දහහත් හැවිරිදි
තරුණයා මැරු, එල්ලුම් ගස දිහා බලා ඉන්න පොලිස් කාරයන් 6 දෙනාට වන්දි ගෙවන්නත් සිද්ධ වෙයි.
එවක 17 හැවිරිදි
සඳුන් මාලින්ග මිය යන්නේ කන්දකැටිය පොලිස් ස්ථානයේ පොලිස් කාරයින් 06 දෙනෙකු රංචු
ගැසි පහරදී, අධිකරණය උපයෝගී කරගෙන රිමාන්ඩ් භාරයට පත් කිරීමෙන් පසුවයි.
2014 මැයි 7 වනදා සහ සවස සඳුන් සිය ඥාතීන් සමග ත්‍රිරෝද රථයක් මිලදී ගැනිමට යන
අවස්ථාවේදී
කන්දකැටිය
පොලිස් ස්ථානයේ පොලිස්කාරයෝ 6 කු ඔවුන්ට පහරදී අත්අඩංගුවට ගෙන අධිකරණය මගින්
රක්ෂිත බන්ධනාගාර ගත කරනු ලැබීය.
මෙම පහර දිම
නිසා මරණාසන්න තුවාල ලැබ අසාධ්‍ය තත්ත්වයට පත් වූ සඳුන් රෝහල් ගත කිරීමේන් පසුව
මිය ලදී.
මෙම සිද්ධිය
මහත් ආන්දෝලනයකට ලක් වූ අතර පොලීසියට මෙම අපරාධය කරන ලද පොලිස්කාරයින්ට විරුද්ධව
නීතිමය පියවර ගැනීමට
සිදුවිය.
සදුන්ගෙ මව හා
පොලිස් වධහිංසාවට ලක්වූ ඥාතීන් හතර දෙනා මෙම පොලිස් මෙම පොලිස් කාරයින්ට එරෙහිව ශ්‍රේෂ්ඨාධිකරණයේ
මූලික අයිතිවාසිකම් නඩුවක් පවරනු ලැබීය.
2014
ජුනි මස 5 දින පවරන්න ලැබූ මෙම මූලික අයිතිවාසිකම් නඩු ව (පෙත්සම්) අදාළව ලිඛිත දේශන 2020 සැප්තැම්බර් මස18
දින ඉදිරිපත්
කරන ලද අතර,
විභාගයට ගන්නා
ලද්දේ 2020 සැප්තැම්බර් 22ය.
ශ්‍රේෂ්ඨාධිකරණ විනිසුරුවරුන් වන සිසිර ඩි අබෲ, මුර්දු ඒන් බි ප්‍රනාන්දු හා
එස් තුරෙයිරාජා ඉදිරියේ විභාගවින. තීන්දුව 2021මැයි මස 21 ප්‍රකාශයට පත්කරන ලදී.
එම තීන්දුවට
අනුව එවක කන්දකැටිය පොලිස් ස්ථානයේ සේවය කළ, දැනට මරණිය ඳඩුනම නියම වි සිටින, පොලිස් කොස්තාපල්වරුන් වන අබේරත්න, බී. පි. කේ. ගමගේ, එස්. එම්. ආර්. කේ. කුමාර, සිවිල් ආරක්ෂක ඒස්. ජේ. ඒම්. ජයසුන්දර, පොලිස්
සහයක ඩී. එන්. විජේරත්න සහා උප පොලිස් පරීක්ෂක ආර්. පී. සෝමරත්න යන පස් දෙනා, මූලික අයිතිවාසිකම් උල්ලංඝනය
කරන ලද බවට තීරණය කර, පෙත්සම් ඉදිරිපත් කරන ලද, සඳුන්ගේ මව හා ඥාතින්ට වන්දි ගෙවන ලෙසට නියම කරනු ලැබීය.
රජය මෙම සිද්ධිය සම්බන්ධයෙන් විමර්ශනය කර, ඔවුන්ට
එරෙහිව මිනී මැරුම් චෝදනා ඇතුළුව, අපරාධ චෝදනා යටතේ බදුල්ල මහාධිකරණයේ නඩු පවරා
පවරනු ලැබීය. ඒම නඩුවෙන් ඔවුන් පස්දෙනාට මරණීය දණ්ඩනය නියම විය. මෙම තත්ත්වය මත
රජය වගකීම ඉටු කර ඇති බව ශ්‍රේෂ්ඨාධිකරණයේ නිගමනය විය.
මෙම තීන්දුවේ මහේස්ත්‍රාත්
වරයාගේ ක්‍රියා කලාපය සුදුසු නොවන බවට සටහනක් ඇතුළත් කර තිබේ.
සම්පූර්ණ නඩුව පහත දැක්වේ.
IN
THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an Application under and in terms of Article
17 and 126 of the Constitution of the Democratic Socialist Republic of Sri
Lanka.
Case no.SC/ FR/ 157/2014
JUDGEMENT
Case no.SC/FR/157/2014 , Case
no.SC/FR/182/2014 ,Case no.SC/FR/183/2014
Case no.SC/FR/184/2014, Case no.SC/FR/185/2014
1. Kanda Udage Malika , Kosmo Farm, Akurukaduwa,
Meegahakiwula.
PETITIONER
VS.
1. D.M. Aberathna ,Police Constable, Kandaketiya Police station,
Kandaketiya.
2. D.P.K. Gamage, Police Constable, Kandaketiya Police station,
Kandaketiya.
3. S.M.R.P. Kumara , Police Constable, Kandaketiya Police
station, Kandaketiya.
4. S.J.M. Jayasundara Civil Defence Force, Attach to the
Kandaketiya Police station,
Kandaketiya.
5. D.M. Wijerathna Reserve Staff attach to the Kandaketiya,
Police station,
Kandaketiya.
6. R.P. Somarathne Sub Inspector, Kandaketiya Police station, Kandaketiya.
7. Officer in Charge Kandaketiya Police station, Kandaketiya.
8. Dr. Jagath Perera District Medical Officer, Meegahakiwula
Government Hospital,
Meegahakiwula.
9. Senior Superintendent of Police (SSP) Badulla Range,
Badulla.
10. Deputy Inspector General of Police , Badulla Range,
Badulla.
11. Superintendent of Prison, Badulla Prison, Badulla.
12. Commissioner of Prison, Prison Department, Welikada.
13. Mr. Pujith Jayasundara ,Inspector General of Police,
Police head Quarters,
Colombo 01.
14. Hon. Attorney General , Attorney-General’s Department,
Hultfsdorp,
Colombo 12.
RESPONDENTS
BEFORE : SISIRA J. DE ABREW, J.
MURDU N. B.
FERNANDO, PC, J. AND S. THURAIRAJA, PC, J.
COUNSEL : Mr. Lakshan Dias with Ms.
Shafnas Shamdeen for the Petitioner
Mr. Pradeep Fernando for 1st to
3rd and 5th and 6th Respondents
Mr. Madhawa Tennakoon SSC with Mr. Thivanka Attygalle SC for
the 14th Respondent.
WRITTEN SUBMISSIONS: Petitioner on 18th
September 2020.
14th Respondent on 21st September
2020.
ARGUED ON : 22nd
September 2020
DECIDED ON : 21st
May 2021
S. THURAIRAJA, PC, J.
The Parties in Case no.SC/FR/157/2014
The Petitioner; Kanda Udage Malika, is petitioning on
behalf of his 17-year-old deceased son (a child), P.H. Sandun Malinga (Herein
after sometimes referred to as the deceased) who was deceased in the custody of
the Police.
The 1st Respondent;
D.M. Aberathna, 2nd Respondent;
D.P.K Gamage and 3rd Respondent;
S.M.R.P. Kumara are Police Constables in the Kandaketiya Police station and the
4th Respondent; S.J.M.
Jayasundara is in the Civil Defence Force, attached to the Kandaketiya Police
station. The 1st – 4th Respondents are alleged to have directly violated the
Fundamental Rights of the deceased while the 5th
Respondent; D.M. Wijeratna who
belongs to the Reserve Staff attached to the Kandaketiya Police station, the 6th
Respondent; R. P. Somarathne Sub
Inspector, Kandaketiya Police station along with 7th
Respondent; the Officer in Charge of
the Kandaketiya Police station, the 8th Respondent;
Dr. Jagath Perera, the District Medical Officer of Meegahakiwula, the 9th
Respondent; Senior Superintendent
of Police of Badulla, 10th Respondent;
Deputy Inspector General of Police of Badulla, 11th
Respondent; Superintendent of
Prison of the Badulla Prison, 12th Respondent;
the Commissioner of Prison, Welikada and 13th
Respondent; Mr. Pujith Jayasundara
the Inspector General of the Police are alleged to have indirectly contributed
to the said violation being authorities under whose guidance and/or assistance
the said individuals acted, while the 14th
Respondent is the Hon. Attorney
General.
The Petitioner instituted legal action in the Supreme Court
under Article 126 of the Constitution of Sri Lanka against the 1st
-14th Respondents on the 5th of
June 2014 for the violation of the Fundamental Rights of the deceased
guaranteed by Articles 11, 12(1),13(1),13(2), 13(3), 13(4) of the Constitution.
On the 3rd of March 2015 the Supreme Court granted leave to proceed for
the alleged violation of the Fundamental Rights of the deceased guaranteed
under Article 11 of the Constitution against 1 – 6th
Respondents and under Articles 12(1), 13(1) and 13(2)
of the Constitution against the 1st –
14th Respondents.
It is pertinent to note that the instant case of SC/FR/157/2014
was taken together with cases SC/FR/182/2014, SC/FR/183/2014,
SC/FR/184/2014, SC/FR/185/2014 with the agreement of the parties as the
impugned conduct in all the applications is the same. The Petitioners in the
above cases are the relatives of the deceased who accompanied him and who were
further subject to assault by the errant police officers.
The Petitioners in particular are, in SC/FR/182/2014; Gamini
Hewanayake 42 year old brother-in-law of the Petitioner to the current case and
the uncle of the deceased, SC/FR/183/2014 Peruma Hewa Kasun Wiraj Madumadawa 20
year old elder son of the Petitioner to the current case and the brother of the
deceased, in SC/FR/184/2014 R. A. Wijeratne a 42 year old friend of the
brother-in-law of the Petitioner to the instant case and SC/FR/185/2014 Kanda
Uda Kularathne 56 year old brother of the Petitioner to the current case and
the uncle of the deceased. The Respondents in all the above cases are the 1st
- 14th Respondents to the current case. Accordingly, the following
judgement shall bind the parties to the current case and the aforementioned
cases.
The Facts
The facts of the case as per the documents submitted before
this Court are as follows,
On the 7th of May 2014 at around 5.30 pm the deceased along with his
brother; Peruma Hewa
Kasun Wiraj Madumadawa, two uncles; Gamini Hewanayake and Kanda Uda Kularathne and
a friend of his uncle; R.
A. Wijeratne who are the Petitioners of the aforementioned cases (herein
after referred to as other Petitioners) had left to Katawatte with the
intention of purchasing a three-wheeler.
The deceased was given Rs. 75,000/- by his father for the
purchase of the said three-wheeler. Once the deceased and other Petitioners
reached Katawatte they were further directed by the seller to the School in
Bogahatenna.
In the meantime, the Kandaketiya Police had received a 119
message (Police Emergency contact) at 8.55 pm indicating that seven persons had
entered the Bogahatenna forest reserve at Katawatte and were engaged in
treasure hunting.
As per the instructions of the 7th
Respondent, the 6th Respondent
had proceeded to the reported area with 1st –
5th Respondents at 9.00 pm and had arrived at the location passed
9.45 pm.
According to the other Petitioners, when they reached the
school, a group of police officers had walked towards the deceased and the
other Petitioners and had surrounded them. The 6th Respondent
had inquired whether they had been treasure hunting and had proceeded to beat
them. Even though the brother of the deceased stated that they did not come
treasure hunting but to purchase a three-wheeler, the police officers have
continued to attack them. During this time the 4th Respondent
had advised the 6th Respondent as follows,
‘මුංට බබෝම්බ 5ක්
දාලා ඇතුලට දාම’
(Let’s
introduce 5 bombs and arrest them)
rather than attacking them at the time.
However, the 6th Respondent who
decided to ignore the same had continued to assault the deceased and the other
Petitioners. It is stated that the Respondents attacked the deceased and the
other Petitioners using their arms, legs and even a baton.
The 6th Respondent had then instructed to bring the Police jeep to
the location.
After sending the four other Petitioners to the Jeep, the 1st
- 6th Respondents had continued to attack the deceased. When the
brother of the deceased tried to escape from the jeep, not being able to bear
the attacks against his brother, he had been hit in the ear and locked inside
the jeep.
The 1st – 6th Respondents had then proceeded to take the deceased to a
green path and brought him back 45 minutes later and has put him to the jeep.
The other Petitioners state that the deceased had wept and complained stating
that the 1st – 6th Respondents had attacked him while accusing him of treasure
hunting.
Further, the 6th Respondent had
stated,
‘ උඹලව මරණ එක මහ කජ්ජක් බෙබම්’
(Killing all of you is not a big deal)
and has proceeded to take them to the police station. The 6th
Respondent while pointing at one of his scars had stated that
he got the same during a mission to capture ‘Army Suranga’ and that he will
provide the same fate as of ‘Army Suranga’ to the deceased and the other
Petitioners.
The 1st – 3rd ,5th and 6th Respondents in their statement of objections state that at
their time of arrival to the scene, there was a commotion taking place between
the parties and the said Respondents only used minimum force to separate them
and had questioned them later.
However, as per the Post-Mortem Report (PMR) of the deceased,
the deceased had several injuries including blunt forced head and chest injuries
involving the brain, heart and Lungs (sic). As per this evidence it
is clear that the injuries were not due to a ‘commotion’ or a result of the use
of ‘minimal force’ but due to heavy attacks possibly as described by the
Petitioner.
Other
Petitioners claim that the police officers had also taken their wallets.
Once the deceased and the other Petitioners were taken to the
Police station, they were forced by the 6th Respondent
to sign a document after which they were put in the cell in the Police station.
Further he had mentioned to the uncle of the deceased (Petitioner in case
application no. 185/2014) that he will not free him for a year as he was acting
as if he didn’t care much about the situation.
The Petitioner claims that once she was made known of the
arrest of the deceased and other Petitioners by a known person, she visited
them in the police cell at around 2.30 am of 8th May
2014.
At that time the deceased had complained of chest pains and
requested the Petitioner to rub his chest. When she requested the reserve
police officer to admit him to the hospital as she realised that he was in
critical condition the officer had informed that nothing could be done as there
were no officers at the station and ordered them to come later in the morning.
When the Petitioner arrived at the police station at around
7.30 am the deceased was in his worst condition, lying on the cold floor while
crying. When the Petitioner rubbed his chest, she realised that the chest
region was swollen.
When the Petitioner requested the 6th
Respondent to take the deceased to the hospital, he had
yelled at the Petitioner stating,
‘ කෑ ගහන්බන් ෙැතුව පලයව්,
අපි මන්ව ඉස්පපිරිතාබේ බගනියන්ෙ තමයි හදන්බන් ‘
(Get out without shouting, we are going to take them to the
hospital)
At around 8.30 am the deceased along with the other
Petitioners were taken to the Meegahakiwula District Medical Officer (DMO), who
is the 8th Respondent to the case. Before producing them before the DMO,
the 6th Respondent has had a private conversation with him for about
30 minutes and then has proceeded to produce the deceased and the other
Petitioners.
However, it was stated that the 8th
Respondent had not inquired about any wounds/ assault of any
of the parties produced.
The parties had been brought back to the Kandaketiya Police
station and at about 12.45 pm they had been taken to the Magistrate Court of
Passara.
In the meantime, the Petitioner had gone to the Magistrate
Court of Badulla as she was informed that the deceased and the other
Petitioners will be produced there. Since they were not present, she had then
proceeded to the Kandaketiya Police station to inquire about the absence of the
deceased and other Petitioners at the Magistrate Court of Badulla , where she
was informed that they were being presented at the Magistrate Court of Passara.
The Petitioner had then rushed to the Magistrate Court of Passara.
However, the 6th Respondent denies
such communication regarding producing all suspects at the Magistrate Court of
Baddula.
The case was heard in the Chamber of the Honourable
Magistrate. The Respondent had submitted that the deceased and the other
Petitioners had been arrested for treasure hunting. It was stated that, at the
hearing the lawyer of the deceased and the other Petitioners were not given an
opportunity to present their case but was constantly interrupted by the
Respondents. As per the request of the Respondents, the Magistrate had ordered
the deceased and the other Petitioners to be remanded for a period of 14 days,
till the archeological report of the site in which the deceased and the other
Petitioners were arrested was prepared and presented.
Following the above order, the deceased and other Petitioners
were taken to the Remand Prison of Badulla where the deceased and his elder brother
(Petitioner in case no. 183/2014) had been kept separately from the other three
Petitioners (Petitioners in case no.185/2014, 182/2014, 184/2014). The deceased
and his elder brother had fallen asleep at around 8.30 pm. The brother of the
deceased had woken up at around 5.30 am on the 9th of
May 2014 to see the deceased panting and struggling for breath.
Once the brother of the deceased informed the above to the
prison officers, they had then taken the deceased to the Badulla Hospital. The
prison officers who returned from the hospital had informed that the deceased
had passed away and has requested for the contact number of the Petitioner’s
husband.
Accordingly, following a phone call from the prison at around
8.30 am, the Petitioner together with her husband had arrived at the prison.
The brother of the deceased stated that a report was taken
from him regarding the death of the deceased. The other Petitioners had then
been taken to the Judicial Medical Officer (JMO) who examined the wounds and
made note of the same.
The brother of the deceased was then taken to identify the
body of the deceased and taken back to the Police station while the other
Petitioners were taken to the Mental Health Unit. He was later taken to the
Mental Health Unit on the 29th of May 2014.
The other Petitioners including the elder son of the
Petitioner were remanded till the 30th of
May 2014 and was released on the same date.
In the instant case, the
mother of the deceased has come before this court seeking relief under Article
126 of the Constitution for the rights of his deceased son, guaranteed
under Articles 11, 12(1), 13(1) and 13(2).
The Violation of Fundamental Rights
Article 17 of the Constitution provides for remedial action
for breach of Fundamental Rights subject to the Article 126 which provides for
the jurisdiction of the Supreme Court and its enforcement mechanism. As seen in
previous cases such as Sriyani Silva V. Iddamalgoda, Officer-in-Charge,
Police Station Paiyagala and Others [2003] 1 SLR 63 this right is extended
to any person with legitimate interest to prosecute. Accordingly, in the
current circumstance the death of the deceased will not cease his right to take
remedial actions, but the right will be extended to the Petitioner who is the
mother of the deceased.
Alleged infringement of Article 11 of the Constitution
Article 11 of the Constitution reads,
“No person shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment”
This Article in our Constitution is further in line with many
International Conventions and Declarations of Human Rights such as Article 5 of
the Universal Declaration of Human Rights, Article 7 of the International
Covenant on Civil and Political Rights and Article 3 of the European Convention
on Human Rights which prohibit torture, inhuman or degrading treatment and
punishment.
Article 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment reads as follows,
"Torture means any act by which severe pain or suffering,
whether physical or mental is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of
having committed, intimidating or coercing him or a third person, or any reason
based on discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions"
In assessing cases such as Amarasinghe V. Seneviratne and
Two Others [2010] 2 Sri LR 205, Bandula Samarasekera V. Vijitha Alwis,
O.I.C., Ginigathhena [2009] 1 Sri LR 213, Channa Pieris and Others V.
Attorney General and Others [1994]1 SLR 1 it is evident that acts under
Article 11 of the Constitution are broadly interpreted by this court to take
many forms including both physical, psychological form.
However, in the current situation such distinction would not
be necessary as there is clear evidence of physical torture.
In the instant case the burden is on the Petitioner to prove
to the court on a preponderance of evidence with a high degree of certainty the
violation of Fundamental Rights by the said Respondents.
As per Dr. Shiranee Bandaranayake J in Bandula
Samarasekera V. Vijitha Alwis (supra),
“In order to establish alleged allegation of torture it would
be necessary for an aggrieved party to corroborate his averments against the
Respondents and for such corroboration it would be necessary to produce
evidence including medical evidence”.
As per the petition and affidavits submitted before this
court, while the deceased and other Petitioners were waiting for the seller of
the three-wheeler, the 1st - 6th Respondents have reported to the area and severely assaulted
the deceased and other Petitioners and further taken steps to separate the
deceased from the group and
assault him for a period
of 45 minutes. At the end of which, the deceased had been weeping and
complaining of the assault by the 1st-
6th Respondents.
In the statement of objections, the 1st–
3rd ,5th and 6th Respondents deny the above, stating that at the time of arrival
to the scene, there was a commotion taking place between the parties and the
said Respondents hence used minimum force to merely separate
them.
I find this response to be rather unconvincing especially in
light of the PMR of the deceased submitted to this court. The PMR lays down
nine injuries (Ante mortem) including,
i
i. A scalp contusion (4 x 5 cm – dark blue) with a deep
haematoma of the back of the head
ii
ii. A contusion (10 x 13 cm – dark blue) on the chest
iii
iii. A graze (1 x 1.5 cm – brown scab+) with a deeper
contusion (3.5 x 4 cm) on the left lower abdomen
iv
iv. A contusion (4.5 x 6 cm – dark blue) on the posterior
aspect of the right shoulder
v
v. A tramline contusion (2 x 21 cm – dark blue) on the
posterior aspect of the trunk across the spine
vi
vi. A graze (0.5 x 1 – brown scab+) with a deep contusion
(2.8 cm x 4.5 cm) on the right loin
vii
vii. A graze (4 x 10 cm – brown scab+) on the posterior
aspect of the right elbow
viii
viii. A tramline contusion (2 x 8 cm dark blue) on the
posterior aspect of the right thigh
ix
ix. Heavy blunt forces [ ii, iv & v above] have caused
effect to lungs and heart
Could a ‘commotion’ between the deceased and the other
Petitioners or ‘minimum force’ used by the said Respondents cause the
aforementioned injuries leading to the death of the deceased? The answer to the
above question is negative, as the explanation of the said Respondents do not
justify the grave injuries set out above. Further, even if the Respondents are
to use minimum force this would not mean subjecting the person to torture or
inhuman treatment. This is further supported by cases such as Kumara V.
Silva, Sub-Inspector of Police, Welipenna and Others [2006] 2 Sri LR 236 and
Amal Sudath Silva V. Kodituwakku [1987] 2 Sri LR 119.
It is noteworthy to highlight the following statement of
Atukorale, J. In Amal Sudath Silva V. Kodituwakku [supra],
“Nothing shocks the conscience of a man so much as the
cowardly act of a delinquent police officer who subjects helpless suspect in
his charge to depraved and barbarous methods of treatment.... Such action on
the part of the police will only breed contempt for the law and will tend to
make the public lose confidence in the ability of the police to maintain law
and order “
Therefore, as per the evidence submitted it is apparent that
the deceased has been subject to torture or to cruel, inhuman or degrading
treatment and accordingly the 1st -6th
Respondents are in violation of Article 11 of Constitution.
Alleged Infringement of Article 13 (1) ,13 (2) of the
Constitution
Article 13 (1) of the Constitution reads,
“No person shall be arrested except according to procedure
established by law. Any person arrested shall be informed of the reason for his
arrest.”
As previously mentioned, in the case at hand the Kandaketiya
Police had received a 119 message (Police Emergency contact) at 8.55 pm stating
that seven persons have entered the Bogahatenna forest reserve at Katawatte and
were engaged in treasure hunting. It was on this lead that the Police arrested
the deceased and other Petitioners.
As per the 1st- 3rd,5th
and 6th Respondents the reason for the arrest was their presence in
the forest coupled up with the absence of a valid explanation, despite the
other Petitioners stating their intention to purchase the three-wheeler.
However, as per the report presented by the Archeological Department, the area
in question has no archeological value and no mining had taken place in the
said area.
As per the above evidence the reason for the arrest in itself
is an unjustified allegation. In addition to the reason for the arrest, the
lawfulness of the manner in which the arrest was conducted is questionable. As
discussed under Article 11, When the deceased and the Petitioners were brought
to the Police station they were severely injured, with the deceased more so
injured than the others.
Further, according to the statements of the other Petitioners
the 6th Respondent had continuously intimidated and caused fear of
injury during and after the arrest. Such conduct by the said Respondents only
prove the lack of ethical and moral value which should be instilled in such
peace keeping officers. As highlighted by Dr. Shirani Bandaranayake in Bandula
Samarasekera V. Vijitha Alwis (supra),
‘…. it would be necessary to have the trust and respect of
the public. It is not easy to command that from the public and in order to earn
such trust and respect, the police’ officers must possess a higher standard of
moral and ethical values than that is expected from an average person. ‘
Accordingly, it is acts such as this that depreciate the
title of police officers in the minds of the public. And considering all the
above factors it is evident that the 1st -
6th Respondents have violated Article 13 (1) in the process of
the arrest.
Further, as per Article 13 (2) of the Constitution,
“Every person held in custody, detained or otherwise deprived
of personal liberty shall be brought before the judge of the nearest competent
court according to procedure established by law and shall not be further held
in custody, detained or deprived of personal liberty except upon and in terms
of the order of such judge made in accordance with procedure established by
law”. Procedure established by law in the current circumstance
would be Sections 65 of the Police Ordinance No. 16 of 1865.
‘Every person taken into custody by any police officer
without warrant (except persons detained for the mere purpose of ascertaining
their name and residence) shall forthwith be delivered into the custody of the
officer in charge of a station in order that such person may be secured
until he can be brought before a Magistrate to be dealt with according to
law, or may give bail for his appearance before a Magistrate, if the officer in
charge shall deem it prudent to take bail as hereinafter mentioned:
Provided always that where bail is not taken, the prisoner
shall be brought before a Magistrate within twenty-four hours, unless
circumstances render delay unavoidable.’ (Emphasis Added)
In the case at hand the deceased and the Petitioners were
brought to the Kandaketiya police station late night on the 07th
of May 2014 and was taken to the Magistrate Court of Passara
on the 8th of May 2014 at around 12.45 pm. Accordingly, the deceased and
the Petitioners were presented to the magistrate within 24 hours of the arrest.
However, it is the duty of the officers to secure the
person till he/she is been presented to the Magistrate. Securing would mean,
not the mere ensuring of the detainment of the person but also ensuring the
person is in good health and free from unlawful actions.
As per the Petitioner when she reached the Kandaketiya police
early morning on the 8th of May, her son had a severe chest pain following the assault
by the 1st – 6th Respondents. The Petitioner had then requested the reserve
officer to admit him to the hospital. However, he had stated that nothing could
be done as there were no one else at the station and to come in the morning.
The deceased was not taken to the hospital even by 7.30 am, but after the
request of the Petitioner they were taken to the DMO at around 8.30 am. The
Petitioners further claim that the DMO who is the 8th
Respondent to the case, did not inquire about any assault or
apparent wounds but had merely inquired about their names and marital statuses
and had proceeded to fill the requisite documentation. Accordingly, it is
observed that the 8th Respondent had not fulfilled his obligation to the best of
his ability as he should have given more attention to the health of the
deceased and the other Petitioners.
After being presented to the Magistrate the deceased and the
Petitioners were then admitted to the Badulla remand prison in the evening of
the same day.
According to the Petitioners, the deceased and the other
Petitioners had informed the Respondents of the Badulla remand police about the
assault, however, the 1st- 3rd and 5th and 6th Respondents deny the same and state that, had they been
informed they would have taken steps to present the Petitioners to the medical
authorities.
However, the question I encounter is even if the Petitioners
had not informed the Respondents, whether the injuries were not apparent to the
said officers. When the Petitioners were in custody of the Kandaketiya police
station the injuries of the deceased were said to be very severe and even the
Respondents seemed to have noticed the same as the deceased and other
Petitioners were presented to the DMO (even though this was after the request
made by the Petitioner). Further as per the PMR there were visible injuries on
the deceased. Accordingly, by this observation did the Police officers at the
time not recognize their duty to present the deceased to medical attention?
In light of the above facts, I must also note the claim made
by the Petitioners stating that the Magistrate did not provide the lawyer of
the Petitioner to present her case as she had been constantly interrupted by
the Respondents. Following which the Magistrate in the case had proceeded to
remand the deceased and the other Petitioners for 14 days. As per the records brought
before this court it is evident that the deceased and the Petitioners indeed
were innocent and were not in good health following the torture inflicted.
Accordingly, I observe that the Magistrate in the case should have exercised
his/her due diligence in order to approach the situation in a better manner.
In considering the provision on Health of Prisoners under the
Prisons Ordinance no. 16 of 1877, Section 66 reads,
‘ The names of prisoners desiring to see the medical officer or
appearing out of health in mind or body shall be reported by the officer
attending them to the jailer; and the jailer shall without delay call
the attention of the medical officer to any prisoner desiring to see him, who
is ill, whose state of mind or body appears to require attention and shall
carry into effect the medical officer’s written recommendations respecting
alterations of the discipline or treatment of such prisoner’.
(Emphasis Added)
Accordingly, the section states ‘prisoners desiring
medical attention or appearing out of health in mind or body shall be reported.’
In the current case considering the severity of the injuries, the
Respondents too had this duty. Even if the Petitioners did not request such
attention the Respondents had a duty to do the same.
Further Section 43 of the Prisons Ordinance reads,
‘Every criminal prisoner shall also, as soon as convenient
after admission, be examined by the medical officer who shall into a book to be
kept by the jailer a record of the state of the prisoner’s health and any
observations which the medical officer thinks fit to add.’
Accordingly, the prison officers have a mandatory obligation
to examine the prisoners as soon as convenient. In observing the phrase ‘as
soon as convenient’ we will look at the circumstance surrounding the incident.
Considering that the deceased was subject to significant assault and there were
apparent wounds on the deceased the prison officers had an obligation to refer
the deceased to medical attention immediately after admission. Especially considering
that the Provincial General Hospital in Badulla is in close proximity to the
Badulla Prison, external or inhouse medical attention could have been provided.
As per the records submitted to the court the deceased and
other Petitioners were admitted to the Badulla remand prison in the evening of
8th of May 2014. On the following day at 5.30 am the deceased was
said to be in very critical condition, however the deceased was taken to the
hospital only after the brother of the deceased had screamed for help. As per
the PMR the death has occurred at 6.00 am on the 9th
of May 2014. Further, it was after the death of the deceased,
the other Petitioners were taken to the Judicial Medical Officer.
As per the PMR of the deceased, early medical attention could
have saved the life of the deceased. While the prison officers could have acted
more responsibly in this regard, I find that there is no violation of Article
13 (2) of the Constitution considering that its’ essence has been satisfied as
the deceased and the other Petitioners were brought before the Magistrate
within twenty-four hours of the arrest.
Alleged infringement of Article 12(1) of the Constitution
Article 12 (1) of the Constitution reads,
“All persons are equal before the law and are entitled to the
equal protection of the law”
As per H.N.J. Perera CJ in SC FR Application no. 351/2018
Supreme Court minutes dated 13th December
2018, Article 12 (1) of our Constitution offers all persons
protection against arbitrary and mala fide exercise of power and guarantees
natural justice and legitimate expectations. Accordingly, the Article ensures
that every citizen is guaranteed equal protection as a ‘person’ despite how or
what another may consider him/her to be. In the situation at hand, even though
the deceased and the other Petitioners were arrested due to an allegation,
(which was later proved to be false) the Respondents did not have any right to
use the opportunity to assault them or to treat them in a degrading manner for
the simple reason that, no person should be treated in such manner. In fact,
the very existence of Article 12 (1) of the Constitution ensures that such
conduct is contrary to the law of the country.
Considering the above matters, the 1st–
6th Respondents have violated equal treatment and equal
protection that ought to be given to an ordinary person of this country, hence
have violated Article 12 (1) of the Constitution.
The final question to be dealt by this court is whether the
state including the higher authorities and other senior officers surrounding
the actions that took place;7th-14th
Respondents should be held liable for the direct violation of
the Fundamental Rights by the 1st– 6th
Respondents by virtue of State Liability.
The principle of State Liability has been discussed in this
court in previous instances including the two possible branches of assessing
the same. The first being the liability of the state by way of the law
governing vicarious liability under the law of delict and secondly, the
liability under the sui generis created by the Constitution under public law,
out of which the second approach has been favoured.
The nature of liability imposed was highlighted by Lord
Diplock in the case Maharaj V. The Attorney-General of Trinidad and Tobago,
No. 2 [1979] A.C. 385 as follows,
“This is not vicarious liability it is a liability of the
State itself. It is not a liability in tort at all it is a liability in the
public law of the State which has been newly created”.
In the case Lord Diplock emphasised that this was a new
liability in Public law created by the Constitution of Trinidad and Tobago and
should not be viewed in the perspective of any existing bases of liability. In
the case Ganeshanathan V. Vivienne Goonewardene and Others (1984) 1 Sri LR
319 Soza J, while commenting on the above stated that the Sri Lankan
Constitution too has created this liability under the public law.
Accordingly, it is well established that the principle of
state liability in Fundamental Right matters is dealt with to hold the state liable
for acts committed by the executive and administrative directly rather than
considering the concept of vicarious liability under the law of delict.
In the case Erandaka And Another V. Halwela,
Officer-in-Charge, Police Station, Hakmana and Others [2004] 1 Sri LR 268 the
state was said to be responsible for the violation of the Petitioners’
Fundamental Rights as it was proved that the Petitioners sustained the injuries
while in the remanded prison.
However, contrary to the above the assault in the current
situation; the offence was committed prior to the deceased and the other
Petitioners were brought to the custody of the station.
It is illogical to hold the state responsible for acts
committed by such officers in pursuing their personal vengeance without the
authorization or knowledge of the persons in authority. This was also
highlighted in Goonewardene V. Perera and Others [1983] 1 Sri LR 305 (Soza,
J.) as follows,
“The State no doubt cannot be made liable for such
infringements as may be committed in the course of the personal pursuits of a
public officer of to pay off his personal grudges. But infringements of
Fundamental Rights committed under colour of office by public officers must
result in liability being cast on the State. “
In light of the above, the phrase ‘colour of office’ is not
limited to whether or not the officers were in official uniform but includes
factors surrounding the conduct of the officers and the authority given to
them. In the instant case the acts committed by the errant officers were not
committed under the supervision or the orders of a senior officer. The state
has not in any manner approved nor shall approve such conduct. In considering
the facts laid before this court the acts of the officers were conducted in their
personal capacity and not in the ‘colour of office’. Further I find that the
state in the current situation has given its fullest corporation to serve
justice to the Petitioner.
In perusing the judgment by Sharvananda J (as he was then) in
Velmurugu V. AG [1981] 1 SLR 406 , the learned judge has highlighted the
inherent difficulties in proving a case of torture by the Police. One such
difficulty highlighted by the learned judge is quoted below,
‘…where allegations of torture or ill treatment are made the
authorities whether the police or armed services or the ministries concerned
must inevitably feel they have a collective reputation to defend. In
consequence there may be reluctance of higher authorities to admit or allow
inquires to be made into facts which might show that the allegations are
true." (Emphasis Added)
The above situation should be distinguished from the instant
case, Contrary to the above possibility, in the case at hand the higher
authorities have taken action against the 1st –
6th Respondents who were directly linked to the torture.
When the conduct of the errant officers were brought to the
attention of the senior officers, the relevant inquires and investigations were
conducted and the errant officers; 1st-
6th Respondents were indicted for several offences including
murder. The matter was referred to the High Court of Badulla under Case
No. 01/2015 and the said Respondents have been found guilty of the offences
including the murder of the deceased, being members of an unlawful assembly and
for causing hurt to the others arrested and was sentenced to death by the
judgement dated 9th January 2017. It must be placed on record that the above
decision of the High Court of Badulla did in no way influence my decision in
regard to the violation of Fundamental Rights of the deceased and the other
Petitioners. The case presented before this court has been evaluated
independently from the above, assessing the facts, circumstances and evidence
presented before this court.
Accordingly, the state has fulfilled its obligation and in
this circumstance the state cannot be held liable for the conduct of the errant
officers. I am convinced that the state has taken prompt action against 1st
– 6th Respondents hence the state is not liable for the violation of
Fundamental Rights.
The police force is one of the key peace keeping forces of
the country. Therefore, it’s dignity and esteem ought to be protected at all
times. In order to achieve the same, it is imperative that the officers conduct
themselves with great respect to their office and the people of this nation
while being accountable and transparent about their actions.
Decision
Considering the aforementioned facts and circumstances, I
hold that the 1st Respondent; D.M. Aberathna, 2nd Respondent;
D.P.K. Gamage, 3rd Respondent; S.M.R.P. Kumara, 4th Respondent;
S.J.M. Jayasundara, 5th Respondent; D.M. Wijerathna and 6th
Respondent; R.P. Somarathne have violated the Fundamental
Rights of the deceased, which is guaranteed under Article 11 ,12 (1), 13(1) of
the Constitution. The Petitioner is a poor village woman who was expecting to
rest her life with her son whose unfortunate demise caused her shock, loss of
care and support.
For the above reasons I order each of the 1st
-6th Respondents to pay compensation of Fifty Thousand Rupees (Rs.
50,000/=) and litigation costs of Ten Thousand Rupees (Rs.10,000/=) to the
Petitioner. Considering the facts of this case, I hold that the state has
fulfilled its obligation, therefore, the state is not responsible for the
violation. In regard to the adjoining cases,
In SC/FR/182/2014 I hold that the 1st
Respondent; D.M. Aberathna, 2nd Respondent;
D.P.K. Gamage, 3rd Respondent; S.M.R.P. Kumara, 4th Respondent;
S.J.M. Jayasundara, 5th Respondent; D.M. Wijerathna and 6th
Respondent; R.P. Somarathne have violated the Fundamental
Rights of the Petitioner; Gamini Hewanayake guaranteed under Article 11 ,12
(1), 13(1) of the Constitution and I order to pay Ten Thousand Rupees
(10,000/=) each as compensation and Five Thousand Rupees (Rs.5000/=) each as
litigation costs to the Petitioner.
In SC/FR/183/2014 I hold that the 1st
Respondent; D.M. Aberathna , 2nd Respondent;
D.P.K. Gamage, 3rd Respondent; S.M.R.P. Kumara, 4th Respondent;
S.J.M. Jayasundara, 5th Respondent; D.M. Wijerathna and 6th
Respondent; R.P. Somarathne have violated the Fundamental
Rights of the Petitioner; Peruma Hewa Kasun Wiraj Madumadawa guaranteed under
Article 11 ,12 (1), 13(1) of the Constitution and I order to pay Ten Thousand
Rupees (10,000/=) each as compensation and Five Thousand Rupees (Rs.5000/=)
each as litigation costs to the Petitioner.
In SC/FR/184/2014 I hold that the 1st
Respondent; D.M. Aberathna , 2nd Respondent;
D.P.K. Gamage, 3rd Respondent; S.M.R.P. Kumara, 4th Respondent;
S.J.M. Jayasundara, 5th Respondent; D.M. Wijerathna and 6th
Respondent; R.P. Somarathne have violated the Fundamental
Rights of the Petitioner; R.
A. Wijeratne guaranteed under Article 11 ,12 (1), 13(1) of the
Constitution and I order to pay Ten Thousand Rupees (10,000/=) each as
compensation and Five Thousand Rupees (Rs.5000/=) each as litigation costs to
the Petitioner.
In SC/FR/185/2014 I hold that the 1st
Respondent; D.M. Aberathna , 2nd Respondent;
D.P.K. Gamage, 3rd Respondent; S.M.R.P. Kumara, 4th Respondent;
S.J.M. Jayasundara, 5th Respondent; D.M. Wijerathna and 6th
Respondent; R.P. Somarathne have violated the Fundamental
Rights of the Petitioner; Kanda Uda Kularathne guaranteed under Article 11 ,12
(1), 13(1) of the Constitution and I order to pay Ten Thousand Rupees
(10,000/=) each as compensation and Five Thousand Rupees (Rs.5000/=) each as
litigation costs to the Petitioner.
Application allowed.
JUDGE OF THE SUPREME COURT
SISIRA J. DE ABREW, J.
I agree
JUDGE OF THE SUPREME COURT
MURDU N. B. FERNANDO, PC, J.
I agree
JUDGE
OF THE SUPREME COURT
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