037-SLLR-SLLR-1990-V-1-SAMANTHILAKA-v.-ERNEST-PERERA-AND-OTHERS.pdf
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SAMANTHILAKA
v.ERNEST PERERA AND OTHERS
SUPREME COURT.
H. A. G. DE SILVA. J.. AMERASINGHE, J. AND DHEERARATNE, J.
S. C. APPLICATION No. 65/88,
JUNE 11. 1990.
Fundamental Rights – Infringement ol the fundamental right o! freedom from arrest, exceptaccording to procedure established by law ■ Article 13(1) and (2) ol the Constitution – Cruel,inhuman or degrading treatment or punishment – Article 11 of the Constitution -Burden olproof – Nature of the jurisdiction exercised in terms of Anicle 126 of the Constitution -Necessary parties – Failure to name respondents responsible for the infringement,
The court will look lor a high degree of probability in deciding which ol the facts allegedhave been established. But the court will not place an undue burden on a petitioner in hisquest for access to justice. Financial constraints and the obstructions encountered inprocuring material will be taken into account
In the exercise of its jurisdiction in terms of Article 126 of the Constitution, the Court isdetermining whether these rights of individuals which have been declared and guaranteedby the Constitution have been denied by a failure on the part of the State to discharge itscomplementary obligations. The State necessarily acts through its servants, agencies andinstitutions. But it is the liability of the State and not that of its servants, agents or institutionsthat is in issue. It is not a question of vicarious liability. It is the liability of the State itself.An investigation of the personal conduct of officials is not the function of the Court in thematter of an application for relief and redress under Article 126 of the Constitution.
The person who has infringed or is likely to infringe a fundamental or language right isnot a necessary party in the sense in which that phrase is used in connection with ordinarycivil litigation. The failure to make a person who is alleged to have violated or is likely toviolate a fundamental or language right a respondent is not a fatal defect. Indeed, such isthe nature of the obligation under Rule 65 that the failure of a petitioner to personally, asdistinguished from officially, identify the person violating his fundamental rights (andpersonally, therefore, being unable to name such person in his petition), or that he wasmistaken (with the result that a wrong person is named as respondent) will not stand in theway of a petitioner's application for relief if the court is satisfied that a violation of afundamental or language right had been occasioned by executive or administrative action
The fact that the second respondent had been wrongly added or that the three policeofficers named in the petition have not been named as respondents is of no consequenceif infringement by executive or administrative action is established.
Cases referred to:
S. Wijeratne and Another v. N. Wijeratne (1971) 74 NLR 193.
Saman v. Leeladasa and Another j 1989] 1 Sri LR I. 33, 39.
Ganeshanathan v. Vivienne Goonewardene and Another [1984) 1 Sri LR 319, 330331, 352.
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Samanthilaka v. Ernest Perera and Others
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A. K Velmurugu v. The Attorney -General 1 FRO 426, 440.
Vivienne Goonewardene v. Hector Perera and Others 2 FRO 426, 440.
M. K. W.AIwis v. Quintus Raymond and Others .SC Application No. 145of 1987-S. C. Minutes of 21.7.1989.
Subramaniam Ragunathan v. M. Thuraisingham, and the Attorney-General S. C.Application 158 of 1988 – S. C. Minutes of 23.8.1989.
Mariadas Raj v. Attorney-General and Others [1982] FRD 397, 404, 406.
Katunayakage Damesius Perera and Another v. R. Premadasa and Others (1979) 1FRD 70, 72.
Mrs. W. M. K. de Silva v. P. Senaratne [1989] 2 Sri LR 393.
APPLICATION complaining ol infringement of fundamental rights.
Sanath Jayatilake with Jayantha Wewelwala for petitioner.
Mervyn Samarakoon SSC lor 1st and 4th respondents.
Lakshman Ranasinghe for 2nd and 3rd respondents.
Cur. adv. vult.
June 29. 1990.
AMERASINGHE, J.
This is an application under Article 126 of the Constitution in whichGamaralalage Samanthilake alleged that her rights under Articles 11,12,13, and 14 of the Constitution were violated by certain police officers.Leave to proceed with her petition was, however, limited by the Court toArticles 11, 13, (1) and 13 (2) of the Constitution.
The violations complained of by the petitioner concerned her funda-mental right of freedom from arrest, except according to procedureestablished by law [Article 13 (1)]; her right to personal liberty andfreedom from detention or custody, except after being produced beforea judge of the nearest competent court, upon and in terms of an order ofsuch judge made in accordance with procedure established by law[Article 13 (2)]; and the right to be free from torture and cruel, inhuman ordegrading treatment or punishment. [Article 11].
Being serious allegations of misconduct on the part of an agent of theState – the Police -1 looked with caution for a high degree of probabilityin deciding which of the facts alleged had been established. At the sametime, I was anxious to ensure that, in her endeavour to have access tojustice, an undue burden was not imposed upon the petitioner. She wasa sixteen year old student, with limited financial resources belonging as
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she did to a family whose members depended upon the collection ofcashew nuts for their existence. Moreover, having been subject tovexation at the hands of the colleagues of those officers whom she mighthave called upon for further evidence in support of her application, shewas more likely to have found obstruction rather than assistance in hersearch for additional material.
Upon a careful consideration of the affidavits and the helpful analysisof the evidence therein contained by learned Counsel for the applicantand the respondents; and upon an examination of the Medico-LegalReport submitted to this Court, the following facts have emerged:-
On January 26, 1988, on hearing that her brother, SenerathShantha, had been taken into custody, after making inquiries atvarious police stations, she found him at the Gampaha Police Stationwith signs of physical abuse. On February 12, 1988, another brotherof the petitioner, Sugalh Kamalasiri, was arrested and detained at theGampaha Police Station. When, after several unsuccessful attemptsto see Sugath Kamalasiri, she and her mother did see him on February14, 1988, the petitioner observed that his face and legs were swollenand that her brother was hardly able to speak. The petitioner and hermother were told by some police officers at the Police Station that thiswas the result of his not giving correct information. They were askedto advice him to disclose all the information he had. The applicantresponded by stating that those who had laid violent hands on herbrother should be prosecuted. On subsequent visits, she had beenrequested by the Police to persuade her brothers to disclose theinformation they supposed the brothers to have had. Senerath Shan-tha was then transferred to the Peliyagoda Police Station.
The Peliyagoda Police Station does not thereafter figure in the ap-plicant's complaint and I am of the opinion that there are no groundswhatsoever for alleging that the second respondent, the Officer-in-Charge of the Peliyagoda Police Station, was guilty of any improperconduct towards the applicant.
The conduct of certain officers of the Gampaha Police Station,however, gives the petitioner sufficient cause for complaint.
On March 6,1988, as stated by the Inspector-General of Police inhis affidavit, a "Police Party” visited the home of the Petitioner. TheInspector-General of Police in his affidavit identifies and names two
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Police Officers who were members of the "Police Party". One was aPolice Constable (hereinafter referred to as the Police Constable) anda Sub-Inspector of Police who led the “Party”. Both these officers werenamed and identified by the Petitioner. The Inspector-General ofPolice states that there was information that the Petitioner knew themovements of Sanjeeva, alias Jayadeva Kankanamalage Jayasuriya,who was wanted in connection with a case of murder and that thePolice questioned her in this regard during the visit of the Police Party.The Inspector -General of Police in his affidavit admits that thePetitioner’s brother, Senerath Shantha, had been arrested by the armyin connection with the unlawful possession of firearms and while “hewas running away after setting fire to a boutique which sells LakehouseNewspapers.” In the circumstances, the Petitioner’s assertion thatwhat she was questioned about was the alleged subversive activitiesof her brothers and their friends appears to be more probable than theaverment that the investigation related to a murder. When she deniedthat they were concerned with any political activities, the Police officersexamined her school books and departed after one of the PoliceOfficers had placed a gun on her chest and threatened to kill herunlessshe spoke the truth.
On March 9, 1988, according to the affidavit of the Inspector-General of Police, "a Police party” had gone again to the petitioner'shouse. This, he says, was to question her with regard to Jayasuriyawho, they believed, had been visiting the Petitioner. Although therespondents deny it, it appears from a consideration of the evidencein the affidavits submitted by the petitioner to be more probable that thePolice Party took the petitioner to the Police Station in their vehicle onthe occasion of their second visit. When the petitioner’s mother hadprotested that she could not permit her young daughter to go alone,she was allowed to accompany her, but only until they had reached thePolice Station, at which stage the mother was put out of the vehicle andleft to hear her daughter wailing in the distance.
The petitioner who had been taken into the Police Station wasinterrogated about the alleged subversive activities of her brothers andtheir friends and she was repeatedly assaulted with clubs.
Counsel lor the respondents submitted that although the petitionerhad, in her affidavit, stated that she had been assaulted with clubs, this
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was contradicted by her evidence contained in the Medico LegalReport where she had given a history ot assault with an iron rod anda broom stick. I see no difficulty here, for any staff used as a weapon,including an iron rod or a broom stick, for the purposes of this case,could sufficiently and appropriately be described as a "club."
The Petitioner was then compelled to witness a brutal assault on herbrother, Sugath Kamalasiri, after his hands and legs had been tiedtogether and as he lay suspended from an iron bar supported by twotables. More interrogation and assaults on both the petitioner and herbrother followed until the officers decided to leave, the Police Con-stable announcing as he retired that The rest" was left for the morrow.The petitioner was then moved to a cell and asked to sleep on the floor.A female police officer who was placed in charge of the petitioner wasordered not to give her any food and to prevent her parents visiting her.
On March 10 the Police Constable and other officers, in keepingwith the promise of the Police Constable, returned to interrogate thepetitioner. The Police Constable slapped her and threatened her.When he tried to seduce her, she cried helplessly. Her parents hadattempted to see her on that day, but were denied access to her.Instead of the comfort of seeing her parents, she was further interro-gated and shown her brother, Sugath Kamalasiri, in pain, prostrate onthe floor after he had been assaulted. The Police Constable had on thatoccasion pointed to her brother and said: "See what has happened toyour brother. T ell the truth at least now." All the Petitioner could do, shesays, was to weep “silently on seeing my brother in pain."
On March 11 the Police Constable took the Petitioner home andhanded her over to her father.
On March 12, at the request of the Petitioner's mother, a neighbour,H.D. Kasthuriarachchi, took the Petitioner to the General Hospital,Colombo where the Petitioner was examined by several doctors. TheMedico-Legal Report issued by the Assistant Judicial Medical Officerunder caption “Short History Given by Patient" says: “Assault by Policein Police Station on 09.03.88 night with broom stick and iron rod."
The Assistant Judicial Medical Officer describes seven contusionson the arms, left scapula, lower back across the midline, buttocks andleft thigh of the Petitioner.
Samanthilaka v. Ernest Perera and Others (Amerasinghe, J.)
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SC
The police officers had called at the Petitioner’s residence on March27 to take her for further questioning, but, it seems, without success.According to learned Counsel for the petitioner, she had by then, forreasons that are not difficult to understand, abandoned her usualhome.
So much for the facts.
There was no dispute with regard to the law or its application to thefacts of this case except with regard to one matter of some importance.Learned Senior State Counsel submitted that the failure of the Petitionerto add as respondents the Police Officers whom she had identified andnamed in her Petition and Affidavit, rendered herpetition fatally defective,for those police officers were "necessary parties.” In support of this view,the learned Senior State Counsel relied solely upon the decision of theSupreme Court in S. Wijeratne and Another v. N. Wijeratne (1). Thatdecision was concerned with an appeal from a District Court in an actionfor the partition of a land. One of the defendants had not been made aparty to the appeal and the Supreme Court upheld a preliminary objectionto the hearing of the appeal on the ground that the failure to add anecessary party was a defect which required the Court to dismiss theappeal which, therefore, had not been properly constituted.
Respondents to an ordinary civil appeal are adversarial parties whosecompeting claims are determined by the Court and, understandably, interms of section 756 of the Civil Procedure Code notice of appeal oughtto be furnished to them.
Respondents to a petition for relief or redress in respect of theinfringement or imminent infringement of a fundamental right or languageright stand on a different footing. The Court is not, in such a matter,adjudicating upon the disputed rights and conflicting interests of thepetitioner and respondents. It is, in such a matter, exercising its jurisdic-tion in terms of Article 126 of the Constitution to determine whether thereis an infringement or imminent infringement by executive or administra-tive action of any fundamental right or language right declared andrecognized by Chapter III or Chapter IV of the Constitution. The decisionsof this Court make it abundantly clear that in the exercise of its jurisdictionin terms of Article 126 of the Constitution, the Court is determiningwhether those rights of individuals which have been declared and
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guaranteed by the Constitution have been denied by a failure on the partof the State to discharge its complementary obligations. (Saman v.Leeladasa and Another (2)). The State, necessarily, acts through itsservants, agencies and institutions: But it is the liability of the State andnot that of its servants, agents or institutions that is in issue. It is not aquestion of vicarious liability. It is the liability of the State itself. (SeeSaman's Case, supra, especially at pp. 27-40).
Rule 65 (1) of the Court made under Article 136 of the Constitution (seeGazette Extraordinary of 8.11.78) provides that—
“Where any person applies to the Supreme Court by a petition inwriting for relief or redress in respect of the infringement or of animminent infringement of any fundamental right or language right byexecutive or administrative action in terms of Article 126 (2) of theConstitution, he shall –
(3)
name in his petition the Attorney -General and any person orpersons who he alleges have infringed or are about to infringe hisfundamental or language rights as the respondents.
(0
One purpose of naming the officials concerned is to identify those whocould help the Court in the exercise of its inquisitorial functions inclarifying disputed facts. Another is to facilitate proof that the act inquestion was an executive or administrative act. The given title ordescription of a state officer or other person could be so indicative as toreduce the petitioner's burden of adducing evidence to establish that theact in question was an executive or administrative action. For instance,to say that Mr.X the respondent was a Police Officer or The Secretary ofa Ministry might provide a clue as to the capacity in which Mr. X acted. It
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is in no way conclusive of the matter, for it may be established in thecircumstances of a case that Mr. X, whatever his designation or title mayhave been, in doing the act complained of, was not, after all, exercisingan executive or administrative action. It may have been a purely privateact or one which was in no way connected with the performance of hisofficial duties. There would then be no executive or administrative actionand the State would, therefore, not be liable, (See Saman v. Leeladasaand Another (2)).
It has been said, that another purpose of Rule 65 is to give an officernamed as a respondent, the opportunity of defending himself. (See per'Ranasinghe, J. in Ganeshanathan v. Vivienne Goonewardene and ThreeOthers, (3). This is an opportunity primarily for defending his conductwith the object of exculpating the State and incidentally exoneratinghimself personally. However, an investigation of the personal conduct ofofficials is not, in my view, the function of this Court in the matter of anapplication for relief and redress under Article 126 of the Constitution.That is a matter to which the attention of the appropriate persons may, ifthe circumstances warrant, be directed by this Court for such action as itmay deem to be necessary-This has been the practice of this Court in thepast. (e.g. see A.K. Velmurugu v. The Attorney-General and Another
,Vivienne Goonewardene v. Hector Perera and Others (5), Cf.M.K. W.AIwis v. Quintus Raymond and Others (6) and SubramaniamRagunathan v. M. Thuraisingham and The Attorney-General (7). And soI propose todo inthiscase, confirming, with respect, the customary actionof the Supreme Court in this regard. In so doing I am not condemninganyone but assisting the Government to become aware of violations sothat, through appropriate measures, it could restore and ensure therespect for fundamental rights which it expects of its servants, agents andinstitutions. The measures, with deterrence and prevention in view, mayinclude the punishment of transgressors, filling gaps in the laws orprocedures and strengthening protecting institutions.
The person who has infringed or is likely to infringe a fundamental orlanguage right is not a necessary party in the sense in which that phraseis used in connection with ordinary civil litigation. The failure to make aperson who is alleged to have violated or is likely to violate a fundamentalor language right a respondent in a petition for relief under Article 126 ofthe Constitution is not, in my view, a fatal defect. Indeed, such is thenature of the obligation under Rule 65 that the failure of a petitioner to
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personally, as distinguished from officially, identify the person violatinghis fundamental rights, (and presumably, therefore, being unable topersonally, name such person in his petition), or that he was mistaken(with the result that a wrong person is named as a respondent) will notstand in the way of a petitioner's application for relief if the Court issatisfied that a violation of a fundamental or language right had beenoccasioned by executive or administrative action. (See Mariadas Raj v.Attorney-General and Others (8),. at pp. 404,405, per Sharvananda, J.atpp. 404, 405, Ganeshanathan v.Vivienne Goonewardene and ThreeOthers (3) per Samarakoon, C.J. at pp. 330 -331 .See also KatunayakageDamesius Perera and Another v.R.Premadasa and Others (9), (1979)Fundamental Rights Decisions 70 at p.72; Saman v. Leeladasa andAnother (2).
In the case before us, the fact that the second Respondent has beenwrongly added and the fact that the three police officers named by thePetitioner in her Petition have not been mentioned as Respondents areof no consequence with regard to the question of establishing executiveor administrative action, since I am of the view that there is sufficientevidence to show that the infringement of the Petitioner's fundamentalrights was caused by Police officers acting in the course of their dutiesunder colour of office.
Nor was the State placed at any disadvantage by the Petitioner’sfailure to name as Respondents the Police officers she identified. TheState could have submitted the affidavits of those persons if, as thelearned Senior State Counsel suggested, their evidence was important.
Naturally, if their information was to be on the sparse lines of those ofthe second and third Respondents, such affidavits may have beenadvisedly omitted, adding as they would but little to the weight, andnothing at all to the quality of the evidence already adduced on behallf ofthe State. As for the opportunity for the officers who may have wished tohaveexplainedtheir personalconduct, they would. I hope, be given everyopportunity to do so when their conduct, personally, rather than theirconduct as agents of the State, is called in question in another place andat another time by other authorities. For the reasons stated in myjudgment I make order as follows
I hold that Gamaralalage Samanthilaka, the Petitioner in thiscase, was arrested by the Police and held in custody and
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detained and deprived of her personal liberty by the Policewithout being produced before a Judge and otherwise thanaccording to procedure established by law, and, consequently,that the said Petitioner is entitled to a declaration that the Statehas acted in violation of her rights under Article 13(1) and (2) ofthe Constitution.
I further hold that the said Gamaralalage Samanthilaka wassubjected by the Police to such severe physical and mental painas amounted in law (Cf. Mrs W.M.K.de Silva v. P. Senaratne eta I (10) to cruel, inhuman and degrading treatment and punish-ment and, consequently, that the said Petitioner is entitled to adeclaration that the State has acted in violation of her rightsunder Article 11 of the Constitution.
The State shall be liable to pay a sum of Rs.25,000 to thePetitioner by way of compensation and Rs. 2,500 as costs.
The Inspector-General of Police, who in paragraph 9 of hisAffidavit has informed the Court that he has “given instructions to
' all the Police Stations concerning the manner in which a suspecttaken into custody should be treated by the Police officers and ifit transpires that these instructions have been violated that dis-ciplinary action will be taken against them, and also if there isevidence against any officer steps will be taken to prosecute himin court”, shall give effect to the said undertaking within threemonths of this Order.
For the purpose of assisting the Inspector- General of Police tocomply with the direction contained in paragraph (4) above, theRegistrar of The Supreme Court shall forward to the Inspector-General of Police a certified copy of this judgment together withcertified copies of the Petition and Affidavits filed in this case.
H.A.G. DE SILVA, J. -1 agree.
R.N.M. DHEERARATNE, J -1 agree.
Application allowed.
Compensation ordered.