AMARASINGHE v. SENEVIRATNE AND TWO OTHERS

016-SLLR-SLLR-2010-V-2-AMARASINGHE-v.-SENEVIRATNE-AND-TWO-OTHERS.pdf


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Amarasinghe v. Seneviratne and Two Others
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AMARASINGHE V. SENEVIRATNE AND TWO OTHERSSUPREME COURT,
SHIRANEE TILAKAWARDENE, J.,
K.SRIPAVAN J., ANDP. A. RATNAYAKE, J.
S.C. (F/R) NO. 264/2006SEPTEMBER 22nd, 2009
Fundamental Rights – Article 11 – Freedom from torture, cruelinhuman or degrading treatment or punishment – Laspe of time- Article 11 of the Constitution – fundamental rights Jurisdictionand its exercise – Article 126 of the constitution – Standard ofproof required in fundamental rights cases.
The Petitioner was an Anesthetist, attached to the Base HospitalDambulla and was also the Chief Organizer of the United National Par-ty for Dodandaslanda Constituency. The l5* and 2nd Respondents werePolice Officers attached to the Kurunegala Police Station.
The primaiy issue for determination before the Supreme Court waswhether the Petitioner has proved the allegation of torture or cruel,inhuman or degrading treatment against the 1*' Respondent.
Held
The Supreme Court has given a broad definition to the right notto be subjected to inhuman treatment, extending beyond physi-cal violence into emotional harm as well, which is highly desir-able in the present context with widespread attempts to promoteand protect human rights and prevent excesses of power by publicauthorities.
It is well established that in a Fundamental Rights case thestandard of proof is that applicable in a civil case which is ona balance of probability or on a preponderance of evidence asopposed to beyond reasonable doubt as in criminal case.
Per Shiranee Tilakawardene, J., –
“I find that it would be unfair to hold that the failure on the partof the Petitioner to inform the Magistrate of the assault as fatal to
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the proof of the Petitioner’s case on a balance of probability on aconsideration of the special circumstances of this case”
The medical evidence sufficiently satisfies the case put forward bythe Petitioner against the 1“ Respondent regarding the violation ofhis Fundamental Right under Article 11 of the Constitution.
According to Article 126(2) of the Constitution the requirement offiling a Fundamental Right application within one month seemsto be mandatory. The Supreme Court has repeatedly expressedthe view that in situations where the Petitioner was preventedfrom seeking legal redress for reasons beyond his control such ascontinuous detention after the violation of his rights. Thecomputation of time will begin to run from the date he was underno restraint to have access to the Court.
On the available evidence in this case it would not be reasonableto dismiss this Application on the basis of lapse of time stipulated
under Article 126 (2)
APPLICATION relating to infringement of fundamental rights.
Cases referred to:
Silva v. Chairman, Fertilizer Corporation – (1989) 2 SLR 393
Velmurugu v. Attorney – General – (1981) 1 SLR 406
Liyanage v. Upasena – (SC (FR) 13 and 14/97, SCM. 15.12.98)
Malinda Channa Petris and others v. AG and others – (1994) 1 SLR 1
Jayasinghe v. Appuhamy – SC (FR) 15/95, SCM 28.8.1995
Sudath Silva v. Kod.ithuwdk.ku – (1987) 2 SLR 126
Namasivayam v. Gunawasrdene – (1989) 1 SLR 394
Saman v. Leeladasa- (1989) 1 SLR
Manohara de Silva, P.C. with Bandara Thalagune for the Petitioner.
Chula Bandara for the 1st Respondent.
Madhawa Tennakoon, S.C. for the 2nd and 3rt Respondents.
Cur.adv.vult.
Amarasinghe v. Seneviratne and Two Others
SC(Shiranee Tilakawardane, J.)207
August 06th 2010
SHIRANEE TILAKAWARDANE, J.
This Court granted the Petitioner Leave to Proceedon 13.12.2006 on the alleged violation of Article 11 of theConstitution by the Respondents.
The Petitioner is an Anesthetist, attached to the BaseHospital Dambulla and was also the Chief Organizer of the-United National Party for Dodangaslanda. The Is* Respondentis a Inspector of Police of the Kurunegala Police Station.The 2nd Respondent is the Head Quarters Inspector of theKurunegala Police Station.
The Petitioner alleges that he was assaulted by the 18‘Respondent inside the Kurunegala Police Station premises on
and as such the Petitioner’s Fundamental Rightsguaranteed under Article 11 of the Constitution have beeninfringed.
The primary issue to be determined in this case is whetherthe Petitioner has proved the allegation of torture or cruel,inhuman or degrading treatment against the 1st Respondent.
The Petitioner’s version of facts is as follows. On
he was informed by the Administrative Officer ofthe Base Hospital Dambulla that a group of police Officersof the Kurunagala Police Station had sought permission toenter the hospital premises to take the Petitioner into custodyand that they had been refused entry since the Petitioner wasnot in the hospital at the time.
Thereafter on the same day, the Petitioner received atelephone call from an officer of the Kurunegala PoliceStation to call over at the Police Station to make a statementregarding certain money orders sent to the Petitioner’s wife.
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The Petitioner’s wife had filed divorce action againstthe Petitioner in the District Court. Mount Lavinia bearingNo. 5757/06/D. In January 2006 his wife had also filed amaintenance action against the Petitioner in the Kurune-gala Magistrates Court bearing No. 54153/M/06. ThePetitioner claims that he had paid the monies due for themonths of April and May in accordance with the Order of theMagistrates Court Kurunegala. However the Petitioner’swife stated in Court the she did not receive the said moneyorders.
On 21.06.2006, the Petitioner went to the KurunegalaPolice Station at around 8.30 am and was informed by the 1stRespondent that one Shashi Prabhani Ekanayake had beenarrested for attempting to cash a money order sent by thePetitioner to his wife by presenting the wife’s Identity Card.The Petitioner was asked to make a statement regarding theincident.
The Petitioner recorded a statement that he was un-aware of the incident and that he had duly sent the moniesdue for the months of April and May in accordance with theOrder of the Magistrates Court Kurunegala dated 28.03.2006under the Maintenance Action No. 54153/M/06/ ThePetitioner also stated that the said Shashi PrabhaniEkanayake was an ex-employee of the United National PartyOffice in Kurunegala and that his political opponents mayhave planned this incident to implicate the Petitioner in orderto bring disrepute to him.
After the statement was recorded, the 1st Respondentasked the Petitioner follow him and proceeded to theMinor Offences Branch. The 1st Respondent then informed thePetitioner that he had forgotten his spectacles and proceeded
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past the Minor Offences Branch towards the Police Quarterswhich was situated about 15 feet away to the rear of thePolice Station.
Believing that the 1st Respondent would return to thePolice Station having retrieved his spectacles, the Petitionerturned and walked towards the Police Station Building. Atthis point the Petitioner claims that the 1®* Respondent kickedhim from the back several times on his chest and back as aresult of which the Petitioner fell down. When the Petition-er tried to get up, he had been subjected of further assaultby the 1st Respondent. Thereafter the Petitioner managed tostand up and run towards the Minor Offences Branch at thePolice Station.
Following this incident, the Petitioner was taken to theMagistrates Court Kurunegala by the 1st Respondent andhanded over to the prison officers. Subseqently, the Petitionerwas produced before the Magistrate and remanded till05.07.2006.
As a result of this assault by the 1st Respondent, thePetitioner states that he suffered severe pain in the chestand back and had noticed contusions in those areas. ThePetitioner also had difficulty passing urine and had passedblood with urine.
The Petitioner states that immediately after the Petitionerwas remanded, he had made a statement to the Chief Jailorof the Kegalle Remand Prison that he was assaulted by the 1stRespondent at the Police Station on 21.06.2006.
On 22.06.2006 the Petitioner was examined by aMedical Officer and was admitted to the Kegalle TeachingHospital where he was examined by the Judicial MedicalOfficer. The Diagnosis Card of the Kegalle Teaching Hospital,
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marked as P7 indicates the date of admission as 22.06.2006and the date of discharge as 03.07.2006. The Petitionerstates that he suffered pain even after being discharged fromhospital.
Having submitted an Application by way of Motion on28.06.2006, the Petitioner was released on released on bailon 30.06.2006. However, the Petitioner states that he wasdischarged from the Kegalle Teaching Hospital on 03.07.2006and released on bail on 04.07.2006.
The Petitioner denies any involvement in the incidentinvolving the encashment of the money order by ShashiPrabhani Ekanayake and claims that in the circumstancesthe acts of the 1st Respondent on 21.06.2006 amount totorture or cruel, inhuman or degrading treatment underArticle 11 of the Constitution.
The 1st Respondent’s version of events is that on
around 8.30 am the Petitioner appeared at theKurunegala Police Station and that the 1st Respondent wasinstructed by the Officer in Charge of the Minor OffencesBranch C.I. Navaratne to record the Petitioner’s statementand to produce the Petitioner before the Magistrate CourtKurunegala. Accordingly at around 9.30 am the 1stRespondent recorded the statement of the Petitioner andat around 9.55 am the 1st Respondent along with SergeantKarunarathne took the Petitioner to the Magistrate’s CourtKurunegala in the Petitioner’s vehicle driven by the Petitioner.father. The 1st Respondent denies that he assaulted thePetitioner at any point of time.
Having considered the submissions on either side, it isclear that the case involves disputed facts relating to theevents on 21.06.2006. In reaching a conclusion this Courtmust consider the burden of proof bn the parties involved
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and the credibility of the different versions submitted beforethis court, bearing in mind the seriousness of the allegationsmade by the Petitioner against the 1st Respondent.
Article 11 of our Constitution reads that:
“No person shall be subjected to torture or cruelinhuman or degrading punishment or treatment”
All international declarations of human rights prohibittorture as well as cruel, inhuman or degrading treatment orpunishment. Article 5 of the Universal Declaration of HumanRights, Article 7 of the International Covenant of Civil andPolitical Rights and Article 3 of the European Convention onHuman Rights are in similar terms.
Article 1 of the Convention against Torture and OtherCruel, Inhuman or Degrading Treatment or Punishmentstates that;
“torture means any act by which severe pain or suffering,whether physical or mental is intentionally inflicted on aperson for such purposes as obtaining from him or a thirdperson information or a confession, punishing him for anact he or a third person has committed or is suspected ofhaving committed, intimidating or coercing him or a thirdperson, or any reason based on discrimination of any kind,when such pain or suffering is inflicted by or at the instigation ofor with the consent or acquiescence of a public official or otherperson acting in an official capacity. It does not include painor suffering arising only from, inherent in or incidental tolawful sanctions”
Dr. Amerasinghe J in his separate judgment in Silva v.Chairman, Fertilizer Corporation(1), analyzing the concept ofinhuman treatment observed that;
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“The treatment contemplated by Article 11 wasn’tconfined to the realm of physical violence. It would ratherembrace the sphere of the soul or mind as well.”
Thus this Court has given a broad definition of the rightnot to be subjected to inhuman treatment, extending beyondphysical violence into emotional harm as well, which is highlydesirable in the present context with widespread attempts topromote and protect human rights and prevent excesses ofpower by public authorities.
Now let us turn to the issue of proving the allegationsmade by either party.
It is by now, well established that in a Fundamental Rightscase the standard of proof is that applicable in a civil casewhich is on a balance of probability or on a preponderanceof evidence as opposed to beyond reasonable doubt as ina criminal case. (Vide Velmurugu v. Attorney General,Liyanage v. Upasena(3)
In the case of Malinda Channa Peiris and others v. AGand others, it had been specifically stated that havingregard to the gravity of the matter in issue a high degreeof certainty is required before the balance of probabilityis proven in favour of the Petitioner subjected to torture,or cruel, inhuman or degrading punishment to prove thatArticle 11 had been transgressed.
Considering the relevance of the medical evidence, thePetitioner alleged that he was assaulted by the 1st Respondenton his back and chest and as a result he suffered fromsevere pain on the chest and back and had also passed bloodwith urine. The Petitioner contends that the Diagnosis Card
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marked P7 provides strong corroboration of the allegation ofassault by the Respondent. Page 2 of the said Diagnosis Cardin particular states “that there were contusions in the backand chest, tenderness in the renal angle and that the urinereport indicated moderately filed red cells’.
The attention of the Court is drawn to the case ofJayasinghe v. Appuharmy*51 where the Court held that the de-scription given by the D.M.O. in respect of the injuries sus-tained by the Petitioner provided strong corroboration of thePetitioner’s allegation of assault on him.
In the instant case the Diagnosis Card appears tocorrobotate the injuries sustained by the Petitioner. Accordingto the Medico-Legal Report the Petitioner had been admittedto the Hospital on 22.06.07 and the history given by thepatient is an follows:
“He was asked to come to Kurunegala Police on 21.06.06.When he went there he was assaulted by a Police Officer withfist and kicked him and fell down; Following that he wastaken to the Courts and sent to the prison; while in the prisonhe found that he was passing blood with urine and admittedto the hospital”
On the available evidence it seems that the Petitionerdid suffer injuries as reflected in the Medico-LegalReport. The Diagnosis Card provide strong evidence that thePetitioner had been assaulted and bears witness to the injuriessuffered by him. However it cannot be held by itself to suffi-ciently corroborate the fact that such injuries had been causedby the 1st Respondent and the version of facts given by thePetitioner.
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In considering both the Petitioner’s and Respondent’sversions the question is whether there had been anyattempt to distort the facts on either side. The Respondenthas sought to support his position that no assault took placeon 21.06.2006, by producing the affidavits of Cl Navarath-ne, Inspector of Police Mohamed Razik and four witnesseswho were allegedly present at the police station at the timewhen this alleged assault took place. However in the specialcircumstances of this particular case one is compelled todoubt the independence of these witnesses and the affidavitsproduced therein.
It is indeed curious that neither the Petitioner nor hisattorney brought the fact of the assault to the notice of theLearned Magistrate on 21.06.2006. The 1st Respondentcontends that on 30.06.2006 when the Petitioner was grantedbail, Counsel appearing for the Petitioner only informed theLearned Magistrate that the Petitioner was sick Thus therehad been no mention of any Police assault. The Petitionerstates that he made a contemporaneous statement of theChief Jailor of the Kegalle Remand Prison regarding theassault by the 1*‘ Respondent. It had been submitted by thePetitioner’s father that there wasn’t sufficient time to retainor consult a lawyer on the day the Petitioner has beenproduced before the Magistrate’s Court. Therefore one ofPetitioner’s friends had appeared before the Court on thatday on behalf of the Petitioner. The Petitioner’s father deniesthe 1st Respondent’s version that the Petitioner was taken tothe Magistrates Court in a car driven by him. The Petitioner’sfather states that when returned to the Kurunegala PoliceStation he was informed that the Petitioner had been taken intocustody and taken to the Magistrates Court and accordinglyhad driven himself to the Court premises. The Petitioner’sfather states that when he arrived at the Magistrates Court
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the proceedings had already commenced and that hewas unable to talk to the Petitioner who was in his cell. Hestates that when proceedings were adjourned, he inquiredfrom the Petitioner as to why his clothes were stained withmud and was informed that the Petitioner had been assaultedby the 1st Respondent. The Petitioner’s father also states thathe had urged the lawyers who appeared for the Petitioner toinform the Magistrate of the assault but was informed thatthis was not possible.
It must be determined whether P7 alone would prove thePetitioner’s case on a balance of probability.
The Petitioner in Sudath Silva v. Kodithuwakkut®complained that he was illegally detained at thePolice Station for five days and was subject to torture. TheMedical Officer of the local hospital before whom the Petitionerwas produced by the Police reported no external injuries.However the Additional Judicial Medical Officer. Colombobefore whom the Petitioner was produced upon an Ordermade by the Magistrate, found scars consistent with thePetitioner’s complaint.
Atukorale J rejected the report of the Local MedicalOfficer as worthless and unacceptable and stated that thecase disclosed a gross lack of responsibility and a derelic-tion of duty on his part. According to Atukorale J the failureof the Petitioner to complain to the Medical Officer or to theMagistrate before whom he was produced “must be viewedand judged against the backdrop of his being at that timeheld in Police custody with no access to any form of legalrepresentation” Sudth Silva v. Kodithuwakku (Supra)
In light of the above and the circumstances of thisparticular case. I find that it would be unfair to hold that the
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failure on the part of the Petitioner to inform the Magistrateof the assault as fatal to the proof of the Petitioner’s caseon a balance of probability on a consideration of the specialcircumstances of this case.
Atukorale J also observed is Sudath Silva v.Kodithuwakku (supra) that:
“Article 11 of our Constitution mandates that no personshall be subjected to torture or to cruel or inhuman punish-ment or treatmentConstitutional safeguards are generally
directed against the State and its organs. The Police Forcebeing an organ of the State is obliged by the Constitution tosecure and advance this right and not to deny. Abridge orrestrict the same in any manner and under any circumstances.It’s therefore the duty of this court to protect and defend thisright jealously to its fullest measure with a view to ensuringthat this right is declared and intended to be fundamental isalways kept fundamental and that the Executive by its actiondoes not reduce it to a mere illusion.”
Sharvananda J in Velmuruge v. AG (supra) highlightedthe inherent difficulties in proving a case of torture by thePolice.
“There are certain inherent difficulties in the proof ofallegations of torture or ill treatment. Firstly a victim or awitness able to corroborate his story might hesitate todescribe or reveal all that has happened to him for fear ofreprisals upon himself or his family. Secondly acts of tortureor ill treatment by agents of the Police or armed forces wouldbe carried out as far as possible without witnesses or perhapswithout the knowledge of higher authority. Thirdly whereallegations of torture or ill treatment are made the authori-ties whether the police or armed services or the ministries
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concerned must inevitably feel they have a collectivereputation to defend. In consequence there may be reluctanceof higher authorities to admit or allow inquires to be madeinto facts which might show that the allegations are true.”
Commenting on the systemic increase in allegations oftorture or cruel or degrading treatment leveled against thePolice Force and the duty to protect against such incidents, thisCourt in Gerald Perera v. Suraweera SCFR observed that;
The number of credible complaints of torture and cruel,inhuman and degrading treatment whilst in Police custodyshows no decline. The duty imposed by Article 4(d) to respect,secure and advance Fundamental Rights, including freedomfrom torture, extends to all organs of government, and theHead of the Police can claim on exemption.
On the fact of this case, it must be held that the medi-cal evidence sufficiently satisfies the case put forward by thePetitioner against the 1st Respondent regarding the violationof his Fundamental Right under Article 11 of the Constitu-tion.
The Respondents also raised the objection that theinstant Application is time barred.
The Petitioner contends that he was released fromremand prison only on 04.07.2006, even though bail wasgranted on 30.06.2006, which fact if proved would not makethis Application time barred. The Petitioner supports suchcontention by tendering the Journal Entries dates 30'.06.2006and 04.07.2006 in the Maintenance case filed by thePetitioner’s wife in the Magistrate Court of Kurunegalabearing No. 54153/06 marked P2, in which it is clearly stated
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that the Petitioner was released only on 04.07.2006 whichwould bring the present Application within the time frame ofone month. However the Respondent argues that even if thePetitioner had been released on 04.07.2009, nevertheless hehad easy access to a lawyer to represent him.
Article 126 (2) states:
*Where any person alleges that any such fundamentalright or language right relating to such has been infringed byexecutive or administrative action, he may himself or by an at-torney at law on his behalf, within one month thereof, in accor-dance with such rules of court as maybe in force, apply to thesupreme court by way of petition in writing addressed to suchcourt praying for relief or redress in respect of such infringe-ment. Such application may be proceeded with only leave toproceed first had and obtained from the supreme court, whichleave may be granted or refused, as the case maybe, by notless than two judges”
According to this Article the requirement of filing aFundamental Right case within one month seems to bemandatory. This Court has repeatedly expressed the viewthat in situations where the Petitioner was prevented fromseeking legal redress for reasons beyond his or her controlsuch as continuous detention after the violation of his or herrights, the computation of time will begin to run from the dateshe/he was under no restraint to have access to the Court.
As per CJ Sharvananda in Namasivayamn v.Gunawardene™ “If this liberal interpretation is not accept-ed the Petitioner’s right to his constitutional remedy underArticle 126 can turn out to be illusory”
In Saman v. Leeladasaim Fernando J. was of the viewthat if the Petitioner did not have easy access to a lawyer
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due to his status as a remand prisoner and due to sub-sequent hospitalization on account of the injuries hesuffered, the principle of lax non cogit ad impossibilia appliesin the absence of any lapse of fault.
In this case the Petitioner until the time he was releasedon bail remained as a remand prisoner. Moreover he hadbeen discharged from the Kegalle Teaching Hospital only on04.07.06.
Hence on the available evidence it would not be reason-able to dismiss the Application on the basis of lapse of timestipulated under Article 126 (2) .
In the light of the reasoning given above, it can well beconcluded that the Petitioner’s rights under Articles 11 of theConstitution have been violated by the l8t Respondent.
Accordingly this Court declares that the Petitioner’sFundamental Right guaranteed under Article 11 of theConstitution have been violated, by the 1st Respondent. ThisCourt also orders a sum of Rs. 50,000/- to be paid by the 1stRespondent to the Petitioner as compensation. This sum isto be paid in his personal capacity. Sum is to be deposited inthis Court within one month from this Judgment. No Costs.
SRIPAVAN, J. – I agree.
RATNAYAKE, J. – I agree.
Relief granted.