011-SLLR-SLLR-2003-V-2-DESHAPRIYA-v.-CAPTAIN-WEERAKOON-COMMANDING-OFFICER-SRI-LANKA-NAVY-SHIP-G.pdf
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Deshapriya v Captain Weerakoon, Commanding Officer,
Sri Lanka Naw Ship “Gemunu" and others (Fernando, J.)
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DESHAPRIYA
v.CAPTAIN WEERAKOON, COMMANDING OFFICER,
SRI LANKA NAVY SHIP “GEMUNU” AND OTHERS
SUPREME COURTFERNANDO, J.
YAPA, J., AND WIGNESWARAN, J.
SC NO. 42/2002 (FR)
21ST JULY, 2003
Fundamental Rights – Constitution, Article 11 – Personal liability of theCommander for acts of subordinate officers.
The petitioner was serving in the Navy Ship "GEMUNU'. When he was due togo on transfer on 1.9.2001 a pistol was found missing. On the instructions ofthe 1st respondent Commanding Officer, the petitioner was kept under closearrest (confinement) from 4.9.2001 on suspicion for the loss of the pistol. Hewas interrogated between 7th and 9th September. He was kept in custody till8.1.2002.
In the application filed on 16.1.2002, the petitioner was granted leave to pro-ceed under Article 11. He told the JMO who examined him inter alia, thefollowing.
He was handcuffed and suspended from the rafter by the wrists.
A "S-Lon” pipe and a piece of barbed were introduced to his rectum.Chillie powder was also introduced through the pipe.
Burnt with a hot iron
Assaulted on elbows, shoulders, knees, ankles with battons.
Medical opinion supported the history given by the petitioner.
On 9.2.2002 the petitioner was found guilty of several charges and a jail sen-tence was imposed. He was also discharged from the Navy with disgrace. Awrit application is pending before the Court of Appeal.
Held :
The petitioner was subjected to torture and to cruel and degrading treat-ment violative of Article 11.
The 1st, 4th, 5th, 6th and 7th respondents were responsible for theinfringement of Article 11.
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Sri Lanka Law Reports
[2003] 2 Sri L.R
On the question of 1st respondent’s liability, it is no defence for himto say that he was unaware of the alleged torture and no complaint wasmade to him.
Per Fernando, J.
“In the Forces, command is a sacred trust, and discipline is paramount. Hewas under a duty to take all reasonable steps to ensure that persons held incustody (like the petitioner) were treated humanely and in accordance with thelaw. That included monitoring the activities of his subordinates, particularlythose who had contact with detainees. The fact that the petitioner was beingheld in custody under his specific orders made his responsibility somewhatgreater,
APPLICATION for relief for infringement of fundamental rights.
Upul Kumarapperuma for petitioner.
Manohara de Silva, for 1 st and 2nd respondents
Nalinda Indatissa for 3rd to 7th respondents
Riyaz Hamza, State Counsel, for 8th and 9th respondents
Cur.adv.vult
August 8, 2003
FERNANDO, J.
The petitioner was a sailor in the Sri Lanka Navy. By his appli-cation dated 16.1.2002, he complained of the infringement of hisfundamental right under Article 11 whilst being detained in Navycustody.
The petitioner was serving in the Navy ship “Gemunu” atWelisara as officer in charge of the armoury. He was due to go ontransfer on 1.9.2001. On 18.8.2001, in the course of handing over,it transpired that a pistol was missing. On the instructions of the 1 strespondent, the Commanding Officer of the Navy ship “Gemunu” atWelisara, the petitioner was kept under “close arrest” from 4.9.2001on suspicion that he was responsible for the missing pistol. It was
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Deshapriya v Captain Weerakoon, Commanding Officer,
Sri Lanka Navy Ship "Gemunu" and others (Femando.J.)
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agreed that “close arrest” involved confinement. A preliminaryinvestigation was held, in the course of which the petitioner wasinterrogated between 7th and 9th September. He was kept in cus-tody till 8.1.2002 when a summary trial by a Board of Inquiry tookplace, and continued in Navy custody thereafter. On 9.2.2002 hewas found guilty of several charges and a jail sentence wasimposed. He was then transferred to the Welikada prison to servehis sentence. After serving his sentence,.on 29.4.2002 he was dis-charged from the Navy with disgrace. We were informed that a writ 20application was pending in the Court of Appeal.
This application was filed on 16.1.2002. On 1.2.2002 thisCourt directed that the petiioner be examined by the JudicialMedical Officer (“JMO”). That was done on 7.3.2002. The JMO’srecord of the petitioner’s history, as given by him, included the fol-lowing :
“Handcuffs were applied around the wrists and suspendedfrom a rafter by the wrists”;
“S-Lon pipe inserted into the rectum. A piece of barbed wirewas inserted though the pipe hole. Then the wire was moved 30around after the pipe was removed partially. Chilli powder wasalso introduced through the pipe”;
"Burned with a hot iron”; and
“Assaulted on elbows, shoulders, knees and ankles withbatons”.
I omit the many other allegations of sadistic treatment whichleaves no traces.
The JMO found scars on both wrists, consistent with hand-cuffs; a triangular scar on the back of the right shoulder (7cm x10cm x 9cm), the size, shape and nature of which were consistent 40with an injury caused by a hot iron; and a superficial linear obliquescar, 9cm long, on the inner aspect of the front of the left thigh, con-sistent with an injury caused by a barbed wire. He also noted thatthe petitioner “was in pain and walked bending the back”. He con-cluded that the ageing of the scars was not inconsistent with thehistory given by the patient.
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Leave to proceed was granted only in respect of the allegedinfringement of Article 11, but not of Articles 13(1) and 13(2).
It was submitted on behalf of the respondents that there wasuncertainty as to the precise time at which those injuries had beeninflicted. It was not suggested that the petitioner had sustainedinjuries either before or during, arrest. According to the JMO’sreport, the petitioner had stated that he had been arrested on
and kept in Navy custody till 8.2.2002, and that “duringthat period he was assaulted”. It was contended that the petitionerhad failed to be precise, and that this might refer to any time fromSeptember to early February. However, the JMO’s record cannotbe treated as if he was making a verbatim record of evidence givenin court. Elsewhere in the JMO’s report it is stated that theConsultant Orthopaedic Surgeon had noted “History of assaultSeptember 2001”. In his first affidavit the petitioner stated that hehad been assaulted while being questioned about the missing pis-tol, and that after being assaulted the 1st respondent obtained hissignature to several documents. The assault was therefore inSeptember, probably between the date of his arrest and the con-clusion of the preliminary investigation on 9.9.2001.
There is no doubt whatsoever that the petitioner had beensubjected to torture, and to cruel and degrading treatment, in viola-tion of Article 11, whilst in Navy custody.
Counsel for the petitioner submitted that the 4th to 7th respon-dents, together with others, were directly responsible for theinjuries, and that the 1st respondent, as the Commanding Officer,was also responsible for culpable inaction.
The 4th and 7th respondents claimed that during the periodthat these injuries were probably inflicted – i.e. between 2nd and 9thSeptember – they were serving elsewhere. The 4th respondentclaimed that he was away for the whole of September, while the 7threspondent claimed that it was only on 12.9.2001 that he was trans-ferred to the “Gemunu”. The 5th and 6th respondents have beenpositively identified by the petitioner, but they have categoricallydenied the allegations against them. The petitioner had no reasonfalsely to implicate any of the respondents, and while there is noreason to disbelieve the petitioner, it cannot be said that the seri-
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Deshapriya v Captain Weerakoon, Commanding Officer,
Sri Lanka Naw Ship “Gemunu” and others (Ferhando.J.)
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ous charges against those respondents personally have beenestablished with the high degree of proof necessary. A full inquiry isnecessary.
I turn now to the question of the 1st respondent’s liability.Learned Counsel on his behalf urged that there was no evidencethat he had participated in, authorised, or had knowledge of any actof torture or cruelty, and stressed that no one had complained to 90him about any such act. He contended that the 1st respondentwould not be liable for whatever his subordinates might have doneunless it was proved that he had knowledge thereof and neverthe-less refrained from taking remedial action.
The 1st respondent’s responsibility and liability is not restrict-ed to participation, authorisation, complicity and/or knowledge. Hisduties and responsibilities as the Commanding Officer were muchmore onerous. In the Forces, command is a sacred trust, and dis-cipline is paramount. He was under a duty to take all reasonablesteps to ensure that persons held in custody (like the petitioner) 100were treated humanely and in accordance with the law. That includ-ed monitoring the activities of his subordinates, particularly thosewho had contact with detainees. The fact that the petitioner wasbeing held in custody under his specific orders made his responsi-bility somewhat greater.
In his affidavit the 1st respondent merely denied participation,authorisation and complaints. He did not claim that he had takenany steps, either personally or through responsible subordinates, toensure that the petitioner was being treated as the law required.Such action would not only have prevented further ill-treatment, but nowould have ensured a speedy investigation of any misconduct aswell as medical treatment for the petitioner. It is not clear whetherthe petitioner did receive medical treatment. But that makes littledifference to the liability of the 1st respondent. If the petitioner didreceive medical treatment, then the 1 st respondent ought to haveknown that he had been ill-treated. If the petitioner did not receivemedical treatment for his injuries, the denial of medical treatmentwas itself inhuman treatment violative of Article 11, for which the 1strespondent shares responsibility.
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If indeed the 1st respondent really did not know how the peti- 120tioner was being treated, that was wilful ignorance due to want ofcare, and not a genuine lack of knowledge.
I hold that the petitioner's fundamental right under Article 11has been infringed by executive or administrative action whilst inNavy custody, and I award him a sum of Rs 150,000 as compen-sation and costs, of which Rs 130,000 shall be paid by the State,and Rs 20,000 by the 1st respondent personally, on or before
The Registrar is directed to forward copies of this judg-ment to the Attorney-General and to the Commander of the Navy toenable them to consider whether legal proceedings should be insti- 130tuted against the 1st, 4th, 5th, 6th and 7th respondents. TheCommander of the Navy is directed to issue directions and guide-lines designed to ensure that persons in Navy custody are treatedhumanely and in accordance with the law, and to ensure the prop-er investigation of ill treatment whilst in such custody, and to for-ward a copy of such direction to the Registrar on or before
30.11.2003.
YAPA, J.-1 agree.
WIGNESWARAN, J.-1 agree.
Relief granted.