nor has he been party to any court proceedings.
From inside the police cell, Milhan told his brother, Mirzan, that the police had asked him whether he had telephoned various persons, but that, he could not recognise these names. He had also been questioned in relation to content on his Facebook account. Mirzan visited Milhan at the Mt Lavinia police station every day of his detention.
On May 8, Sub Inspector Saliya (a Respondent in the case) informed Mirzan there was a Detention Order (DO) against Milhan and he would only be released after further investigations. Mirzan was asked not to go to court or, to secure any legal representation, as it would be futile.
Two days later, SI Ramanayake (another respondent) told Mirzan his brother could not be released, as some violence was expected in the country around May 13, and the police would be held responsible if Milhan was freed and was found to have been implicated.
On May 29, Mirzan complained to the Human Rights Commission of Sri Lanka (HRCSL). Upon following up, the HRCSL notified him they were not given the DO related to Milhan, despite being told by police that it existed.
An Attorney, who visited the Mt Lavinia police and asked for the DO, was shown a letter dated May 8, which was a request from the Deputy Inspector General of Police to the Secretary of Defence, requesting a DO under the Prevention of Terrorism Act (PTA). She was also told Milhan’s name was on a list of purported suspects sent by a State Intelligence Unit.
When another lawyer visited Mt Lavinia police on May 6, he was informed there was a 90-day DO and a ‘B’ Report had been presented to the Mt Lavinia Magistrate. The case related to Milhan was taken up in open court on June 10. His lawyer informed the Magistrate that he was held at the Mt Lavinia police station for around 35 days without being produced in court and without a DO. An application was made for the Magistrate’s intervention and oversight over the arbitrary detention
On June 11, the Magistrate informed the lawyer that a reference number for a DO had been provided. On insistence that he satisfy himself that a proper DO existed, and on highlighting the dangerous nature of permitting reference numbers to be treated as valid DOs, the Magistrate kept the case down until the police officer representing Mt Lavinia police, fetched the DO, which was said to be at the police station.
That afternoon, the Mt Lavinia police informed the Magistrate they did not have a DO. The Magistrate did not make an order on the application for Milhan’s release and recorded that no DO was made available. He was returned to the custody of the Mt Lavinia police.
Milhan subsequently petitioned the SC over his arrest, alleging he was unlawfully detained without any legal authority, as there was neither a remand order nor a DO. His Counsel stated in court that Milhan was hurriedly released on July 10, after his petition came up for support the previous day, July 9.
His petition states that his arrest appears to have been made in terms of the PTA, but that, the only information available to him was that his name appeared at number 84, in a list of persons issued to the Mt Lavinia police by the Chief of National Intelligence (CNI); and “the vague allegation” that he shared material on his Facebook page relating to the violence in Aluthgama in 2014, that is purportedly extremist in nature.
The arrest fails to satisfy the requirements in the PTA, which states in Section 6 (1) that it must be shown that the petitioner is “connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity”. No unlawful activity had been disclosed whatsoever.
The respondents are the Headquarters Inspector of Mt Lavinia police, SI Ramanayake, SI Saliya, the Inspector General of Police, CNI Maj Gen Ruwan Kulatunga, the Defence Ministry Secretary and the Attorney General.
The State Counsel appearing for them said a DO and a revocation of such DO were available to be submitted to court. The SC permitted the State to file limited objections within three weeks and the Petitioner to file counter objections thereafter.
The case was fixed for support for leave to proceed on October 2.