සම්පූර්ණ තීන්දුව පහත දැක්වේ
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of an Application in terms of Articles 17 and 126 of
the Constitution.
Ratnayaka
Weerakoonge Sandya Kumari,
No:
4, Main Street,
Meegahatenna.
Petitioner
Case No: SC FR 75/2012 -Vs-
1)
Mr. Lakshitha Weerasinghe,
Sub
Inspector of Police,
Police
Station Meegahatenna.
2)
Mr. Shanthalal (3534)
Sergeant,
Police
Station Meegahatenna.
3)
Mr. Himala Rajapakse,
Officer-In-Charge,
Police
Station Meegahatenna.
4)
Mr. Lalith Pathinayake,
Senior
Superintendent of Police,
SSP
office, Nagoda,
Kalutara.
5)
Mr. N.K.Illangakoon,
Inspector
General of Police,
Police
Head Quarters,
Colombo
1.
5A)
Mr. Pujith Jayasundara,
Inspector
General of Police,
Police
Head Quarters,
Colombo
01.
6) Hon. Attorney General,
Attorney General’s Department,
Colombo 12.
Respondents
Before: Buwaneka Aluwihare, PC.
J.,
L.T.B. Dehideniya, J. and
Murdu N.B.Fernando, PC. J.
Counsel: Rasika Dissanayake for
the Petitioner
J.M. Wijebandara with
Y.S.Shehani for the 1st and 2nd Respondents.
Ms. S. Herath, SSC for the 3rd
to 6th Respondents.
Argued on: 06.08.2018
Decided on: 18.12.2019
Murdu N.B. Fernando, PC. J.
The Petitioner is an
Attorney-at-Law and by the Petition dated 24-02-2012 alleged the infringement
of her fundamental rights guaranteed under Article 11,12(1) and 13 of the
Constitution.
Thereafter on 29-05-2012 an
Amended Petition was filed seeking among other relief, the following:
i) a Declaration that the 1st
and 2nd respondents and/or the State have infringed the petitioner’s
fundamental rights guaranteed under Article 11 of the Constitution;
ii) a Declaration that the 1st
to 5th respondents and/or the State have infringed the petitioner’s fundamental
rights guaranteed under Article 12(1), 12(2) and 14(1)(g) of the Constitution;
and
iii) that the 1st to 3rd
respondents and all other police officers involved, concerned and/or
responsible for the ill treatment and obstruction of the petitioner in the
performance of her duties as an Attorney-at-Law be dealt with by way of a
disciplinary action.
Leave
to proceed was granted to the petitioner by this Court on 28-09-2012 for the
alleged violation of Article 11 and 12(1) of the Constitution.
The
relevant facts as narrated by the petitioner is as follows: -
On
27-01-2012, the petitioner went to the Meegahatenna police station to surrender
a suspect wanted in a case pending before the Magistrate Court of Matugama. She
met the 3rd respondent, the Officer In Charge of the police station at his
official quarters at about 8.30 am and on his instructions proceeded to the
police station and met the 1st respondent, the Officer In Charge of the crimes
division of the Meegahatenna police.
She
informed the 1st respondent that she came to surrender a suspect. At once the
1st respondent attempted to assault the suspect. She told the 1st respondent
not to assault the suspect and to follow the due process of law.
Thereafter
an exchange of words took place between the petitioner and the 1st respondent
and she was compelled to meet the 3rd respondent again and requested that the
suspect be produced before the Magistrate Court. The 3rd respondent directed
the petitioner back to the 1st respondent and informed her that he would speak
to the 1st respondent.
The
petitioner once again met the 1st respondent and requested that relevant
entries be made and she be issued with the reference number of the log entry,
as proof of production of the suspect before the police station. At that
moment, the 1st respondent verbally abused the petitioner and told her to stay
outside until she was summoned.
Whilst
she was standing outside the 1st respondent’s office, the 1st and 2nd
respondents came out and insulted the petitioner and when she asked the 1st and
2nd respondent to mind their language the petitioner was further abused and she
was even threatened with imprisonment. The petitioner tendered to this court
affidavits of her husband (who accompanied her to the police station since she
was in family way), her client and his parents to substantiate this incident.
The
petitioner alleged the behavior of the 1st and 2nd respondents caused her
severe pain of mind and humiliation which required medical treatment. Further
the petitioner pleaded that she verily believed that the said distress and
trauma caused her to miscarry the pregnancy. The petitioned produced two
laboratory reports with regard to her pregnancy and termination thereof dated
24-01-2012 and 09-02-2012.
The
facts stated by the 1st and 2nd respondents in their objections is as follows:
-
The
petitioner arrived at the police station at around 6.45 am on 27-01-2012 and
informed that she came to surrender a suspect. 4
Since it was time for the change of shifts and duty and
officers rostered for day duty had not reported to their desks to take down
necessary notes and statements, the petitioner was requested by the 1st
respondent to stay out until she was called. The petitioner was annoyed by this
request. Hence, the petitioner was asked to take a seat in the 1st respondent’s
room itself. The petitioner sat and got the suspect who was wanted in
connection with the offence of rape and stabbing also to sit and demanded that
the process be immediately attended with and the suspect be produced in Court
before 9.00 am. The petitioner also wanted the suspect to leave the police station
with her.
Then
the 1st respondent inquired from the suspect, whether he was in hiding after
committing two offences. An exchange of words took place again and the 1st
respondent informed the petitioner that he could arrest the suspect since he is
wanted in connection with a serious crime. Thereafter, the petitioner walked
out of the 1st respondent’s office and went towards the 3rd respondents
official quarters.
The
petitioner returned again and acted in a manner unbecoming of an
Attorney-at-Law and loudly insulted police officers in general, which prompted
the 2nd respondent (who was resting at the barracks after his night shift and
who recognized the petitioner as a Lawyer appearing in the Magistrate Court) to
come to the defence of the police officers. The 1st and 2nd respondents
produced before this Court the extracts of the Police Information Book to
substantiate their version.
The
1st and 2nd respondents further averred, that the petitioner used political
affiliations and demanded that the 1st respondent apologizes to the petitioner
but the 1st respondent did not tender an apology. The petitioner also
complained to the 5th respondent which resulted in a departmental inquiry
against the 1st and 2nd respondents but the petitioner failed to establish the
allegations levelled against the said respondents.
The
4th respondent, the Senior Superintendent of Police, Kalutara in his objections
filed before this Court stated, that he appointed the Assistant Superintendent
of Police Aluthgama to conduct an inquiry with regard to the incident and based
on the said inquiry the 4th respondent submitted his report to the 5th
respondent. The said report and the statements recorded at the inquiry were
produced before this Court by the 4th respondent. The statements recorded were
of the petitioner, her husband, the 1st, 2nd and 3rd respondents, three other
police officers attached to the Meegastenna police station and an independent
eye witness to the incident who was present at the police station. The 4th
respondent in his objections further stated that the petitioner had informed
the Inquiry Officer that she cannot produce any witnesses to substantiate her
allegations. The 4th respondent also averred before this Court, that the
Inquiry revealed that the petitioner behaved in an unruly manner within the
police station and abused the 1st and 2nd respondents causing much humiliation
and disgrace to them as well as to the police officers stationed at the police
station. The petitioner in her counter affidavit filed before this Court
stated, that she was attached to the Walallawita Pradeshiya Sabha as a Legal
Officer and admitted that she informed the political authority (a named senior
Cabinet Minister) about the incident who got down the 1st respondent to the
Pradeshiya Sabha and admonished him. The petitioner also stated that the 4th
respondent SSP, has falsified under oath to save his subordinate officers.
Having
referred to the factual matrix of this application as given by the parties, let
me now consider the said facts pertaining to the incident to ascertain whether
the petitioner’s fundamental rights guaranteed under Article 11 and 12(1) of
the Constitution have been violated by the respondents.
The
said two Articles reads as follows: -
Article
11 - “No person shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment,”
Article
12(1) - “all persons are equal before the law and are entitled to the equal
protection of the law,”
The
Counsel for the petitioner in his submissions, relied on three grounds to
justify granting of the relief prayed for in the petition. The said grounds
were that verbal abuse amounts to a violation of Article 11 of the
Constitution, the usual conduct of the 1st respondent and the breach of ‘Police
Rules 2012’ by the 1st respondent. It is observed that there is no reference to
the 2nd respondent in respect of the 2nd and 3rd grounds.
Let
me consider the 3rd ground relied on by the petitioner, i.e. the breach of
‘Police Rules 2012’ in the first instance. These rules were published in the
gazette notification bearing no. 1758/36 dated 18-05-2012 and were produced
before this Court together with the written submissions of the petitioner.
It
is observed that these rules issued by the Inspector General of police under
Section 55 of the Police Ordinance is cited as ‘Appearance of Attorney-at-Law
at police stations’ and lays down certain guidelines to be followed. In Clause
two it states that the rules shall be followed by all police officers of
whatever rank, serving in every police station in Sri Lanka.
Clause
three states, that every Attorney at-Law shall be treated cordially and
courteously and given a fair and patient hearing. Clause four goes onto state
that no police officer shall use physical force on an Attorney at-Law or resort
to the use of abusive language or any other form of intimidatory conduct.
Clause ten refers to the manner in which an officer of the police force who
violates the rules should be dealt with viz. punishable under the provisions of
Section 55 of the Police Ordinance and be subjected to a disciplinary inquiry
conducted by the Department of Police. The ‘Police Rules 2012’ were promulgated
after the alleged incident. Therefore, I do not wish to place any reliance on the
said rules in order to determine whether the 1st respondent breached the said
rules or whether the petitioner’s fundamental rights were violated by the 1st
respondent in view of the breach of the rules.
However,
this Court observes that a disciplinary inquiry had been conducted on the
instructions of the 5th respondent; and that the petitioner had failed to lead
evidence to establish the allegations levelled against the 1st and 2nd
respondents, especially the use of abusive language or that the 1st respondent
commited a wrong as alleged by the petitioner. Consequent to the inquiry the
recommendation of the 4th respondent had been to advise the 1st respondent, to
act in a more cordial and friendly manner when dealing with the public. It is
also observed that the 1st respondent had already been transferred out of the
station consequent to the alleged incident and prior to the holding of the
inquiry.
In
the aforesaid circumstances, we see no merit in the said submission of the
petitioner pertaining to the breach of “Police Rules” by the 1st respondent.
The
2nd submission of the Counsel for the petitioner before this Court was the
‘usual conduct’ of the 1st respondent. To substantiate the allegation of ‘usual
conduct’ the petitioner relied on a fundamental rights Application bearing No
SC/FR 331/2014 filed before this Court in which the 1st respondent tendered an
unqualified apology to the petitioner therein.
Upon
perusal of the petition and the journal entries of the said application
(tendered to this Court together with the petitioner’s written submissions) we
observe, that the petitioner of the said application is a person belonging to
the Muslim faith who had been arrested at the instigation of a 3rd party on a
false charge and assaulted and produced before the Magistrate Court on a ‘B’
report, in the aftermath of the March 2014 riots at Dharga Town, Aluthgama.
This incident has happened two years after the alleged incident complained of
in the instant application. The petitioner has not referred to any other
instance in which the conduct of the 1st respondent has been wanting.
In
the said circumstances, we see no reason to come to a finding detrimental to
the 1st respondent in respect of his ‘usual conduct’ as adverted to by the
Counsel for the petitioner, based only upon the above said incident. Hence, we
see no merit in the said submission.
The
3rd and final submission of the Counsel for the petitioner is in respect of the
use of abusive language by the 1st and 2nd respondents. It was submitted that
the said conduct of the 1st and 2nd respondents was a violation of the
Petitioner’s fundamental rights guaranteed under Article 11 of the
Constitution.
Prior
to discussing the said submission, I wish to observe that the petitioner has
refrained to make any submissions, in respect of the violation or an imminent
infringement of the fundamental rights
guaranteed under Article 12(1) of the Constitution by either one or any of the
respondents and/or the State, as prayed for in the Amended Petition filed
before this Court.
In
the said circumstances, it is not necessary for me to consider Article 12(1) of
the Constitution or its violation by either one or any of the respondents.
Nevertheless,
in the interest of justice, I have considered the facts envisaged in the
petition against the 3rd to the 6th respondents and I am of the view that the
said facts do not support a violation of Article 12(1) of the Constitution by
the aforesaid respondents against the petitioner.
With
regard to the violation of Article 12(1) of the Constitution by the 1st and 2nd
respondents, I wish to consider same in the light of the submissions made by
the petitioner with regard to Article 11 of the Constitution.
The
petitioner submits that she being a Lady Lawyer was abused and harassed inside
a state institution established to maintain law and order by persons entrusted
with the duty to secure the rights of the citizens and that the unbearable
distress and the trauma caused the petitioner to miscarry within a period of
two weeks into her pregnancy.
There
is no medical evidence led before this Court, except the two laboratory reports
to establish that the distress and trauma caused the petitioner to miscarry. In
the absence of any medical evidence to even establish that the petitioner sought
treatment or that the two incidents were remotely connected, or there was
causation between the said incidents, I see no reason to find a violation of
the petitioner’s fundamental rights guaranteed under Article 11 and 12(1) of
the Constitution by the 1st and the 2nd respondents solely upon the said
misadventure adverted to by the petitioner.
Further,
I observe that there is no medical evidence produced before Court to
substantiate that use of force or an act of assault was committed on the
petitioner by the said respondents. Thus, upon the said ground too, I see no
reason to find that the 1st and the 2nd respondents violated the fundamental
rights of the petitioner.
Sharwananda
CJ in Namasivayam Vs Gunewardena
[1989] 1 SLR 294 held that in the
absence of medical evidence to corroborate cruel treatment or torture a Court
will not hold that there had been a violation of Article 11 of the
Constitution.
The petitioner’s main
contention is that the petitioner was verbally abused and thus the verbal abuse
amounts to a violation the petitioner’s fundamental rights guaranteed under
Article 11 of the Constitution. To substantiates the said argument the
petitioner relies on the recent Judgment of this Court in Suppaiya Sivakumar
Vs Sargent Jayaratne and others SC FR 56/2012. S.C. Minutes dated 26.07.2018.
However, I
observe that the facts of the above case can easily be distinguished from the
instant application. In the case relied upon by the petitioner, Suppaiya
Sivakumar who was watching a Hindu religious celebration was assaulted by the
police officers with a club, subjected to continuous verbal and physical abuse
and dragged on a road continuously being beaten and treated like an offender in
front of his relatives and the general public. In the light of the medical
evidence produced, Aluwihare J, held that the act of assault and verbal abuse
of the petitioner Suppaiya Sivakumar was malicious and completely unwarranted.
His
Lordship referred to the Judgment of Shirani Bandaranayake J. in Abeywickrema Vs Guneratne [1997] 3 SLR 225 at page 228
wherein a passage from Justice A.R.B.
Amerasinghe’s book on ‘Our Fundamental Rights of Personal Security and Physical
Liberty’ which reads as follows: -
“Something might be degrading
in the relevant sense, if it grossly humiliates an individual before other’s or
drives him to act against his will or conscience”
was cited with approval and
held that the petitioner Suppaiya Sivakumar was subjected to degrading
treatment and the conduct of the police officers caused humiliation to the
petitioner Suppaiya Sivakumar and held that the said petitioner’s fundamental
rights guaranteed under Article 11 and 12(1) of the Constitution had been
violated.
In my view, no parallel can be
drawn between the above case and the instant application.
In the application before this
Court, admittedly there was no physical abuse or assault. There had only been
an exchange of words between the petitioner and the 1st respondent, which in my
view was completely unwarranted.
The petitioner walked into the
police station early in the day to surrender a suspect. The petitioner wanted
the matter expeditiously dealt with and the suspect be permitted to leave the
police station with her which in my view was also completely unwarranted.
The suspect was wanted in
respect of committing two offences, rape and stabbing with a knife and evading
police. When a suspect is surrended, the police need to take steps and follow
the due process of law and statements recorded and required investigations
done. The due process should not be hampered with time constraints and dictates
of Attorney at-Law watching the interest of the suspect.
The petitioner alleged that as
she informed the 1st respondent that she wanted to surrender the suspect the
1st respondent attempted to assault the suspect in front of her and she
requested him not to assault her client and then the 1st respondent bluffed
about his educational qualifications. The 1st respondent in his narration referred to the
non-availability of officers to take down notes which led to the delay in
attending to the matter of the petitioner and that the petitioner who appeared
to be annoyed shouted at the police officers saying ‘wg mdia tjqka’, among
other derogatory statements.
In all the statements produced
before this Court, a reference is made to the utterance of the petitioner ‘wg mdia tjqka’ viz
police officers having only a grade eight qualification. The 1st respondent a
sub-inspector appeared to have retorted back by saying that he has been to
campus. I also observe that in the affidavits filed before this Court annexed
to the petition, the petitioner’s husband, as well as the suspect and his
parents categorically state that the petitioner tendered a letter issued by an
ASP of a neighboring police division to the 3rd respondent and there was an
exchange of words with reference to the said letter as well. The petitioner is
silent on the said matter.
Having weighed the evidence
produced I tend to accept the narration given by the 1st and 2nd respondents
that the petitioner created a commotion at the police station.
In my view the afore said
conduct of an Attorney at-Law at a police station is unwarranted and
deplorable, more so when it comes from a Lady Lawyer who has being admitted to
the bar only three and a half years back.
Another factor that should be
borne in mind is that the office of an Attorney at-Law is also governed by the
Supreme Court (Conduct of and Etiquette of Attorney at-Law) Rules of 1988 where
it is specifically stated that on Attorney at-Law must not conduct herself in
any manner which would be reasonably regarded as unworthy, disgraceful and
dishonorable by Attorneys at-Law of good repute.
When analysing the behavior of
the petitioner and the 1st respondent based on the affidavits filed before Court,
I am reminded of the oft quoted saying that, ‘courtesy begets courtesy’.
Independent to the above
conduct of the petitioner, let me move onto consider whether by the actions and
the behavior of the 1st and the 2nd respondents especially the alleged verbal
abuse, violates the petitioner’s fundamental right guaranteed under Article 11
and 12(1) of the Constitution.
Amerasinghe J. in Channa
Peiris and others Vs Attorney General and others [1994] 1 SLR 1 made the
following observations pertaining to a violation of Article 11 of the
Constitution.
(i) the acts and conduct
complained of must be qualitatively of a kind that a Court may take cognizance
of. Where it is not so, the Court will not declare that Article 11 has been
violated;
(ii)
torture, cruel, inhuman or degrading treatment or punishment may take many
forms, psychological and physical; and
(iii)
having regard to the nature and gravity of the issue, a high degree of
certainty is required before the balance of probability might be said to tilt in
favour of a petitioner endeavoring to discharge his burden of proving that he
was subjected to torture or to cruel, inhuman or degrading treatment.
In Gunawardena Vs Perera and others [1983] 1 SLR 305 at
page 313, Soza J stated as follows: -
“There can be no doubt that the
burden in on the petitioner to establish the facts on which she invites the
Court to grant her the relief she seeks…the standered of proof is preponderance
of probability…. It is generally accepted that within this standard there could
be varying degrees of probability. The degree of probability required should be
commensurate with the gravity of the allegation sought to be proved. This Court
when called upon to determine the questions of infringement of fundamental
rights will insist on a high degree of probability as for instance a court
having to decide a question of fraud in a civil suit would. The conscience of
the Court must be satisfied that there has been an infringement.”
In the said case, the
petitioner a veteran lady politician along with others staged a demonstration
and were walking back along the Galle Road. Consequent to an incident that
occurred on the way back, she walked into the police station. She alleged that
at the police station she was thrown down, kicked and pushed and subjected to
cruel and inhuman and degrading treatment which violated her fundamental rights
set out in Article 11 of the Constitution. The Court having analysed the
evidence held that the allegation of degrading treatment had not been established
by proof to the high degree of probability required.
Similarly, in Mrs.W.K.M. de
Silva Vs Chairman Fertilizer Corporation [1989] 2 SLR 399 wherein the
petitioner, who was the secretary to the Chairman, came before this Court
alleging cruel, inhuman and degrading treatment at the hands of the Chairman.
This Court held that although it is clear that the petitioner has been degraded
and humiliated in front of her colleagues and subordinates and the conduct
speltout would undoubtedly amount to a grossly unfair labour practice, it does
not constitute torture or cruel, inhuman or degrading treatment or punishment
and fall far short of the degree of mental or physical coercisevenss or
viciousness required to fall within Article 11 of the Constitution.
The foregoing judicial
decisions of this Court has clearly identified and laid down that a high degree
of certainty is required before the balance of probability would tilt in favour
of a petitioner endeavoring to discharge the burden of proof with regard to an
allegation of torture or cruel, inhuman or degrading treatment. Having analsed the evidence
produced before this Court, I hold that the petitioner has failed to establish
her allegation of torture or cruel, inhuman or degrading treatment in the hands
of the 1st and 2nd respondents. Thus, I hold that the petitioner rights assured
under Article 11 of constitution has not been violated by the said respondent.
The
petitioner’s has also failed to establish the claim that the petitioner
fundamental rights to equality before the law and equal protection of the law
pledged by Article 12(1) of the constitution had been violated by the 1st and
2nd respondents.
For
the above reasons the application of the petitioner is refused.
Judge
of the Supreme Court
Buwaneka Aluwihare, PC. J.
I agree
Judge of the Supreme Court
L.T.B. Dehideniya, J.
I agree
Judge of the
Supreme Court
