by A Special Correspondent in Colombo
On Friday, 2 October 2026, investigators attached to the Criminal Investigation Department (CID) filed a motion before the Court and informed Court that retired Major General Suresh Sallay was not being released from the custody of the hospital by the doctors treating him.
The investigators accordingly sought an order requiring the entire medical team of consults and doctors responsible for his treatment to appear before Court and explain the basis upon which his continued hospitalisation was being recommended.
Having heard the submissions of the investigators, the Court made an ex parte order directing the medical team treating Major General Sallay to appear before Court. The matter was thereafter fixed for 6 October 2026, thereby bringing the matter before Court at an unusually early date.
It is noteworthy that the CID filed this application on a Friday, 2 October, notwithstanding the fact that CID cases are ordinarily called on Wednesdays. The circumstances in which this application was entertained and the matter was brought forward for hearing therefore merit particular scrutiny.
Of even greater concern is the apparent disparity in the manner in which applications made by the prosecution and those made by the defence are treated. The defence is ordinarily required to provide advance notice to the CID and the Attorney General before seeking to move a matter by way of motion, and is effectively prevented from obtaining similar urgent relief without first complying with such procedural requirements. Yet, in the present instance, the CID was permitted to move its application on a Friday, have it entertained in the absence of the defence, obtain an ex parte order, and secure an earlier date for the matter without the defence being afforded an opportunity to be heard before those orders were made.
This raises a fundamental issue of natural justice and procedural fairness. The basic and well-established principle that both sides must be afforded a fair and reasonable opportunity of being heard before a judicial determination affecting their rights and interests is made cannot be selectively applied. Where an application has the potential to directly affect the liberty, safety, medical treatment and fundamental rights of a person in State custody, the necessity for adherence to this principle becomes even more compelling.
The circumstances are particularly concerning because the matter directly affects the personal liberty, health and safety of Major General Sallay, who has already been in State custody for a prolonged period and is presently undergoing medical treatment. Any decision concerning his continued detention, hospitalisation or removal from the hospital necessarily has serious consequences for his rights and personal safety.
It is also significant that this latest development has occurred in the aftermath of the publication of the report of the United Nations Special Rapporteur, which expressed grave concerns regarding the conduct of the investigators and, importantly, concerns relating to the safety and treatment of Major General Sallay, including the prospect of his being returned to the very place of detention where allegations of ill-treatment have arisen.
Against that backdrop, the decision to summon the entire medical team, following an ex parte application by the investigators, assumes an even greater degree of significance. The medical professionals treating Major General Sallay are independent professionals whose primary responsibility is to safeguard the health and wellbeing of their patient. Any attempt to question or challenge their professional determination concerning his continued hospitalisation must therefore be approached with the utmost caution, transparency and procedural fairness.
The sequence of events — namely, the filing of the CID motion on a Friday, the entertainment of the application in the absence of the defence, the issuance of an ex parte order, the fixing of an unusually early date, and the apparent failure to afford the defence prior notice of that date — raises legitimate questions as to whether the principles of natural justice, equality of arms and the right to be heard have been adequately respected.
These concerns become all the more serious when considered against the broader context of the prolonged detention of Major General Sallay, the allegations concerning his treatment while in custody, his present medical condition, and the concerns reportedly raised by the United Nations Special Rapporteur regarding his safety and the manner in which the investigation has been conducted.
The protection of fundamental rights cannot depend upon which party happens to approach Court first. The rule of law requires that the State, the prosecution and the defence are all subject to the same standards of procedural fairness. Where the liberty and physical safety of a person in State custody are at stake, the obligation upon the Court to ensure that justice is both done and manifestly seen to be done is of paramount importance.
