001-SLLR-SLLR-1989-V-1-SAMAN-v.-LEELADASA-AND-ANOTHER.pdf

Mallikarach'chi v. Shiva Pasupati. Attorney-General (1 985.) 1 SRI LR 74.
Home Telephone Co. v. City of Los Angeles- 227 US 278. 287.'
Virginia v. Rives — 100 US 313.
_23. Ex parte Commonwealth of Virginia— ,100 US 339
' Nealv. Delaware — 103 US 370.
Raymond v. Chicago Union Tractor Co. 207 US 20
lowa-Des Moines National Bank v. Bennet 284 US 239.
27.. Ex parte. Young 209 US 123. 156.160.
Larson v. Domestic & Foreign Commerce Corporation 337 US 682.
United States v. Classic-313 US 299. 326,
The CM/ Rights Cases 1.09 US 3, -1 1.113.
Gunaratne v. People’s Bank (1986) 1 SRI LR 338. 353.
Jayahetti'v.' The Land Reform~Cdm(hission and others "(1984) 2 SRI LR
. 172, 186. 192-3, ,J v '
Rajaratne v. Air Lanka (1 987),2 SRI LR 128; 145. 149.
Nimal Tissa Wijeiunga v. The Insurance Corporation of Sri Lanka
(1982) 2FRD 265. 279.. .
-35. -Amal Sudath Silva v. Kodituwakku Inspector of Police arid Others'(1987) 2 SRI LR 1 19. 127. –
Roberts v. Ratnayake:L1986) 2 SRI LR 36..69. 104.
Chandrasena and /Others v. National Paper ’. Corporation and Others'(1982) 1 SRI LR’ 19.
– Gunasena Thenabadu v. University of Colombo and Offers
-(1979) * FRD 63.’ "'‘
6
Sri Lanka Law Reports
119891 1 Sr, L. R.
Gamini Samarasinghe v. Bank of Ceylon and Another (1980) 1FRD165.
Ganeshanathan v. Vivienne Goonewardene and Others (1984) 1 SRI LR319. 331. 351.
K. Visvalingam and Others v. Don John Francis Liyanage (1983) 2FRD.452.
Elmore Perera v. Major Montague Jayawickrema and Others (1 985) 1SRI LR 285. 364. 390.
Katunayakege Damesius Perera and Another v. R. Premadasa -andOthers (1 979)' 1 FRD 70. 72.
Palihawadana v. Attorney-General and Others (1979) 1 FRD 1.
Edirisuriya v. Navaratnam and Others (1 985) 1 SRI LR 100. 106.
Ranatunge v. Jayewardene and Others (1 970) 1 FRD 77, 80.
Jayewardene v. Attorney-General and Others (1981) 1 FRD 175.
• 48. Siriwardene v. Rodrigo (1 986) 1 SRI LR 384. 387.
Visvalingam v. Liyanage and Others (1 983)' 1 SRI LR 203. 28'1.304.
Victoria'Park Racing and Recreation Grounds Co. v. Taylor (1 937) 58. CR CLR 479. 50.5. –
5.1. Nimmno-Smith v: Burgess Garages Ltd. and London County Council.(1958) CV A. No.'272 reported in Kemp and Kemp:
The Quantum of Damages 2nd Ed. Vol f , page 1 59-1 65 (1961) .
52. Laxamapa and Others v: G.’P. S. Weerasooriya. General Manager ofRailways and Another — (1987) 1 SRI LR 1 72.
,53. Gooneratne and Others v. Chandrananda de Silva. Commissioner of, . Elections (1.987) 2 SRI LR 165/1 78.-
'. 54, M'Leish v. Fulton and Sons — 1 955 SC 46. 49.
. 55. Weld-Blundell v. Stephens (1920) AC 956,-986.
-y 56. VCassell & Co. v~. Broome and Another (1 97.2) 1 ALLER<801.873.
Rookes v. Bernard^964) 1AIIER 269.
Fielding andAnother v. Variety Incorporated (1967) 2 AIIER 497. 500.
sc
Saman v. Leeladasa and Another
7
• 59 Greehlands v. Wilmshurst (1 913) 3 KB 507. 532.
Uren v John Fairfax & Sdns Pty Ltd. (1967) 1 17 CLR 1 50.
Ley v. Hamilton (1 935) 1 93 LT 384. 386.
APPLICATION for infringement of Fundamental. Rights'.
A. ,A. de-Silva with Kalyananda Thirangama Nimal Punchih'ewa and G. P,Dissanayake for Petitioner.
Saleem Marsoof. S.S.C with F. N. Goonewardene. S.C. for 2nd, 3rd & 5thRespondents.,
Kanchaha Abeyapala for 1st Respondent."
. Cur, adv. vult.
December 1 2. 1 988RANASINGHE. c.j.
I have had the advantage of reading, in draft, the judgments ofboth Fernando. J., and AmerasingheVJ.,
I .agree with their findings on the questions of fact which are inissue in these proceedings.•
Fernando, J., has considered an interesting -aspect of theearlier judgments delivered by this Court, which have drawn'heavily from the views expressed .by the Privy Council in the caseof Maharajvs. A. G. (T) in regard to.the basis of the liability of theState for infringements of'Fundamental Rights by "executive oradministrative-action.".
Fernando, J., is, however, of the view that — whatever be thereal basis upon which liability is so affixed upon the State — theState is, in law, liable to the petitioner in this case upon the factsand circumstances which have.been established. It is, therefore,not necessary to enter upon an analysis of the earlier judgmentsof this Court from the standpoint that has weighed withFernando,- J. Such a discussion. could be left to- a moreappropriate .case where-this matter is raised directly before aspecially constituted larger Bench which would have the benefitof a full argumenHrom the Bar.
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I agree with the view taken by Amerasinghe. J'.. founded as it isupon the opinions expressed hitherto by this Court in regard tothe basis of such liability.
I also agree with Amerasinghe. J.. in regard to the relief to begranted to the petitioner, and in regard to the orders for co§ts.
FERNANDO. J.
The Petitioner, a school teacher, claims relief in respect of thealleged violation of his fundamental rights under Article 1 1. Hewas arrested- on 29.7.87.and was produced before theMagistrate. Elpitiya. on 18.10.87; orders for remand, at the GallePrison.were made and extended later. On 3.1 2.87 when the casewas called, the Court was informed that he was receivingtreatment in hospital, and a further order for remand was madeuntil-the. next calling date, namely 1-7.12.87. On 11.12.87 amotion was filed by an Attorney-at-law on his behalf that the case■ be called in open court. The Court was informed that by letterdated -.8.1 2.87 — also journalised on 11.1 2.87 — the Attorney-General had consented to bail; the same day he was released on' personal bail. ..•
Relief is sought not in respect of the Petitioner's arrest ordetention, but in regard to an assault by the 1st Respondent, aPrison guard, at about 5.00 p.m. on 1.12.87. The Petitioner wasbathing at a water tank a short distance away from the block ofcells ("Ward G") to which he was assigned. The 1st Respondent. had been assigned duties that day in connection with Wards Cand D; finding, that some of the prisoners in those Wards weremissing, he, searched for them, and saw several prisonersbathing at. the water tank. Having told them, that they were notpermitted to. bathe at that time, he ordered them to go to theirWa.rds; while the .others complied with that order, the Petitionercontinued to-bathe. The 1st Respondent states that he repeated. hjs order more firmly, raising his hand and shouting at thePetitioner to go away, whereupon the latter got ready to leave butslipped.and.fell; he was not aware that the Petitioner suffered any'injury. However, the Petitioner states, that he told the 1stRespondent that he had obtained permission to bathe at that
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time, but the 1st Respondent told him to get out. and then kickedand assaulted him. despite his pleas; he then left, but the 1stRespondent followed, picked up a baton* from a table in- theLibrary,- and hit him repeatedly, despite his-.cries that his handwas broken. The Petitioner and other Prison .officers andprisoners have made statements, some of which are substantiallyconsistent with the Petitioner's version; some o.f,tf^em do notmention any incident whatsoever; and none of them make anymention of a fall. All the.se statements, as well as. statementsmade to the Police, were filed with the affidavits, of the 2nd|and.'3rd Respondents, and . no .objection was taken ■ to„ theiradmissibility or- relevance; all parties referred to. and' relied opportions of these statements. '
The Petitioner ' complained’ of the assault to 'the 2ndRespondent.-the Chief Jailor, on the later’s routine‘visit to the'-Ward that evening, which was 'recorded the sarrie evening. by ajailer oh his' instructions: on the next-day he directed that a fullinquiry be held; and the statements of other witnesses* were .recorded on 2.1 2,87 and 3.1 2.87. The 2nd Respondent and the3rd Respondent (the Superintendent of-Prisons; Galle) also tookprompt action to have the Petitioner-treated at the Prison hospital,and then 'sent to the'Galle Hospital "Tor treatment -and for'examination by the Judicial Medical'Officer. The; Petitioner was',accordingly-admitted to the GalleifHospital-on 2v 12,87;; the‘3rd.Respondent wrote To the Judicial .Medical.-'Officer on 3.1 2,87.; ’but as the Petitioner was discharged, from the-Galle Hospital on3.12.87; the Judicial Medical Officer wa.S'-.unable (as appears-from ,hits reply dated 8-. 1 2.87 to the 3rd Respondent) tp, submit areport on the Petitioner as the Petitionerr-was, not there. That-replywas received on 10.12.87. and on 11.12.87. the 3rd.Respondent again sent the Petitioner to the Galle Hospitalspecifically for examination by the Judicial Medical. Officer. Twomedical .reports submitted tiy the latter establish that thePetitiOne?-'bad suffered a fracture .of .his left' arm. below the.elbow/ and that He had other injuries consistent with an assaultwith a-baton. From 3.12.87 to 11.12.87. the Petitioner was inthe Prison Hospital. –
■- It.is common ground that the 1st Respondent was promptlyinterdicted, and that ’ disciplinary proceedings as well as acriminal'prosecution are pending against hirh.■■■■■
w
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A preliminary objection was taken that the petition filed on7.1.88 was out of time as more than one month has elapsedafter the alleged infringement on 1.1 2.87. It was submitted thatvisits by lawyers and relatives were not restricted, and that thePetitioner had the opportunity to consult lawyers. There are twoindependent reasons why this contention cannot succeed. Aremand prisoner cannot contact a lawyer with the same ease andfacility as other persons: additional time has necessarily to bespent in sending messages to. or in awaiting a visit from, a’relative, who would then have to contact.a lawyer ; and moretime would be necessary to give proper instructions. The periodof time necessary would depend on the circumstances of eachcase. Here, the Petitioner was hospitalised from 2.1 2.87 until hisrelease, and was thus prevented from taking immediate action topetition this Court for redress : an impediment, to the exercise ofhis fundamental right (under Article 17) to apply to this Court,caused by the very infringement complained of. Further, the factthat he.had been assaulted, or that an injury had been inflictedon him. would not.per se bring him within Article 1 1 : whetherthe treatment meted out to him would fall within Article 11 woulddepend- on the'nature and extent of the injury caused': until thePetitioner had-knowledge,. or- could with reasonable diligence.'have discovered.' that an injury sufficient to bring him withinArticle 1 T had resulted, time did not begin to run.-1 need mentiononly Gamaethige y. Siriwardena-^2) where'1 had occasion to refer' to several decisions of this Court which support the applicationof the principle lex non cogit ad impossibilia in the absence'of anylapse- or fault. On the application of that principle, time did notbegin to run in this case .until 11.1 2.87. and the preliminaryobjection fails. –
Counsel for thd Petitioner strenuously conterided that the 2ndand 3rd Respondents were also culpable and liable because,theyhad participated in a " cover-up ", although'admittedly they hadnot instigated'the assault and were .not even present when itoccurred. It was his submission that there had been a deliberateattempt to prevent the-Petitioner being, medically examined, andthat i.t.:was only.when they knew he-was to be released that hewas sent for-examination : because they- realised that thereafterthey would not be able to have him examined. This contention is
SCSaman v. Leeladasa and Another (Fernando. J.).1-1
not supported at ali by the .documentary evidence referred^toearlier. As far .as the Respondents were concerned, 17.12.87•was the next'calling date, and it is likely that on 11.1.2.8,7 theywere unaware that the Petitioner was to be released.. Further,commendably prompt action was taken, throughout, firstly, tohave him treated.and examined by the Judicial Medical Officer(and it was through sheer inadvertence that this got. delayed),and secondly, to take disciplinary action against the 1stRespondent: In these circumstances, they -were neitherresponsible for nor did they condone, ratify or seek to " cover-up " the act of their subordinate : public officials are not, apartfrom actual authorisation, responsible for the delicts of theirsubordinates, and the relationship of master and servant does■not exist between a public official and his subordinate, (a)
I now turn to the incident of 1.1 2.87. In his affidavit in this.Court, the Petitioner says that the 1 st Respondent asked him whyhe was on remand ; on being told that he was in custody underthe Emergency Regulations, the 1st Respondent stated
You dogs are the fellows who a.re trying'to bring theGovernment down and we are here.on duty to teach youdogs a lesson so that you will not have your limbs to do-anything in future. "
This was supported by amaffidavit sworn by one Shantha whohad been on remand till 23.12.87. Counsel for the 1stRespondent referred to the principle of liability enunciated inVelmurugu i/ Attorney-General (3) :
" the State should be held strictly liable for any acts of itshigh- state officials . . . . …… if the allegations against the.
2nd Respondent had • been proved, this would haveconstituted artact'of the State itself and entailecj the liabilityof the State for suchr.acts.
The liability in respect of subordinate officers should applyto all acts done under colour of office, i.e. within the scopeof their.^authority, express or implied, and should also.
■ extend to’ such other acts that may be ultra vires and even in ■
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disregard of a prohibition or special directions provided thatthey are done in the furtherance or supposed furtherance oftheir authority or done at least with the intention ofbenefiting the State. " (b)
■ Counsel submitted that the words emphasised in theaverments quoted above had been falsely attributed to the 1stRespondent in an attempt to show that he acted in the" furtherance • of his authority” and "with the intention ofbenefiting the State ". and thus to bring him within this principleof1 liability ; that the Petitioner's original statement, and hisstatement .to the Police on his release as well as the otherstatements recorded on 2.12.87 and 3.12.87, make no mentionof any such utterance.by the 1st Respondent: that Shanthamade no. statement either to the Prison, authorities or to thePolice. On the available evidence. I have no hesitation in rejectingthis part of the Petitioner's story.
It remains; to consider whether the Petitioner suffered theseinjuries as a result of a fall, or as a result of an assault by the 1 stRespondent. Apart from the 1st Respondent's statement and hisaffidavit in this Court, there is no material supporting his version.The standard proof in these’cases is usually expressed asinvolving the. " preponderance of probability". There are.undoutedly. degrees of probability within that, .standard, andthere must be, as Denning,, L.J.,- said in Bater v. Bater. (4) " adegree of . probability, which is 'commensurate with theoccasion ", Morris. L.J-..- in Hornal v. Neuberger Products Ltd (5)said that ■" the.-very elements of'gravity become a part of thewhole range- of- circumstances which have to be weighed in thescale when deciding as to the balance of probabilities ". In theend. as observed by Wanasundera. J.. in Velmurugu's case (3).•" the.petitioner must prove his allegations to the satisfaction of.the. Court": and- in Kapugeek'iyana v. Hettiarachchi, (6)Wimalaratne, J.. agreed that " the civil, and not' the criminal,•standard of- persuasion applies, with this observation -that thenature and gravity of an issue must necessarily determine the■manner. of-.attaining. reasonable-satisfaction of-the truth of thatissue,". ■
• SCSaman v. Leetadasa and Another (Fernando, J.)13
In considering the Petitioner's version, his. attempt to distortthe facts cannot be ignored. I am nevertheless of the view that anassault by the 1st Respondent, as alleged in the Petitioner'soriginal statement, has been established.There is no doubt .thatthe Petitioner did suffer serious injuries that evening ; the onlydispute.or altercation involving the Petitioner was with the 1stRespondent; no re.aspn has'been suggested why other.officersand prisoners should falsely implicate the 1st Respondent: and.the medical evidence that the fracture and other injuries were theresult of repeated blows with ,an instrument such as a baton hasnot been challenged; It is much more probable that these injurieswere caused by blows with a~baton, rather than by a fall, and I sohold.
Prison Rule 132 in requiring all Prison officers " withoutexception, to treat the prisoners with kindness and humanity ",may well be a counsel of “perfection. The enforcement ofdiscipline may occasionally warrant the use of some force, andsome latitude is. perhaps, permissible in deciding whether in thecircumstances of-a particular case the force used was. excessive.Action and reaction can seidom . be^ nicely balanced where adecision to, use force has to be taken on the spur of the moment. ’and a strict application of- Rule .132’ may, not always bepracticable, A single blow even with a baton, would be,unlawful,bu.t,. arguably, would seldom amount to .cruel or inhuman ordegrading, treatment': but a brutal assault as in this case,commencing with kicks and blows, and. continued . in anaggravated form-— by repeated blows with a baton — even afterthe Petitioner complied with the order given to him. amounts tocruel', inhuman and degrading treatment. As it was inflicted for a,supposed breach of' discipline. it_ may also amount to"punishment" I am. of the view that.it does not amount to" torture ", which .seems.to me to require a further.element : anobjective of forcing a confessio'n, or • of. facilitating aninterrogation, or otherwise : influencing future Statements orbehaviour.
It was submitted on behalf of the Respondents that the 1stRespondent had'nof been assigned any duties in relation to thePetitioner or Ward G. Further, that a.Prison Guard had no powerto enforce discipline by giving orders to prisoners, or..to use
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force in connection therewith, as Rule 1 1 (of the Prison Rules)provides that a guard " shall not take any part in the discipline ofthe jail In reply to questions from us as to the duty of a prisonguard to maintain order, even by using force, in situations suchas a fight among prisoners, an attempt to start a fire, or damageto property, it was submitted that (apart from situations wherepersons sought to break in or break out of the jail), a prisonguard's duty was primarily to watch, and to report any breach ofdiscipline to the appropriate officer: he ..could take action inrespect of such breaches only upon orders from a superiorofficer. In the context of the Ordinance and the Rules. " disciplineof the jail " in Rule 1 1 cannot be given the meaning contendedfor. It is unnecessary to consider the precise meaning of thisphrase in that Rule, for other provisions of the Ordinance and theRules indicate that the maintenance of order is within the scopeof employment; and duty, of a prison'guard :
Every prison officer shall, for the purposes of. thisOrdinance, b.e deemed to be always .on duty." (S. 10(1))
It shall be the duty of every prison officer to preserve orderand discipline among the prisoners in accordence with theprovisions of this Ordinance and the rules made under
section 94 . . . '.and for such purpose it shall be
lawful for a prison officer to use all such means, includingsuch degree of force, as may reasonably be necessary tocompel obedience to any lawful directions given by him. "-(Section 13)'
". Each subordinate officer shall perform such duties as mayfrom time to time be prescribed by the Jailer for the purpose' of preserving discipline and enforcing diligence, cleanliness,order and conformity to the rules of the prison. " (Rule 121)
" No jailer of subordinate officer shall — (18) fail to maintainorder and discipline (Rule 1 55)
C ■‘ i „»- •' ‘
. A ".prison officer '-' includes a " subordinate-officer " (section7).i,ajnd-a prison guard falls into that category (Rule 119).Regardless of the precise meaning of Rule 1.1. the .maintenance
SCSaman v. Leeladasa and Another (Fernando, J.)
15
■of order and discipline, and the enforcement of lawful directions,is within the scope of employment of a prison guard. I thereforehold that the 1st Respondent was acting in the course of hisemployment, or duty, when he gave-directions to the Petitioner,and used for.ce upon the Petitioner's non-compliance therewith.Even though he had not been assigned any specific duties inrelation to the Petitioner, his act was within.the general scope >of'his employment ;■ it was not an'act done " while on his' ownbusiness and'for his own. purposes ", nor was it an unauthorised 'and wrongful act so unconnected with the authorised act as tobe an independent act; it wa.s done in the performance of hismaster's business and not merely during such performance :although it amounted to wilful wrongdoing, it was nevertheless inthe course of. his,'employment, and not,for his own. business,purposes or benefit: even assuming that there had.:been aprohibition on the’ use of excessive force by prison.guards, thatwould not have.ibeerr a prohibition which limited the sphere ofemployment, but. a prohibit.ioh which only dealt with conductwithin the sphere of'enhplo'yment. These are the'basic principles,of our law appjicablegd.determining whether an act .was." in the, course of employment", .(b);'
However, Counsel fqr the Petitioner submitted that thequestion of liability of the State.' vyas to be determined by theprinciples laid down in Thadchanamoorthi v. A.G. (7). Velmuruguv. A.G. (3) and Ggonewardene v. Perera (8) and it becomesnecessary to consider the basis, and'‘nature, and extent; of.liability.■ ■ ■■' •
• In the,Thadchanamoorthi case. Wanasundera, J.. having heldon the, facts that an infringement had not been proved, expresseddisagreement with the.submission that the act .of a public officerwould not constitute State action unless done within the scopeof the powers given to him, ".which means that if it is an unlawfulact or is a n act-considered ultra vires, it would not be consideredState .action.", He found to be more reasonable the approach'that " all;:, acts of a public official, whether acting within theterms of his powers or acting under colour of office would beState action ". -but felt that this went too far as. there.could becases " where an act of a public officer acting under colour of
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office ought to be considered purely as an individual or privateact of the person concerned and not as an official act It mustbe observed, with respect, that an ultra vires or an unlawful (evencriminal) act can be done by a servant " in the course ofemployment ". and would render the master liable, (c) andaccordingly that possibility was. of itself, not a good ground forrefusing to apply- the common law principles of liability.Observations made in that case also tend to suggest that the'existence of an " administrative practice " may be relevant toState liability and to the question whether an infringement wasby " executive or administrative action ".
In the Velmurugu case, three Judges held bn the facts that theinfringement had not been established, while the.minority took,the-contrary view. Two. ofjhe Judges who constituted themajority, but not the third, agreed with the formulation, quotedabove, (3) as to. the liability of the State — strictly, for the acts of" highj' officers, and for acts done " under colour of office " inthe case of other officers. The two Judges, who constituted- theminority, relying on Maharaj v. A.G. (1) took the view that " this isnot vicarious liability ; it is the liability of the.State itself.: it is nota liability'in tort, at all ; it is a liability in the public law of theState" (Sharvananda. J.f: they considered the existence of an
administrative practice." to be irrelevant.
In Goonewardene-v. Perera (8) processionists were directed todisperse by a Police Officer who'wrongly believed that a permitwas required by law.; upon failure to disperse, the Petitioner.wasarrested. The test suggested by the Respondents — " that theState-.has either expressly or impliedly authorised or. ratified oradopted or condoned or acquiesced'in the acts constituting theinfringement," -^' was held to have been satisfied, and. the Statewas held liable for-the Wrongful arrest. Although that concludedthe matter. Soza. J..'proceeded to consider the formulations inthe previous decisions. He considered the distinction drawn byWanasundera. J.. between " high'" and " subordinate " officials,toi be obiten, and did not agree that any distinction should bedrawn on .the,basis.of rank. (However neither Judge made anyreference -to .the:. recognised -distinction between the primaryrepresentatives, of a corporate body, and its servants (d). (9). He
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agreed with the minority view, as formulated by Sharvananda, J..as well as the further elaboration thereof in Mariadas v. A.G.(10):'
" What.the petitioner is complaining of is. an infringement ofhis fundamental right by executive or administrative action,that the State has through the instrumentality of an over-zealous or despotic official committed the transgression ofhis constitutional right. The.protection afforded by.Article126'is against infringement of fundamental rights by theState, acting by some public authority endowed by it withthe necessary coercive powers. The relief granted isprincipally against the State, although the delinquent officialmay also be directed to make amends, and/or sufferpunishment. "'. .■…..
The Petitioner in Mariadas Raj v. A.G. had been found" in ahouse which was being searched by a Police Officer ; he wassuspected.to be. an illegal immigrant, and was arrested. As hehad not been informed of the reason for such arrest, the arrestwas held to. be in violation of Article 1 3 (1). Clearly, the arresthad been made in the course of duty of that Police Officer.
In both these eases, the Police Officer who actually made thearrest had not been made a Respondent to the petition filed, andthe arrest had been wrongly attributed to another officer ; theState was ordered to pay compensation. ■
■ In ..other cases (6, .1 T) relief has1 been granted against thepersons actually guilty of the infringement, and not against theState ; in cases alleging violations by corporate bodies, relief hasbeen granted agairist such bodies, and npt against;the State (1 2,1 3-, 14). In .Nallariayagam v. Gunatiiake (15) the Petitioner hadbeen illegally kept- in custody for three . days longer thanauthorised', and' the State was ordered to pay compensation forthe violation of his fundamental right under Article 13 (.2).
The Petitioner is entitled to relief-: is the liability, primarily andprincipally, or'solely. that of.the State .? Is the liability of the Statein respect- of an infringement of fundamental rights by its agent
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or employee more extensive than the liability of a master for alike infringement by his servant ? Or is the 1st Respondentalone liable? The principles laid down ' in some of thedecisions referred to above are obiter : to some extent they aremutually inconsistent : in some, orders were made onlyagainst the State, in others only against the wrongdoer, and inyet others against both. –
It is necessary to refer to Maharaj v. AG. (1) The Appellant, amember of the Bar of Trinidad and Tobago was sentenced to 7days imprisonment for contempt ; as later held by the^PrivyCouncil (13). the Juclge (of the High Court) had failed toobserve a fundamental rule of natural justice prior to makinghis order, and there thus resulted a. deprivation of libertyotherwise than by due process of law.-(which was afundamental right guaranteed . by the Constitution). . TheConstitution entitled a person to apply, to the High. Court fprredress in respect of a contravention of .that right: such anapplication was made by the Appellant the same day. resultingin a'stay order being granted by another High Court Judge.
• The matter ultimately came up before yet another Judge, who-dismissed the- application; and the Appellant served hissentence". He "had no right of appeal against the original order.'
. After serving his sentence, Tie applied to the Privy Council for,and obtained: , special, leave to appeal ; it was held on appealthat the; original order was bad. In.the meantime, he also-appealed to the Court of Appeal in respect of-the second order.(refusing redress), and, upon that appeal being dismissed,appealed .to the Privy Counci.l ,once .again. There "was nosuggestion-that the .original order was mad.e totally withoutjurisdiction, or in bad faith-;.it was an error in the course of the. exercise 'of.ithe-judicial'powen of the State.-Although the. original order was. wrong.'the judge who made :it enjoyedcomplete immunity from suit. The. .constitutional provision forredress (by the';High Court) in respect .of a contravention of afundamental right had," to be applie.d ; as the Appellant hadalready served; his-'sentence by the time the Privy Councilheard; the appeal, a mere reversal of the second order, or acleclaratiOn that it was unconstitutional, was no redress — as it■'certainly would have been had .the Appellant not served any.part of-the sentence. : –
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SCSaman v. Leeladasa and Another (Fernando. J.j
In that context, the Privy Council (by a .majority) held thatalthough the Judge, was immune, the State was liable to paycompensation, asthe Cpnstitutipn created a new liability
" .'. . /no change is involved in the rule that a judge cannot' be. made personally liable for what he has’done when actingor purporting to act in', a Judicial capacity. The claim forredress ….. for what has been done by a judge is a claimagainst the State for what has been done, in: the. exercise ofthe judicial, power of the'State. 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 li'abi I ity in thd publid .law .of the State,, not-of thejudge himself, which, has been newly created by . . .the' Constitution." ':
A further distinction was;dra'wn :f .
The: order of Mah'araj,. J.', committing the' appellant' toprison was made .by him'in the exercise ..of the. judicialpowers of the State ; the arrest and detention of. theappellgnt pursuant to the" judge’?, order was' effected by theexecutive arm of.the Stafei Sq<if his detentioaa.mounted toa contravention df his rights … . . . it-was a contraventionby the State against which he was entitled Vo p'rotection, ”
This decision did' not deal with} .’acts done ultra vires, or inviolation of directidns.. Further. although the Judge was'named-as a Respondent, he was-never served, and the matter proceededthroughout with the Attorney-General as the sole. .Respondent;this was held to be quite proper.
:If the Maharaj -principle applies, tp infringements of
fundamentaUrights under our Goristitujio.n.: it. must follow that ina successfuT,application under Article’) 26 the liability for. such. infringement is sdlejy. that. of the. State ; that such, liability isdirect, and. not vicarious or in any manner derivative ; .that the^immunity from. suit-of the actual wrongdoer is irrelevant; that,whether the wrongdoer; is-immune or not. liability is that of theS.tafe alone ; that the State is-liable f.or a;.deprivation of liberty by.executive action, where such action is consequent upon an
20
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infringement of fundamental rights by a judicial act : and that theAttorney-General is the proper Respondent in all such cases.
• Apart from my own doubts as to the applicability of that principleto the' very different .formulation of the fundamental rightsrecognised by our Constitution, and the remedy provided byArticle 1 26. I find that several other decisions of this Court areincompatible with that principle and its necessary corollaries.
Situations similar to the Maharaj case arose in Kumarasinghev: A.G.. (16) Dayananda v. Weerasinghe. (17) Fernando v. AG.J18) and Jayasinghe v. Mahendran. (19) Infringements offundamental rights were alleged to have resulted from judicialacts "while upholding the principle of judicial immunity fromsuit, this Court did not consider or hold the State to be liable. InFernando v. AG.-(18) there was a detention by a Prison officerconsequent upon a wrong order by a Magistrate.: a Bench of fiveJudges held that 'an officer of the State who violates thefundamental right of a person while carrying out a judicial orderis not liable if he acted in good faith not knowing the order to beinvalid. The reasoning in Lord, Hails.ham's dissent in Maharaj’ commended its.elf to my Lord the Chief Justice rather than themajority view. This decision may possibly be explained asconsistent with other aspects of the .Maharaj case on the basisthat the act of detention was ancillary to, and therefore part of.the judicial act. and was thus not really "executive oradministrative -action," within , the meaning of Article 126.However. Kumarasinghe vi AG (16) and Dayananda v.Weerasinghe (17) cannot be explained on that basis, for therethe judicial orders were the consequence of false and misleadingreports by Police Officers, and " executive action " vyas thus thecause of the detention.' '
Biit'even assuming'that'alMthose-decisions may be explainedbn the basis that the alleged'infringement-was not by " executiveor administrative action ". the Maharaj principle would yet castliability on the State in a case where the alleged infringement, was clearly by,executive action, although the alleged wrongdoerwas immune _Jr-onri suit’. When that'very situation arose inMailikarachchi v. Shiva Pasupati. Attorney-General (20),a Benchof five Judges held that a petition alleging-that a proscriptionordenmad.e by the1 President, underthe Emergency Regulations,
sc
Samanv. Leeladasa and Another (Fernando, J.)
. 21
was in violation of fundamental rights could not be entertained,because of the immunity conferred on the President by Article 35(1). While, agreeing that the President enjoys immunity from suit.Wanasun.dera. J.. held that having regard :to the. provisions ofArticle 35 (3) the Attorri.ey-General was the proper respondent.The other Judges held that' the impugned act did not relate to amatter coming within Article 35 (3). and therefore the Attorney-General was not the proper respondent in terms of that Article.The Court did not apply'the Maharaj Principle and hold that theact of the President (clearly " executive action ") in violation ofthe Petitioner’s fundamental rights would cast .liability on the’State, despite the immunity from suit of the President himself -1am therefore of the view that under Chapter 111, read withArticle 1 26. of the Constitution, no direct liability is cast upon theState in respect of a violation of fundamental rights, and that theprinciples enunciated in the Maharaj case are inapplicable to ourConstitution. Despite dicta as to their applicability!'-this. Courthas,, more often than not; .acted on the. contrary basis ; viewsexpressed in some decisions that the wrongdoer is also liable'represent an uneasy compromise- between sole liability bn theMaharaj principle and the principles of vicarious liability whichhave been repudiated.
Although several decisions of the Supreme Court of. the UnitedStates have been cited, particularly in the Velmurugu (3) Case,they do not establish that a violation of fundamental rights byaState officer results in direct, as distinct from vicarious, liability ofthe State. The corresponding American Constitutional provisionsare very different to ours, and the principles formulated in thosedecisions cannot Jae considered applicable to our Constitutionalprovisions Without close scrutiny. Six of the’-decisions .cited relate'to proceedings against State officers, acting .wrongfully and inexcess- of their authority, but the State was not held liable fortheir acts. The' Federal judicial power .was-held competent " toafford redress for the wrong by dealing with the officer and theresult of his exertion of power (21. 22. 23. 24, 25. 2.6), and notagainst the State. Indeed, it is doubtful whether any such theory. of State liability could'have been advanced on the basis of theConstitution, and the Amendments guaranteeing fundamental’ rights : it would appear that, the doctrine' of sovereign immunity
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was recognised (see also the Eleventh Amendment), so as topreclude a State being directly impleaded in respect of the actsof its officers. Even State officers may have been entitled to thatplea, and it was to mitigate the consequences of that doctrinethat a State officer seeking to enforce an unconstitutionalenactment is " stripped of his official or representative character,and is subjected in his person to the consequences of hisindividuel conduct " ; such " individuals who. as officers of theState, are clothed with some duty in regard to the enforcement of
the laws of the State, and who threaten;to
enforcean unconstitutional act. violating the Federal
Constitution, may be enjoined by a Federal court" (27.
28)
United States v. Classic (29) has been cited as authority for theprinciple that•
misuse of power, possessed by virtue of State law andmade possible only because the wrongdoer is clothed withthe authority of State law. is action taken under colour ofState law ”,
That was not a principle derived from an interpretation of anyConstitutional provision, but was simply an application of astatute making it an offence for anyone " under colour of anylaw " to subject another to the deprivation of Constitutionalrights.' •
Many of the principles developed in the. American decisionsappear to have been necessitated by the more restricted form ofprotection of fundamental rights — " Congress shall make nolaw , . ,", " No State shall' make or enforce any law . . .Consequently it has. been held in relation, to the FourteenthAmendment —
It is state action of a- particular character that is prohibited.
• Individual invasion of individual rights' is not the subject^matter of the amendment: " (30)
sc
Saman v. Leeladasa and Another (Fernando. J.)
23
Even the right of Congress to legislate was held to becircumscribed,.—
" It.is absurd to'affirm that', because the rights of life: liberty,and .property . .! . . are by the amendment sought to be
protected against' invasion’ on .the part of the state’ without ■due process -of law,'Congress may. therefore, provide fordue process of law for their vindication in- everycase -; that .Congress may establish laws for their ,■equal protection. In fine, the legislation which Congress isauthorised to adopt in this behalf is not.general legislationupon the-rights 'of the citizen, but corrective legislation. "■(30).■■;■■ " .■
Unfortunately, s.uch statements'appear; to have influenced theassumption in some decisions of-this Court’-that r– —
'- Chapter.3~on Fundamental Rights in ,our Constitution is
concerned -with public law" The protection, afforded is .against .contravention of these rights by executive oradministrative action of the State and its organs. " '(8)
'On the contrary, in truth our Constitutional guarantees offundamental rights are not only against State action, but evenagainst violations by individuals. (31) It may well be that in theUnited States the concept of " State " and " State action " had to,be broadly interpreted, as otherwise there mitjht: have been noother remedy for infringements of rights, but we face no such'difficulty.• •• ..-. i
…Under our Constitution, if the infringement is by" executive oradministrative action " the remedy is by petition under Article126'; if it-is hot by "executive .or administrative action ".thecommon law or .statutory remedies are avai lable. There i.s thus noneed to seek to strain, the .meaning of that expression, or toexpand the scope of .Article ; 126;. on the assumption thatotherwise there would* be no remedy. It is clear that even withoutArticle 126. common law remedies . would be available:otherwise in Gunaratne v. People's Bank (31.) no relief could havebeen granted. Article .126 does not define an;iihgredient of an
24
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infringement of fundamental rights : it merely ousts thejurisdiction of all other Courts and tribunals in respect of onecategory of such infringements, namely those committed by" executive or administrative action. " It follows that the'questionwhether there has been an infringement must be determinedindependently of whether such infringement was by executiveaction : likewise, the question whether such an infringement byan employee casts liability on his master, a master's liability foran infringement by his servant cannot vary accordingly as he is aprivate individual or the State : the same principle of liability —vicarious or otherwise — must apply. If in circumstancesconstituting a violation of Article 12 (3) a citizen'is refusedaccess to two neighbouring shops one privately owned, the otherState-owned — by a shop employee, and if the private ownerand his employee are sued for damages, and a petition is filedunder Article 1-26 against the State'and its employee, can it everbe contended that the principles to be applied to determine theliability of the respective owners,, and employees, would bedifferent ? If as Article-12(1) requires, all persons are entitled tothe equal protection of the law. can a person .discriminatedagainst by a private shop-owner's employee be differently treatedto a person discriminated against by a State employee ? I
I am unable to accept the submission .of Counsel for thePetitioner that the principles of liability applicable are these-laiddown in the' decisions m.Thadch'anamoorthi (7). Velmurugu (3)and Goonewardene v. Perera (8) :-the observations of Soza. J.. inthe. latter case were obiter, and.inthe other two cases it was heldon the facts that there was no infringement. Indeed, in all thecases in which infringements were established, the wrongdoerwas .^acting in-t;he .course–of. and within the scope of. hisemployment or duty; and the .State would thus have been liableon the ordinary-principles of vicarious liability. To that extent onlycould- the wrongdoer, be said to have been acting under colourof office"-, or-as an instrumentality of the State: Further,decisions.of.Benches of five Judges in Fernando v.rA.G. 0.8) andMallikarachehh v., Shiva Pasupati.. > Attomy-Genera! ;(10)necessarily involve-a rejection of the Maharaj principle of Stateliability. Im 'Kapugeekiyana's (6) case , too-there was no orderagainst- the State. Considering thau Chapter 1T1 of the
sc
c
Saman v. Leeladasa and Another (Fernando. J.).25
Constitution protects fundamental rights against infringementsby all persons, and not only by the State. I think that the questionwhether suc.h a right has been infringed by a Respondent, and ifso whether any other person is also liable in respect of. suchinfringement, must be determined by the-same legal principles.The principles whereby an employer or a principal is to be maderesponsible for the act of an employee or agent have not. been 'laid down ih'the Constitution, and hence must be determined by.reference to other (statutory or common law) principles .of ourlaw ; those principles do not.vary (except perhaps in terms of the.State (Liability in Delict) Act).. Questions relating to acts whichare ultra vires or done in violation of prohibitions, do arise, butthe,common law principles are sufficiently virile and flexible todeal with these. Tam conscious that, the time limits-fixed byArticle 1 26 may create difficulties-of proof, of loss or damage', butthe power of this Court under Article 126 (4) is extensive, andenables the Court to give appropriate directions (even after aninfringement has been held to have been committed) to obtainthe material necessary to quantify the loss or damage. '
A wrongful act — the" invasion of a right; or the violation of alegally protected interest— causing pecuniary loss fo‘ theplaintiff, committed wilfully; is sufficient to establish liability inthe Aquilian .action ; in the modern law. patrimonial loss need notbe proved where the .object of the- action is not to obtaincompensation for harm “done but to establish a right. Animpairment of personality— the violation of-:those interestswhich every man has. as a matter of natural right, in. thepossession of an unimpaired person, dignity'and reputation. arid'whether it- be a public or a private right — committed withwrongful intent establishes liability in' the actio injuriarum :patrimonial loss, as well as- damages for mental pain, sufferingand distress can be recovered (I).. When the Constitution.recognised the right set out in Article 11‘; everi ’if it was a-totallynew right, these principles of the common law applied, arid thewrongdoer who violated that right became liable ; and his ,master, toa if the wrong was committed in the course ofemployment, (b) it was not necessary for a'new delict to becreated by statute or judicial decision. The 1st Respondent isthus liable in respect of the infliction of cruel, inhuman'and
26
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(19891 1 SnL. R.
degrading-treatment and punishment on the Petitioner, for whichthe State is also liable as it was inflicted in the course, and withinthe scope, of his employment under the State.
The Petitioner is entitled to compensation in respect of theinjury, hospitalization, and pain, suffering and humiliation whichis not easy to assess due to the paucity of evidencg suffered byhim.; in view of the custodial relationship between the. 1stRespondent and the Petitioner, his conduct was high handed andin flagrant disregard of the Petitioner's rights. While I was at firstinclined to attempt t<? assess the damages under each of theseheads separately. I agree with my brother Amerasinghe. J.. thatthis is not desirable. I hold that the Petitioner is entitled tocompensation, which I assess at Rs. 1 5.000. together with costsin a sum of Rs. 1.500. from the 1st Respondent and the Statejointly and severally,>..
The Petitioner’s claim .against the 2nd and 3rd Respondentsfails, arid the application is dismissed as against them, withoutcosts. Their, conduct has been unexceptionable, and had theybe'en compelled to.retain .private Counsel,-we would have beenincl.iried to award them costs/
TEXTBOOK REFERENCES :
McKerron, Law of Delict. 6th ed; p. 78 iSalmond, Law ofTorts. 18th ed. p. 437 ; Halsb'ury, Laws of England, 4th ed.
■ vol. 1. : para, 192.-.
McKerron, Law of Delict. 6t'h ed. pip. 90-96-
,.McKerron. pp, 95-96.' 101 -2'; Street. Law of.Torts. 3rd ed,,-.pp. 444,475-6 ;Salmpnd/ pp. 404-5..
-(d) McKerron p, 102. nSalmohd p. 405.Street p. 476 ; Collettesv.-Bank of Ceylon. (1984) 2 Sri IvR. 253; 311-316.
;(e).Me-Kerrpn-, pp..%2.-. T1,49, .59'. ■
sc
Saman v. Leeladasa and Another fAmerasinghe. J.)
27
AMERASINGHE. J.
. I have had the advantage of-reading, the draft judgment of rnybrother, Fernando, J, and I. entirely agree'.with-his views.pn thequestion,of the burden of proof-in cases of this sort and thescope of the authority of prison guards. I am in completeagreement with hjs reasoning "and the conclusion which he hasreached with regard to the delinquent conduct of the First.Respondent and the liability of the State to pay compensation, tothe Petitioner. I also concur in dismissing the application againstthe Second and-Third Respondents and. agree with the order ofmy brother Fernando. J. with regard to costs;
I am unable, however, to extend my concurrence- to the legalreasoning, of my learned brother in the. expository, part of hisjudgment dealing with the manner in which the State becomesresponsible for the wrongful conduct of the First Respondent.' Iam also unable to agree that the"First Respondent is jointly andseverally liable with the State. I should.also l.ik'e to add.a word Onthe question of-compensation..’'
-Article 1 26-of .the .Constitution empowers the'Supreme Court,among other things, to grant such relief or'make such directionsas it may deem just and equitable where-any'person ajleges thata fundamental right- or .'language right recognised ' by'theConstitution and relating to such person has been infringed or isabout to be-infringed by executive or administrative action.
' Relief is only available in respect of an executive act. No relief
is available in respect of a legislative or judicial, act. (E.g. see;Peter Leo Fernando v. Attorney-General and Two Others. (18)Jayasinghe v.- Matjendran & others.. (19) Dayananda v.
WeeraSinghe and Others. (17.) In-l/elrhurugu v. Attorney-Generaland Another. (3) Sharvananda. J. said that. Article 126 " isdirected against the executive and is designed'-as a corrective forexecutive excess only. ”
The expression " executive’or administrative action ".has not’
. -been defined in the Constitution, but-it has been explained inseveral decisions of this Court. It is;clear that the words have not
28
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been narrowly construed to mean the acts of the President of theRepublic merely because Article 4 of the Constitution says thatthe executive power of the people shall be exercised by thePresident. " (See' Jayanetti v. The Land Reform Commission andOthers. (32) The expression embraces local as well as centralauthorities and includes any individual officer who exercisesexecutive functions of a public nature. (A.K. Velmurugu v. TheAttorney-General and Another. (3). As Atukorale. J. observedin Rajaratne v. Air Lanka, (33) :
An examination of our decisions indicate, that thisexpression embraces actions not only of the Governmentitself but also of organs, instrumentalities or agencies of theGovernment. The'Government may act through the agencyof its officers, li may also act through the agency of juridicalpersons set up.by the State by, unde'r or in accordance witha statute."
In S., C. Perera v. University Grant Commission', (12)Sharvananda. J. said.that’:
" ,ln the context of fundamental rights, the ' State ' includesevery repository of State power. The expression * executiveor administrative action ’ embraces executive action .of the.State or its agencies or instrumentalities exercisinggovernmental functions. It refers to exertion of State power. in all its forms. "
-Justice Sharvananda guoted these words two years later inNimal Tissa Wijetunga v.- The Insurance Corporation of Sri Lanka.(34)-
In-the Velmurugu vase (supra) at pp. 224 in fin. — 225 (3)Sharvananda. J. said : . r
29
SCSaman v. Leeladasa and Another (Amerasinghe. J.)
"The 'Executive' may be broadly defined as the authoritywithin the State which administers the law. carries on thebusiness of the Government and maintainS’Order within andsecurity from without the State ….. Executive functionsthus include, in addition to execution of the law, theconduct of military operations, the provision of supervisionof such welfare services as education, public healthtransport etc. ",
It has been decided that the Police (see Mariadas Raj v.Attorney General, (10) ; Vivienne Goonewardene v.'Hector Pereraand Others (8) Amal Sudath Silva v. Kodituwakku Inspector ofPolice and Others, (35) the Janatha. Estate Development Board;(see G.A, Eheliyagoda and• Others v; Janata Estate DevelopmentBoard and Others'. (13)- the University Grants Commission (seePerera v. University Grants Commission, (T 2) the People's Bank(see Ariyapala Gunaratne v. The People's Bank, (31) MunicipalCouncils (see Roberts v. Ratnayake. (36) and Air Lanka (seeRajaratne 1 v. Air Lanka. (33) dre state agencies orinstrumentalities for the 'purpose of exercising executive oradministrative action within the meaning of Article 1.2.6 of theConstitution. ■
However, not every p.ublic institution is such an agency orinstrument of Government. It has been held, for instance that theInsurance Corporation of Sri Lanka (see Wijetunge v. InsuranceCorporation of Sri Lanka, (34) and the'National Paper Corporation(see. P, G. Chandrasena and Others' v. National Paper Corporationand Others. (37) are not Government agencies having therelevant capacity for executive 'or administrative action. Thequestion whether the University of Colombo- (see GunasenaThenabadu v. University of Colombo and Others (38) and the Bankof Ceylon are government agencies (she Gamini Samarasinghe v.Bank of Ceylon and' Another) (39) has been raised but leftundecided by this Court.
In the matter-before us.ithe First Respondent is a Prison Guard,the Second Respondent is the Chief Jailor of the Galle Prison and.the Third Respondent is the Superintendent of the Galle Prisonand the Fourth Respondent (who was later dropped from the
30
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(198911 Sri L. R.
proceedings) was the Commissioner of Prisons. They are. likePolice Officers, officials of a Government Department — thePrisons Department — concerned with- the vital function of lawenforcement. They are all persons who exercise executivefunctions of a public nature arid, therefore, have the capacity toperform executive or administrative acts within the meaning ofArticle ‘ 1 26 of the Constitution.
However, it is not every act of a public official that would' amount to executive or administrative action within the meaningof Article 1 26 of the Constitution. Where in the circumstances ofa case an act is' to be considered purely as a private act of theperson concerned and not as an official act. such an act wouldnot constitute executive or .administrative action which wouldopen the way to relief in terms .of Article 1-26 of the .Constitution.(Cf. per Wanasundera.. J. in A/yathurai Thadchapamoorthi's v.Attorney-General and Others. Vadivel Mahenthiran v. AttorneyGeneral and Others. (7): per Wanasundera, J. in A.K. Velmuruguv: The. Attorney-General and Another, and per.Sharvananda. J. inVelmurugu's case at p. 230 (3) ; Sharvananda. J. in Perera v.University Grants Commission.. (12): per Sharvananda. J. inNimal Tissa Wijetunge v. The Insurance Corporation of SriLanka. (34).
•
Where the act of a public officer is expressly authorised by theStale it has been said that..such an act would be an executive oradministrative, act within the'meaning of Article 126 of theConstitution. JSee'l//V/enne Goonewardene v. Hector Perera and- Others. (8) Such cases are no.doubt fare, for as Wanasundera. J.says in Thadchanamoorthi's case (supra) at p. 1 37 fin: — 1 38.:.
.l.t.seems extremely improbable that a government wouldopenly authorise: acts of torture or such other cruel ordegrading treatment or punishment unless in war time or .inemergency situations. "
There was no express, authorisation in this case.
. There will be, executive; or administrative action not o.nlyjf theact in question was-expressly authorised by.the State.' but also if
sc
31
Saman v. Leeladasa and Another (Amerasinghe. J.j
the State impliedly authorised it or adopted or condoned oracquiesced in that act.-(Cf. Viviepne Goonewardpneis ca.se.(supra), at p.,436 fin. —.437). These cases are few and farbetween, although, perhaps rather more frequent than'those inwhich the acts complain,ed of are, expressly authorised. AsWanasundera. J. in Thadchanamoorthi's case, (supra) explainedat p. 138
It is more likely that a government may covertly sanction. • such illegal acts or connive, in the, perpetration of suchacts, or sanction them or tolerate them to such- an' extentthat they become.virtual administrative practice,-
This must'not be. construed to'mean that' an administrativepractice must – always -be 'proved' in-order' -to – establish-acquiescence. Approval of even an isolated act would besufficient-(see. the-l/elmurugu case,, (supra), per- Shar.vananda,.J. at p. 231 fin.): Moreover, where the act has been expressly orimpliedly authorised there .will foe executive or administrative-action even if the officer concerned used, some unauthorised,mode of doing-the'authorised action. There-was- no impliedauthorisation in this-case.–
If the- act of a public officer has not been, expressly orimpliedly authorised Or adopted or condoned or acquiesced>inbyT the! State, would it be executive or'administrative actionmerely’ because it 'Was the ddf of a high officiaI ? Jn thel/elmurugu case, (supra), at'p.2T 2 Wa'nasund'era. J. stated thathe was-" inclined to the viewthat the State should be heldstrictly, liable for any acts'of its high state'officials."With greatrespect. I think the proposition was somewhat too. widelystated- If a-police officer .raped a woman, after arresting her andtaking her. to the. policeistation. would that be executive and.administrative action'? I believe that Wanasundera, J..would not
i ' ••'•.*.t *'••"
have-drawn-any. distinction between, a rape comrriitted by ahumble constable .and such a, transgression by a high rankingpolice officer.-Indeed,'Wanasundera, J. in Veimurugu's case.
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f1989/ 1 Sri L. R.
(supra) at p. 206 fin. —207 makes no distinction between highand low officers of the police when he said :
Mr. Pullenayagam relied heavily on the above passagefor the submission that acts or omissions on the part of apolice officer done under colour of office or in thepurported exercise of his powers would involve the Statein liability. Nevertheless he made a significant concession,namely, that there could be acts which can be regarded asan individual'or personal act not entailing liability of theState. As an example he gave the case of a police officerarresting a. woman, then taking her to the police stationand reping her
Ip the same case (supra). Sharvananda. J. at p. 224 said :
The idea underlying Article 126 is that no one by virtueof his public office or position should deprive a citizen ofhis fundamental'rights without being amenable to Article126, even.^though 'what tpe: official did constituted anabuse of power, or exceeded the limits of his authority.This sweep of State action, however, will not cover acts ofofficers-in the ambit of their personal pursuits, such asrape by. a .police officer o.f a woman in. his, custody ascontended by the Additional'Solicitor-General ; such acthas no relation to the. exercise of the State power vested in.him. Thp-'officer had taken advantage of the occasion, butpot.his office for the satisfaction of a personal vagary. His.conduct .is totally., unconnected with any manner .ofperformance of his official^functions. " (The emphasis ismine).
The test'of'liability relates to the- performance or purportedperformance of his official duties and not his rank or position inthe" Official hierarchy. Was it done under colour of office ? If theact. was done Within'the scope of the express'or implied scopeof the''authority of the public’officer concerned, there isexecutive Or administrative actioH'in the relevant sense. (Cf.-per
sc
33
Saman v. Leeladasa and Another (Amerasinghe. J.)
Cs
Wanasundera.. J. in (Velmurugu's case, (supra), at p. 212 ; perSoza. J. in (Vivienne Goonewardene's case, (supra),- at p. 433).There would be executive or administrative action.even if the actsin question were unauthorised provided they are so connectedwith the acts that have been authorised that this may beregarded as modes, although improper modes, of doing them.
However, if the unauthorised and .wrongful act of a publicofficer is not so connected with an authorised- act as to be amode of doing it,, but is an independent act, there is no.executiveor administrative action .'for in such'a case the officer -is notacting in the performance of his official duties but has goneoutside of it. He can no longer be said to be doing,..although in awrong and unauthorised way. what he was .authorised to do. Heis doing what he was not authorised to do at all. There is noexecutive or administrative action merely because the act wasdone at a time when the officer was engaged in official business.To become executive or administrative action within the meaning'of .Article, T26 jpf the Constitution..the act must be done in thecourse of that business so as to form part of it. and not be merelycoincident in time with. it.
Although Senior State Counsel maintained .that the FirstRespondent was acting in an unauthorised manner and was.therefore, not acting iti the performance of his duties/ the FirstRespondent in this case was not in my view acting privatelyduring the time he was on duty. His assault was an unauthorisedor unlawful act but one which was so connected with his dutiesas a Prison Guard and in the exercise of the powers conferredupon'him and in the performance of the duties he was given bySection 10(1) and Section 1.3 of the Prisons Ordinance (Cap. 54L.E.) arid by Rules 121. and 155 of the Prison Rules framedunder the Prisons Ordinance '(Vo I; I Subsidiary Legislation) thathe was acting, within the scope of his duties and within the scopeof .his powers and was therefore performing an executive actwithin.the meaning of Article 1 26 of the Constitution. He abusedhis powers when he laid violent hands upon the Petitioner.for’.thepurpose of or.for the honestly purported purpose of furthering
34
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11989/ 1 Sri L. R.
his authority to maintain discipline and the State must thereforebe held liable for his wrongful conduct.
In the Velmurugu case, (supra), at p. 224. Sharvananda. J.said •
If the State invests one of its officers or agencies withpower which is capable of inflicting the deprivationcomplained of. it is bound by the exercise of such powereven in abuse thereof: the official position makes the abuseeffective to achieve the flouting of the'subject's fundamentalrights. The State had endowed the officer with coercivepower, and his exercise of its power, whether in conformitywith or in disregard’ of fundamentaj rights constitutesexecutive action. The official's act is. ascribed to the Statefor the purpose of determining responsibility, otherwise theconstitutional prohibition, will have no meaning.-"
Soza, J. in Vivienne Goonewardene's case, (supra), at p. 437cited and ‘followed Sharvananda. J.'s explanation of theprinciples on which liability for .infringement of fundamentalrights is imputed to the State.
Where there is' no express or implied authority, the act of apublic' officer. may • nevertheless be regarded as executive oradministrative action if it could be inferred from thecircumstances that the act was done with the intention of doinggood to.the State and not for his own purposes. In such a case ofostensible-, .authority it may be no defence that the officerconcerned was acting beyond his power or authority and even indisregard of a prohibition or special direction provided, ofcourse, that the act was incidental to what the officer wasemployed to do-.-
Wanasundera, J. in Velmurugu's case (supra), at p. 212 said :
' -The liability in respect of subordinate officers should applyto '.all acts done under colour of office! i.e’.. within the scope1 of their-authority express or implied, and should also extend
SCSaman v. Leeladasa and Another (Amerasinghe. J.)35
to such other acts that may be'ultra vires and .even indisregard of a prohibition or special directions providedthat they are done in furtherance or supposed' furtheranceof their authority or done at .least with the intention ofbenefiting the State. "
I agree with my brother Fernando. J., for the reasons he hasgiven, that the ■ Petitioner's attempt to show that the FirstRespondent was acting with, the intention.of benefiting the Statemust fail. It was, I think, an ex post-facto pretence On his part.Perhaps it was an inspired fabrication. ?‘
. My brother Fernando, J.. arrives at his decision- on the'
• question of responsibility by way of the Law-governing vicarious-liability, and regards-the petitioner's rights to compensation asone of- several common law rights in the field of'delict.'This'seems to have been the approach favoured by Lord Hailsham of .St. Marylebone – in his – dissenting -judgment in Maharaj v. •'Attorney General of Trinidad and Tobago. (No. 2). [1978] 2 AllE.R. 670 especially at p. 687 and p. 688 (1) : However, ourCourt has preferred to treat.a violation of a fundamental right assomething suigeneris created by the Constitution and not as adelict. Their Lordships-of the Supreme Court have consistentlysteered away from the vicarious liability approach.
• •v.
In Velmurugu's case, (supra), at p. 210 Wanasundera. J. said :
The learned Deputy Solicitor-General sought to advance-his-argu.ment further by relying oh certain decisions relatingto vicarious liability ofaa master for the acts of his servant inthe sphere of the -law of tort. Tam in agreement withMr. Pullenayagam that the test of . liability formulated inthose cases is not an appropriate or safe test for applicationin the present case. We are here dealing with the liability ofthe State under.publie law, which is a new liability imposeddirectly on-the State-by the constitutional provisions. Whilethe.decisions relating to the vicarious liability of a master for
v
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the acts of his servant may be useful to the extent that allcases where, a master can be held .liable in tort would• undoubtedly fall-also within the liability of the State underthe constitutional provisions, the converse need not be trueunless we are to give a restricted interpretation to theconstitutional provisions. The common law test of tortiousliability therefore cannot provide a sufficient test and wehave to look elsewhere for the appropriate principles! "
Soza. J. in Vivienne Goonevyardene's case, (supra), at p. 438expressed a similar view. He said :
" The nature of the liability has been- neatly explained byLord Diplock in the Privy Council decision in Maharajv. The, Attorney'-General .of Trinidad, and, Tobago. No. 2 — [1979)
■ ' A.Cr-385, 399 (1) —. in the following words :
‘ This is not vicarious liability ; it is a liability of theState 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. ’n '.
Lord Hailshamof St. Marylebone .in his minority judgment in, , this case did not agr.ee with this formulation because hefound it ' difficult to accommodate, within the concepts ofthe lavv a type of liability, for damages for the wrong of.- another when the wrongdoer himself is under no liability at• "'all the wrong itself'is not a tort or delict. ' His Lordshipfound it equally difficult to understand that this was ' some. ' • sort 1 of primary liability. ' But what Lord . Diplock was• -emphasising was that this was a new liability in public law- created: by the Constitution, of Trinidad and Tobago, riot to. ;be-.-,oonsidered from the ■ angle, of- the existing bases of. liability. In Sri Lanka too our Constitution has. created a new'..liability impublic law.; ” '. .. . … •
..; Thi.s.yiewi'is. aIsQ.supporte.d by the decision of. Sharvananda. J.(with whom .Batwatte. J. agreed) in the Velmurugu case (supra).In-.that case ,(op. c/'r. p. 224) Sharvananda. J..says :
37
SCSaman v. Leeladasa and Another (Amerasinghe. J.)
" It is., to be noted that the claim for redress under .Article ■1 26 for what has been done, by an.executive officer of theState is a claim against the State for what has been done inthe executive power of the State. This is not vicariousliability : it is not a liability in tort at all ; it is a liability in the-public law of the State' — vide (Maharajv. Attorney Generalof Trinidad [1-9,78] 2 AER 670 at 679 PC). "
These words were quoted with approval by Sharvananda.J. in-Mariadas Raj v. Attorney-General ; and Another, (10).
In Ganeshanath.an v, Vivienne Goone.wardene and ThreeOthers. (40). Ranasing.he. J: said :
•the nature of. the liability incurred upon -an infringementof a fundamental right by a State Officer and the real basisupon which relief or redress is granted to him.has been setdown by.'Lord Diploek in the'- Privy Council in the"case- of. Maharaj v. The Attorney General of Trinidad'and'Tobago as:
' This is not vicarious liability, it' is liability of.the Stateitself. It is nbt a liability in tort at all. it is the liability inthe public law Of the State … • • • 'This view-of the.
' underlying principie has also'been hitherto followed. by this Court. "-•/*•''• *
The fact that the agent of the State is required by Rule 66 ofthe Supreme Court Rules to be named in a petition for relieffor violation of'Fupd.amental .Rights is ,not an indication thatthe State Ts vicariously liable for the act of the wropgdoer. Theidentity Of the alleged -transgressor is.'as explained byRanasinghe. J…in the, Ganeshanathan^ case (supra) at p. 35.1-infin..;-— 3.52; required fpr two. purposes : (1) Before liability ", is-brought home to-the .State, it is-necessary .for the aggrievedp.ersons,,to. establish ..thaj* his fundamental right has , beeninfringed by an executive ©/ administrative act: Any such acthas to be..committed by a State Officer,or by-any-,Other person;who c.ould. .be held to, be an organ of, the State. It is onl.y od .
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(1989) 1 Sn L. 8.
account of such an act by such an individual that the liability castupon the State would arise. It is in recognition of this positionand this principle that Rules 65 (1 )-(a) and (b) and 65 (4) (ii). inparticular, have been framed in the way they have been framed. "(2) The naming of the Respondent and his presence in Courtenables the State and the alleged wrongdoer, who will be givenparticulars of the petitioner's claim, to defend themselves. (Seealso per Samarakoon, C.J. in the Ganeshanathan Case, (supra), atp. 331).
This is all there is to it and as Ranasinghe. J. observed inK. Visvalingam and Others v. Don John Francis Liyanage, (41)
The act or acts in respect of which relief is sought are acts■ of the officers of the State. The relief granted in .the ultimateanalysis is an award against the State. "
■ Lit is therefore .the State that is liable to pay compensation tothe Petitioner'.-(See Vivienne Goonewardene v. Hector Perera andOthers (,1 983).tFundamental Rights Decisions 426. at p. 440 (8).Although in. Mariadas Raj v. Attorney-General and another.(J 983). Fundamental-Rights Decisions. Vol. II. 397 Sharvananda.J. at p. 404 (10) said that "The relief granted is. principallyagainst The State, although.the-delinquent official may also bedirected to make amends and/or suffer punishment ", he wenton to direct [ibid. p. 408) the State to pay compensation to thePetitioner. As . Wanasundera. ■ J. said . in Ganeshanathan v.Vivienne Goonewardene and Three Others.
"A proceeding under Article 126 is'against the State andthe State has’to bear the liability for unlawful executive or/J administrative action. "
It was the-State-that was ordered to pay compensation in AmalSudath- Silva v. KddituwaEtu, Inspector of Police and Others. (35).Ahd; so it was in Nallanayagam- v. Gunatilldkeand Others.'(15)'and‘serhb/e ih Elmore Perera v. Major Montague Jayawickramaand Others, 1985 1 Sri- L.R7 285 per Wimalaratne. J-. afp. 364arid !per Colin-.Thome. J. at p. 3.90-''(42)."I arri conscious of thefact that in Ratnasara■ Thero v. Udugampola.- j1 T); Kapugeekiyaha
sc
Saman v. Leeladasa and Another (Amerasinghe. J.)
39
Hettiarachchi. ..(6) and in Rajaratne v. Air Lanka. (33) theawards were against the agent of the State. However, I would,with great respect, prefer to follow the decisions' in VivienneGoonewardene. Mariadas Raj. Amal Sudath•• Silva• andNallanayagam and make order in. this case with regard to thepayment of compensation against the State.
My brother Fernando. J. holds that the State' and FirstRespondent be held'jointly and severally liable. This is the correctform of an order in an action' based on delict where joint tort1feasors are jointly, and severally-liable for the whole damage, andtaking; the view he does of the nature of fundamental -rightsactions, namely that they are delicts,, he may. for the sake ofconsistency, feel constrained to make the order in the form inwhich he makes it. However. I do not find any decision in ourLaw Reports which supports such a practice in. relation to anaward of relief made in terms of Article 126 of the.-Constitution ;and. making the State and First Respondent jointly and severallyliable is unnecessary in the context of the bases of .liability as Isee them.t.. – . ..-
It is entirely consistent with, the view that what is involved isState liability that even where-the .agent of the Statehs mistakenlyidentified in the Petition for redress.to this Court for an allegedviolation of a Fundamental-Right, the State is nevertheless liableif it is established to the satisfaction of the Court that the act inquestion was-jn fact-done.by a State official,- Hence. the fact thatthe wrong Secretary..to a Ministry had been named did not endthe. proceedings m.Katunayakage Damesius Perera. and Anotherv. R. Premadasa: and Others. (43). Nor di.d-the fact that a. policeofficer . other than the, one named as,- -a respondent wasresponsible for a wrongful arrest or detention' in-violation of theFundamental Rights of.a Petitioner, stand-in.the, way of redresswhere the Court vyas -satisfied that the- act was that- of some,police officer and, therefore. Sjate..action..(See per Samarakpon,C.J. in Ganeshanathan v. Vivienne. .Goonewardene. and threeOthers,i. (40).. See also Mariadas: Raj. v. Attorney General .andOthers. (10),-,..
If a right created by the Constitutions of 1 972.and' 1 978 is sui
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generis, does it mean that an old right under the law co-exists ?In the Kapugeekiyana case at p. 166 Wimalaratne, J. said that therights of suspects already enjoyed by them " have now beenmade constitutional rights." And Soza. J. in VivienneGoonewardene v. Hector Perera and Others. (8) says :
" Fundamental rights were secured and guaranteed even in-the 1972 Constitution but no special machinery for: ' enforcement was provided. The Constitution of 1 978 spellsout in detail the Fundamental Rights it recognises and it hasprovided a special forum and special machinery forenforcement and for the grant of relief and redress. But theold forms of procedure and the old remedies still co-existwith the new. "
Does it mean that now..,in certain circumstances, there are tworemedies, one, a remedy in the sphere of public law and anotherin the sphere , of public ? Is. it open to .'a party to obtain reliefunder both remedies ? It is interesting to note in this connectionthat the •Constitution of Trinidad, and Tobago, which was thesubject of interpretation in the Maharaj case. (supra), and quotedby Wanasundera. J. in the Velmurugu case, (supra), at p. 201firit. expressly provides in Article .6.11 that the ConstitutionalRights are " without prejudice to any other action with respect tothe same matter which is lawfully available? "
.* ^ _ ■**
If two remedies are available in our law also, what is the effectori the quantum of compensation? The provisions of theConstitution , are. supposed to’provide a speedy and efficaciousremedy. ‘(See Palihawadana ■ v.Attorney-General and
Others. (44) : Velrriurugu's case, (supra),: at 223). The remedy isspeedy becausie the: short time: limits prescribed by theConstitution are rigidly enforced. (See Edirisuriya v. Navaratnamand Others. (45) ; K.S.S.E. Ranatunge v. A.R.M. Jayewardene andOthers: at pf 80 (46); Thadchahamoorthi's case, (supra) at p. 134fin. ; Jayewardene v. Attorney-General and- Others. (47) ;Vivienne.Goonewardene v. Hector Perera and Others, (supra) at p.440 : Jayanetti's case, (supra) at p. 1 92 ; Siriwardene v. Rodrigo:(48) :- Viswalingam v., Liyanage and Others (49). However, aspeedy remedy may hot be always the most efficacious.
41
SC
Saman v. Leeladasa and-Another (Amerasinghe. J.j
If the proceedings in this- Court are final and preclude furtherproceedings elsewhere, would it not be unfair by a party whosedamages cannot be assessed-within the time prescribed-by theConstitution for hearing and determining thfese matters ?'Andwhat Of prospective loss ?
These are questions, ancT no doubt there are necessarilyothers- that have not been discussed-before us in this case, andwithout the benefit of a sufficient argument -by Counsel I am.naturally, reluctant to express .even a tentative opinion. IfPandora's box is to be opened. I should, with great respect, in the '.. name of Hope remaining, submit that a fuller bench be invited to •" consider the remedies for the-ills that might have escaped.-For. the purpose of guiding me to-a decision in the present case. I-think the principles enunciated by this Court, and the helpfulb/cta that have been expressed-from time to time, are more than;-sufficient, and I domot wish to wittingly depart from them. Nor doI wish to make, large generalisations about such principles anddicta because no light I think will be.shed on this case by doingso. Indeed," it may be improper for"me to do so. (Cf. per Dixon. J.in Victoria Park Racing and Recreation Grounds Co, v. Taylor (50).
I must now turn to the question of compensation. LordEvershed-, MR in’ Nimno-'Smith v. Burgess Garages Ltd., andLondon County Council. (1958) C.A.-iquoted in Kemp and Kemp,.The-Quantum of Damages,-. 1961., .-2nd Edr. Vol.. I at" p.." 1 59observed-that —'‘;.
" The subject-matter of estimation is very much what mightbe called a series of imponderables ; and that, of course,makes anything in the way of an assertion about what'the": right figure, is a'precari'dus matter. "
I make-no assertion about the total sum decided upon by my.brother Fernando, j.-1 agree, that a sum of Rs. T5.000 should beawarded to the petitioner..
c Some amount iLseenris must be awarded if there has been aninfringement-of a; Fundamental Right which is. regarded as a
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delict. Even nominal damages must be awarded in a case ofinjury without damage — injuria sine damnum, for it is practicallythe only judgment that is appropriate in such a case, althoughadmittedly in technical terms the law requires not damage but aninjuria or wrong on which, to base a judgment for the plaintiff. "(See Mayne and McGregor on Damages. 1 2th Edition, at p. 191et seq.).
However, -if the violation of Fundamental Rights constitutesnon-delictual wrongs, then damages need not be awarded incertain cases. And. indeed, our Court has sometimes declared aviolation.to have taken place and ordered something to be doneor not to be done or declared something to be the case as therelief it grants under Article 1 26. This was what Wanasundera. J.proposed in the Elmore Perera case at p. 342 fin. — 343. Thiswas also the relief in. Laxamana and Others v. G.P.S.Weerasooriya. General Manager of Railways and Another. (52) ;Perera v. University Grants Commission. (12) and Eheliyagodaand Others v. Janatha Estate Development Board. (13). It was alsothe case in Jayanetti v. The Land Reform Commission. (32) and inGooneratne and Others v. Chandrananda de Silva. Commissioner-of Elections. (53).
•.When, in an appropriate.case, compensation is awarded forthe violation of a Fundamental Right, it is. I think, by way of anacknowledgement of regret and a solatium for the hurt caused bythe violation of a fundamental right and not as a punishment forduty, disregarded or authority abused. (Cf: per Lord Carmont inM'Leish v.' Fulton and Sons. (54) and Weld-Blundell v. Stephens(55).;
Even if the act were a delict, punishment is ah irrelevantconsideration. The cases point to a rationale not of punishmentof the defendant but of extra compensation for the plaintiff for'the injury to his feelings and dignity. In1 Cassell & Co. Ltd. v.Broorhe & Another. (56) Lord Diplock said :
In common law weapons to curb abuse of power by theexecutive had not been forged by the mid-eighteenthcentury. In view of the developments.-particularly in the last
sc
Saman v. Leeladasa and Another (Amerasinghe, j.)
43
20 years, in adapting-the old remedies by prerogative writand declaratory action to check unlawful abuse of power bythe executive, the award of exemplary damages in civilactions for tort against individual government servantsseems a blunt instrument to use for this purpose today. "
Civil action are concerned with reparation rather thanpunishment (See Rookes v. Bernard,' (57) Fielding and Another v.Variety Incorporated. (58) and per Scarman L.J. also at p. 500 in .fin ; and the Cassell's case, (supra). In a case such as this wherethe First Respondent was guilty of outrageous behaviour, it is nota punitive element that must enter into the enhancement of'compensation payable, but the need to assuage the Petitioner'shurt feelings by a recognition of the enormity of the wrong■complained of. What is- so.ught to be done by increasing theamount of the award is to give the Petitioner the consolation of •knowing that this Court acknowledges the seriousness of theharm done and that it has tried to establish some reasonablerelation between the wrong done and the solatium'applied. (Cf.per Hamilton L.J. in Greenlandsv. Wilmshurst{59).
It js the Petitioner's point of view that is relevant. Thus in theVelmurugu case, (supra). Sharvananda, J. commented oh the fact.that the case disclosed " a shocking-and revolting episode in law .enforement " and ordered the State to pay compensation "forthe • distress. humiliation and suffering undergone, by thePetitioner" as a result of the cruel, inhuman and degradingtreatment meted out to him. .
As far-as the delinquent officer himself is concerned, the Courtmay. in an appropriate, case, .as it did in Vivienne Goonewardenev. Hector Perer.a. and Others, (supra), at p. 440 and asSharvananda and .Ratwatte J.J: did in the Velmurugu case/
disciplinary action. Such action has been, already'taken in thecase before us and therefore we make no direction with regard tothat matter.
In Daramitipola Ratnasara Thero v. P Udugampola arid Others.
(supra), at- p. 242,direct the
rl i c r* i r 11 o a rv/ aoti An CiVi^K o/h+i/m
authorities concerned to take
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(11) Abdul Cader. J.. (Wimalaratne. Ratwatte. Colin-Thome andRodrigo JJ. agreeing) said :
In my view this is a serious violation of the fundamentalfights of a citizen of this country which calls for the awardof substantial damages. A mere declaration without more in' the form of some penalty . . . will not deter such future' abuse of fundamental rights of citizens. "
With the greatest respect I am unable to agree that deterrenceis a relevent element in the assessment of compensation in aFundamental Rights action. Being as they are actions against theState, an attempt by this Court to punish the State would. I think,be imprudently venturesome. To attempt to deter it would behopelessly futile, for the State, in truth. I believe, has a longpocket, the depths of which we myst know, if we are to make ameaningful, punitive award. It is extemely unlikely that we shallever know the deepness of the treasury pocket and it is thereforehardly ever likely that we would be so placed as to make a proper,assessment of punitive damages. It behoves us also to bemindful of the fact that large awards will only increase theburden of the tax-payer and that of the ordinary man in the streetto whom the burden of the tax-payer will, lamentably, be passedon eventually. Therefore, we need to act with restraint inawarding compensation in these matters.
The variety of the matters we have to consider in assessingdamages for a violation of fundamental rights means that averdict in such a case with regard to the amount to be awardedis the product of a mixture of inextricable considerations and.therefore, in-expressing it.-a sebarate assessment of the variouselements, ought not to be made or disclosed. (Cf. per Vindeyer.J:. in Uren v. JohmFairfax & Sons Pty Ltd., (60) quoted withapproval by Lord Hailsham 'in Cassell 8t.Co. Ltd. v. Broome andAnother (56). LordHailsham (ibid)said :
;':The .next; point to notice, is that it has ..always'rbeen aprinciple in English Law that the .award of damages whenawarded must be a single lump sum in respect of eachseparate cause of action. Of course, where part of the
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Saman v. Leeladasa and Another (Arherasinghe. J.)
45
damage can be precisely' calculated,1 it is possible anddesirable to isolate part of it in the same cause, of. action.
It is also possible and desirable to isolate different sumsof damages receivable in different torts …. But I mustsay I view with distrust the arbitrary subdivision -ofdifferent elements of general damages for the sametort… In cases, where , the award of general damagescontains a subjective element. I . do not believe it isdesirable or even possible.simply to add separate sumstogether for different parts of the subjective element,especially, where …. . the subjective element relatesunder different heads to the same factor, in this case thebad conduct of the defendant. I would think with LordAtkin in Ley v. Hamilton (.61.)=:
." The punitive element is not-something which is orcan (the italics are mine) be added to- some knownfactor which is non-punitive.,
In other words the. whole process of assessing damageswhere they are "at large" is’ essentially .a' matter ofimpression and not addition. When exemplary^damages.are involved, land even though, in’theory at least, it may bepossible to winnow Out the purely punitive element, the 'danger of double counting,by a jury or. a.judge ar.e sogreat-that. even,to avoid a new trial, Lwould have thought-. of the dangers usually, outweighed the;advantage's. " –
Fordhe reasons' stated in /my' judgment,’ I make order”asfollows
l
The First Respondent acting within the scope of. hisduties and acting within: his powers ‘violated the ■
, fundamental, rights of' the Petitioner .guaranteed* ‘byArticle 1 1. of the Constitution by subjecting ‘ him tocruel, inhuman. or..degrading treatment or punishment'
'(2) ■ The State shall be liable to pay a sum of Rs. 1 5,000 tothe Petitioner by way of compensation ; •
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Costs shall be paid as ordered by my brother.Fernando. J.
Application allowedCompensation ordered