008-SLLR-SLLR-2003-V-2-SRIYANI-SILVA-v.-IDDAMALGODA-OFFICER-IN-CHARGE-POLICE-STATION-PAIYAGALA-.pdf
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Sriyani Silva v. Iddamalgoda, Officer-in-Charge, Police Station
Paivaaala and Others (Fernando. J.)
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SRIYANI SILVAv
IDDAMALGODA, OFFICER-IN-CHARGE, POLICE STATIONPAIYAGALA AND OTHERS
SUPREME COURTFERNANDO, J.
YAPA, J., ANDJ.A.N. DE SILVA, J.
SC NO. 471/2000 (FR)
13TH JUNE AND 14TH JULY, 2003
Fundamental Rights – Death by torture of person arrested by police – Right tolife – Articles 11, 13(2), 13(4) and 17 of the Constitution – Right of heirs ordependants to complain against violation of rights – Purposive construction ofArticle 126(2) read with Article 4(d) of the Constitution.
The petitioner is the widow of an army deserter (deceased) against whomthere was also an open warrant signed by the Magistrate for possession ofillicit liquor and distilling equipment.
On 12.06.2000 the 2nd respondent OIC (Crimes) Paiyagala Police Station,arrested the deserter and took him to the police station where he was detaineduntil the 17th. The petitioner and deceased’s mother and sister stated that theyvisited the deceased on 12th, 13th, 14th and 15th and observed the deceased
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being assaulted and with serious injuries. The deceased also told them that hehad been assaulted by police officers. On the 15th the deceased’s sister com-plained to the Assistant Superintendent of Police, Kalutara. The police pro-duced the deceased before the Magistrate on the 17th which was a Saturdayand he was remanded until the 29th and sent to Kalutara prison from wherehe was transferred to Welikada remand prison on the 18th where he died onthe 20th.
According to the post-mortem report the deceased had twenty injuries on allparts of the body, his head, chest, abdomen and every section of every limb.His upper right arm was swollen and black. The cause of death was “acuterenal failure due to muscule cutaneous trauma”.
According to the police, the deceased was arrested on the 16th after using rea-sonable force. They denied assaulting him as alleged.
On 18..07.2000 an attorney-at-law had filed the application on behalf of thedeceased when in fact it was the wife who had given instructions. When theapplication was supported on 23.8.2000 the court was informed of the facts,namely that the instructions given were to pursue the application for compen-sation to the dependants. Accordingly, permission was granted by court toamend the application by substituting the petitioner, in view of Rule 44(4) of theSupreme Court Rules. The petitioner claimed relief in terms of Articles 11,13(2) and 17 read with Article 126 of the Constitution.
Held :
The petitioner’s version was credible. The police version was contradicto-ry, improbable and had to be rejected. The deceased died of torture by thepolice and that prevented him from seeking relief personally under Article
126(2).
Articles 11 and 13(4) by necessary implication recognize the right to life.Hence if a person died by reason of torture or unlawful death (by the exec-utive) the right of any person to complain against violation of a fundamen-tal right guaranteed by Article 17 read with Article 126(2) should not beinterpreted to make the right illusory; but Article 126(2) should be inter-preted broadly especially in view of Article 4(d) which requires the court to“respect, secure and advance” fundamental rights.
The right of every person recognized by Article 17 to apply under Article126 in respect of the infringement of a fundamental right is an independentfundamental right.
The deceased’s fundamental rights under Articles 11,13(2) and 17 wereinfringed by the 2nd respondent; and also by the 1st respondent on theground of culpable enaction to monitor the activities of his subordinates.The deceased’s rights accrued or devolved on the petitioner and theirminor child. The deceased was put to death “in order to prevent him total-
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ly and permanently from complaining” On that ground also Article
126(2) should be interpreted expansively.
On the question of compensation, a person who has a “bad record” is enti-tled to the same rights as any other person. The deceased was entitled tohave the allegation against him determined by a competent court, after afair trial. As such there is no reason to mitigate the compensation due tothe deceased’s dependants on the ground of deceased’s character.
Cases referred to
Lakshman v Fernando SC 24/90 SCM 29.9.95.
Sanjeewa v Suraweera SC 328/2002 (FR) SCM 4.4.2003.
APPLICATION for relief for infringements of fundamental rights.
J.C. Weliamuna with Shantha Jayawardena and Charuka Samarasekera forpetitioner.
Manohara de Silva with W.D. Weeraratne for 1st respondent.
Saliya Peiris with Upul Kumaraapperuma for 2nd and 4th respondents.
K.A.P Ranasinghe, State Counsel for 5th to 7th respondents.
Cur.adv. vult.
August 8, 2003.
FERNANDO, J.
The petitioner in this case is the widow of M.K. Lasantha 01
Jagath Kumara (“the deceased”). Admittedly, he was arrested bythe 2nd respondent, the Officer-in-Charge (Crimes) of thePaiyagala Police, in June 2000, and died on 20.6.2000 whilst inremand custody at the Magazine Prison, Welikada, The petition-er alleges that the deceased died in consequence of torture bythe Paiyagala Police during an excessive period of detention andwas thereby prevented from filing a fundamental rights applicationunder Article 126, in violation of his fundamental rights underArticles 11,13(2) and 17. In this application under Article 126 filedby her, she claims – for herself and for their minor child – the com-
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pensation which the deceased would have received but for hisuntimely death.
THE PETITIONER’S VERSION
According to the petitioner’s affidavit, she married thedeceased in June 1997; in September he joined the Army andserved at the Puttur Army camp, Jaffna; their child was born in1998; and after 22.1.1999 he did not report back for service.
It is admitted that an open warrant had been issued againstthe deceased by the Magistrate’s Court of Kalutara, in case No. 204097/99 relating to the possession of illicit liquor and distillingequipment.
The deceased was arrested at about 7.00 a.m. on 12.6.2000at the petitioner’s family home at Weragala, Paiyagala, by the 2ndrespondent (who was accompanied by a sergeant and a constable)as being an Army deserter. They tied his hands with a rope. Thedeceased asked the petitioner to send a message to his familyhome, whereupon the 2nd respondent slapped him three or fourtimes and put him into the Police jeep. Thereafter the petitioner andher mother went to the Paiyagala Police. At first she was not 30allowed to see the deceased, but later he was brought and shownto her, given three or four slaps, and put back in the cell. Later still,she was allowed to go near the cell and to speak to him for five min-utes. When asked whether the Police had assaulted him, he repliedin the affirmative.
On the 13th, the petitioner went to the Police station at 8.30a.m., mid-day, and 4.00 p.m., bringing his meals, but it was only onthe third occasion that she was allowed to see him. He said that hewas in pain, and could not eat as he was feeling nauseous. Heasked her to request the Police to hand him over to the Military 40Police.
On the 14th, in the morning and again in the afternoon, thepetitioner went to the Police station. In the afternoon she was toldthat the deceased had been taken to the Head of the CrimesSection for questioning, and that she too could go there. She sawhim there, and noticed that his right arm was terribly swollen, thepart above the elbow being quite black; that he was finding it diffi-
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cult to talk, and to get up from his chair; and that both legs wereswollen below the knee. He was feeling nauseous, and the 2ndrespondent said that he had been vomiting frequently for two days,and asked her to get a polythene bag for him to vomit as well assome medicine from a pharmacy to stop him vomiting. On thatoccasion he vomited blood, and was given a king coconut to drink.That fell to the ground because he could not hold it as all his fingerswere swollen. The 2nd respondent ordered that he be taken backto the cell, but he could not stand up. When shp tried to help him,he shouted out not to touch him in the abdominal region. Back inthe cell, when he had the chance to speak to her privately, he saidthat he had been severly assaulted by Police officers.
The mother and the sister of the deceased also submitted affi-davits, giving details of their visits to the Police, substantially cor-roborating the petitioner’s narrative, especially as to the pitiful con-dition in which he was. Certain other facts emerged from their affi-davits. On the 13th, Police officers told them that the petitionerwould not be produced in Court, but handed to the Military Police.
The sister further stated that on the 15th she and her sistercomplained to the Assistant Superintendent of Police, Kalutara. He.did not record their complaint but telephoned the Paiyagala Policeand ordered that the deceased be handed over to the MilitaryPolice. That evening when she went to the Paiyagala Police shewas told that the deceased had been taken out of the station. Sometime later she saw the deceased being brought back in a Policejeep – unable to walk, and bent in two. The 4th respondent, a con-stable, pushed him into the cell. She then asked the 2nd respon-dent why the deceased was being assaulted in that way withoutbeing produced in Court. He replied that the deceased would beproduced on the 16th. Later she asked him for permission to takethe deceaed to a doctor. He refused, and asked her to meet Dr Awho lived nearby and to obtain some medicine from him. Dr Arefused to prescribe for a patient whom he had not seen, particu-larly one who had been assaulted by the Police.
On the 16th, the sister went to the Magistrate’s Court, whereshe was told that since the 16th was a public holiday suspectswould only be produced at the Magistrate’s residence. The 2ndrespondent later informed her that the deceased" would be pro-
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duced on the 17th. On the 17th, she went to the Police station andshouted out, threatening to complain to the Human RightsCommission if the deceased was not produced in Court that day.The 2nd respondent then had the deceased brought out and stat-ed that he was being taken to Court, and that it was unnecessaryfor her to go to Court as bail could be obtained on the 29th. Whenshe asked him why the deceased was not being given some med-ical treatment, he replied that he would get treatment at the prison.After the deceased was handed over to the Prison authorities, hestated that he had not complained to the Magistrate about hisinjuries through fear of Police assault, then and later. He also saidthat the 4th respondent and six other Police officers had assaultedhim. On the 18th, the Military Police told the sister that thePaiyagala Police had not yet informed them of the arrest and deten-tion of the deceased.
It is not disputed that the deceased was produced before theacting Magistrate, Kalutara, by the 4th respondent, sometimebefore noon on the 17th (Saturday), upon a typed report relating tocase No 4097/99, signed by the 1st respondent and dated17.6.2000. However, in the body of the report he referred to pro-duction on Court “on 2000.6.16 today”, showing that production onthe 16th had been in contemplation when that report was typed.Further, according to the journal entry of the 17th, the 4th respon-dent had informed the acting Magistrate that there were severalpending cases against the deceased, and had objected to bail; andhe had added that the deceased was due to be handed over to theArmy, and that notice had been given. The deceased was remand-ed till the 29th. The 4th respondent handed over the deceased tothe Kalutara remand prison on the 17th. On the 18th, the deceasedwas transferred to Welikada, where he died on the 20th.
The Judicial Medical Officer, Colombo, submitted his post-mortem report, which revealed that the deceased had twentyinjuries (contusions and abrasions) on all parts of the body: on hishead, chest and abdomen, and on every section of every limb -upper arm, fore arm, hand, thigh, knee joint, leg, and foot. Hisupper right arm was swollen and black in colour. The cause ofdeath according to the Coroner was “acute renal failure due to mus-cule cutaneous injuries following blunt trauma”.
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Sriyani Silva v. Iddamalgoda, Officer-in-Change, Police Station
Paivaaala and Others (Fernando, J.)
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On 18.7.2000, an attorney-at-law filed an application underArticle 126, which was described, both in the caption and in thebody of the petition, as being on behalf of the deceased. Among thereliefs sought was compensation in a sum of one million rupees forthe dependants of the deceased. The attorney-at-law had no con-tact with the deceased before his death, and therefore could nothave obtained instructions from the deceased to file that applica-tion, and I pointed this out to learned counsel when he first sup-ported the application on 23.8.2000. He then stated that instruc-tions had in fact been given by the widow, the present petitioner,and that the relief she sought was compensation for the depen-dants. He was given permission to amend. Accordingly the presentamended petition was filed by the widow, as petitioner, and wassupported on 3.10.2000 when the following order was made:
"The petitioner's complaint is that her husband was subject tosuch extreme torture that he died soon after. Mr Weliamunasubmits that in these circumstances the necessary implicationof Article 11 is that any dependant of the deceased should beentitled to relief, particularly in the context of Article 14.1 of theConvention against Torture to which, he says, Sri Lanka is aparty. The fact that a person other than the victim may in somecircumstances be able to invoke the jurisdiction of this Court isimplicit in Article 13(4). In these circumstances, as an impor-tant question of jurisdiction arises, we grant leave to proceedin respect of the alleged infringement of Articles 11, 13(2) and
" .
At first sight, viewed from the perspective of the CivilProcedure Code, it might appear that this Court had permitted anapplication filed on behalf of a deceased person – a nullity in law -to be replaced, under the guise of amendment, by an entirely dis-tinct application by a purported successor in interest, after the lapseof the period of limitation. However, the rules applicable to funda-mental rights applications are much less strict. Rule 44(4) of theSupreme Court Rules, 1990, provides:
"No application shall be dismissed on account of any omissionor defect in regard to the name of the petitioner, the signing ofthe petition, or the proxy, if the Court is satisfied that the per-son whose fundamental right … is alleged in such petition to
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have been … infringed expressly or impliedly authorised or
approved, or ratified the filing of such application."
Despite the-defect in the name of the petitioner – i.e. that itwas filed on behalf of the deceased – it was clear that it was thewidow who had authorised the filing of the petition, and that defectwas capable of being cured. That was what this Court permitted, inkeeping with the spirit of that Rule. Whether the widow had enforce-able rights accruing upon or flowing from the death of her husband 170was a question of law, to be determined at hearing.
THE RESPONDENTS' VERSION
The three affidavits relied on by the petitioner did not implicatethe 3rd respondent, who is therefore discharged. Affidavits werefiled by the 1st, 2nd and 4th respondents, who denied or pleadedunawareness of most of the averments in the petition and affidavitof the petitioner. They did not specifically respond to the affidavitsof the mother and the sister, but I will take them as denied by impli-cation.
While stating that he had not ordered the arrest of the 180deceased, the 1st respondent stated in his affidavit that accordingto the Police records the deceased had been arrested on the 16thand not on the 12th, and had been produced in Court on the 17th.
He pleaded that there were “no marks or any indication that he hadbeen assaulted", that "he did not appear to be suffering from anyailment"; that the deceased had not been assaulted or tortured, andthat he did not witness any assault or torture; and that neither thedeceased nor any one else complained of torture or assault, or ofany need for medical treatment. He did not say anything about hismovements and conduct between the 12th and the 17th.190
In his affidavit the 2nd respondent claimed that he arrested thedeceased on the 16th, but did not explain the circumstances inwhich he had set out from the Police station. As for the arrest, heclaimed that the deceased brandished a knife and tried to stab "us",and attempted to escape, whereupon he had to strike the deceasedseveral times on his right arm to make him drop the knife, usingminimum force. The deceased then surrendered. He gave noexplanation for the other injuries which the deceased had. Soon
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after arrest he recorded the deceased's statement at 10.45 a.m., on
the basis of which the deceased was taken at 11.25 a.m. to variousplaces from which stolen property had been recovered. Heannexed and pleaded as part and parcel of his affidavit his notes ofarrest recorded (in the grave crime information book) at 9.45 a.m.,but not his second set of notes recorded at 9.50 a.m. and pasted inthe minor offences information book at 4.00 p.m. on the 17th.
Both respondents annexed, in bulk, a host of IB extracts, con-sisting of statements, complaints and notes.
The 4th respondent's affidavit was similar to the 2nd respon-dent's, and contained details relating to the deceased being pro-duced in Court and handed over to the prison authorities. He stat-ed that the deceased made no complaint of ill-treatment to theMagistrate.
The 6th respondent, the Inspector-General of Police, failed tofile an affidavit either his own or that of any responsible officeraware of the facts. It must be assumed that he found himselfunable to deny the allegations made in the petition (a) that the
I.D. had informed the Magistrate's Court that they were unable toinvestigate the death as they were busy with other matters, and (b)that it was very likely that the Police would not investigate a killingin Police custody. The petitioner has not alleged any infringementby him, and accordingly it is unnecessary to consider his liability onthe basis of inaction.
CREDIBILITY OF THE TWO VERSIONS
The 1st and 2nd respondents failed to respond specifically tothe affidavit of the sister of the deceased, which referred to sever-al significant matters calling for some explanation from them.Firstly, the sister stated that on the 15th she had complained to theA.S.P., Kalutara, who had telephoned and ordered the PaiyagalaPolice to hand the deceased to the Military Police. She also statedthat on the 18th the Military Police had told her that they had notbeen informed of the arrest. The journal entry of the 17th provesthat there was in fact either an order or a decision to hand thedeceased to the Military Police. The 1st and 2nd respondents failedto produce any document or entry pertaining to that matter, proba-bly for the reason that that question arose before the 16th, showing
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that the deceased had been arrested before the 16th, and that infact the Military Police had not been informed. Secondly, the sisterclaimed that on the 15th the 2nd respondent had told her that thedeceased would be produced in Court on the 16th. The 1st respon-dent's report to Court showed that production had been contem- 240plated on "2000.6.16 today". Finally, she asserted that on the 15th,on the 2nd respondent's directions, she did ask Dr A for medicine.
The 1st and 2nd respondents should have been more forthcomingon these matters, perhaps even to the extent of obtaining affidavitsfrom the A.S.P. and Dr A.
There are other contradictions and shortcomings in therespondents' version. In an endeavour to make up for the omis-sions in their affidavits they have tendered IB extracts in bulk.Those cannot be treated as primary evidence. Apart from that infir-mity, those extracts reveal further shortcomings. The 2nd respon- 250dent's "Out" entry at 7.00 a.m. on the 16th recorded that he wasleaving, with an armed Police party, in a private vehicle, with nomention of make, registration number, ownership, or driver'sname, and without any reference to mileage. Subsequent entriesshowed that the Paiyagala Police had at least two jeeps, and thatwhenever they were used the registration number, mileage anddriver's name were recorded. It is difficult to believe that at 7.00a.m. in the morning both jeeps were unavailable, and that a con-venient private vehicle was available. The respondents could eas-ily have produced the records pertaining to the jeeps to show what 260they were used for, first, on the 12th at 7.00 a.m. (when thedeceased was arrested according to the petitioner), and second,on the 16th at 7.00 a.m.
That "Out" entry did not indicate, directly or indirectly, that thejourney was to search for or arrest the deceased, but, rather, toinvestigate information received about a suspect wanted for seri-ous offences. The 2nd respondent's "In" entry at 9.45 a.m. express-ly stated that that investigation was unsuccessful, and that there-after while patrolling the area he had seen the deceased whom hehad recognised as an Army deserter, for whom an open warrant 270had been issued in case No 4097/99, and who was wanted for seri-ous offences. Those notes did not even suggest that in giving thedeceased reasons for arrest the contents of that warrant had been
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read out – naturally, because the jouney was not in connection withthe deceased, and hence there was no reason to take the warrantwith him. However, in the second set of notes, purportedly writtenfive minutes later, at 9.50 a.m., (and pasted in a different IB the nextday at 4.00 p.m.) it was stated that before they set out on the 12ththe 2nd respondent had explained to the others that they wereseeking an Army deserter against whom there was an open war-rant, etc, and that immediately after subduing the deceased he hadread out the open warrant to the deceased.
Another shortcoimg related to the most serious complaintagainst the deceased – of attempted rape and other offences -allegedly recorded at 5.00 p.m. on the 12th. No reference wasmade to that complaint in the 2nd respondent's notes, or in thedeceased's statement purportedly recorded by the 2nd respondentat 10.45 a.m. on the 16th – although that statement went into greatdetail in respect of every other complaint. That suggests that atwhatever time the deceased was questioned, that complaint hadnot yet been recorded – and that tends to confirm the petitioner'sversion that the arrest was at 7.00 a.m. on the 12th.
According to the petitioner, the deceased did not resist arrest,and sustained no injury at the time of arrest, although he didreceive a few slaps. The respondents claimed that the deceasedsustained some injuries because the Police had to use minimumforce to subdue him. There are serious inconsistencies in thePolice versions. Going in chronological order, the 2nd respondentstated in his 9.45 a.m. notes that he had dealt the deceased someblows with his baton; and that he had carefully examined thedeceased and found contusions on his body which were the resultof the deceased having fallen to the ground while grappling withthem, as well as signs of contusions resulting from blows receivedseveral days previously. In his 9.50 a.m. notes he stated that hehad dealt the deceased several blows on his right arm, and onexamination found that he had swellings on his right arm, abra-sions as a result of falling to the ground, and chicken pox and otherold scars. According to the notes made at 9.50 a.m. by the sergeantwho accompanied the 2nd respondent, he too had dealt thedeceased a few blows with a stick, and on examining him foundthat there were abrasions on both arms above the elbow, and
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scars of blows received some days previously. However, the con-stable who took him into custody soon after all those notes weremade noted the fact that he had examined the deceased – butapparently found none, because he made no record of any injuries.
The deceased was taken out at 11.25 a.m. and brought back to thestation at 4.10 p.m., when he was handed over to a different con-stable, who had examined him, and found contusions on the upperleft arm but no other visible injuries. It is highly probable that thedeceased did have several visible injuries. In any event, the 1st 320respondent's claim that there were no marks or any indication thathe had been assaulted" is quite unacceptable.
The respondents attempted to suggest that most of theinjuries had been sustained in prison custody. They relied heavilyon the deceased's statements recorded on the 17th at the Kalutaraprison in the presence of the 4th respondent, and on the 18th atWelikada. In the former the deceased was recorded as havingstated that the swelling of his arm was due to blows by the Policeand not by any others, without mentioning any other injury. In thelatter, he had stated that he had been arrested by the Paiyagala 330Police on the 12th and had been kept in custody till the 17th; andthat he had been assaulted by about ten officers – he named the2nd respondent and "Sergeant Ananda” (who has not been identi-fied); that his arms and legs were paining; and that he wishedmedical treatment. It is probable that the former statement, madein the presence of the 4th respondent, was incomplete due to thefear of further Police assaults, which he had already expressed tohis sister.
I have no hesitation in accepting the petitioner's version, whichis consistent, and even finds corroboration in important respects 340from the material produced by the respondents – whose version isteeming with contradictions and inconsistencies. I hold that thedeceased was arrested on the 12th, and unlawfully kept in custodyuntil the 17th; and that during that period he was subjected torepeated brutal assaults by Police officers – who ignored the pleasof family members, manifested callous indifference to his pain andsuffering, and denied him even minimal medical treatment – whichresulted in his death, thereby preventing him applying to this Courtfor relief. Even a sentence of death, imposed after trial and convic-
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tion by a competent Court, must be carried out with a minimum ofpain and suffering. The deceased was denied even that right.
RIGHT TO SUE IN RESPECT OF DECEASED'S RIGHTS
The deceased's fundamental rights under Articles 11, 13(2)and 17 had been seriously infringed, entitling him to obtain sub-stantial compensation had he been able to make an applicationunder Article 126. However, the infringement was so serious thathe did not live long enough even to give instructions to file suchan application. Article 126(2) gives a person, who alleges that afundamental right "relating to such person" has been infringed,the right (by himself or by an attorney-at-law) to apply to thisCourt. Several questions arise: does Article 11 include, by impli-cation, a right to life? If the right to life is infringed, are the depen-dants of the deceased entitled to claim compensation for thatinfringement? In respect of the infringement of fundamentalrights, particularly Articles 11, 13(2) and 17, if the victim diesbefore making an application, does the right to sue accrue to ordevolve on his heirs?
Although the right to life is not expressly recognised as a fun-damental right, that right is impliedly recognised in some of the pro-visions of Chapter III of the Constitution. In particular, Article 13(4)provides that no person shall be punished with death or imprison-ment except by order of a competent court. That is to say, a personhas a right not to be put to death because of wrongdoing on hispart, except upon a court order. (There are other exceptions aswell, such as the exercise of the right of private defence.)Expressed positively, that provision means that a person has a rightto live, unless a court orders otherwise. Thus Article 13(4), by nec-essary implication, recognises that a person has a right to life – atleast in the sense of mere existence, as distinct from the quality oflife – which he can be deprived of only under a court order. If, there-fore, without his consent or against his will, a person is put to death,unlawfully and otherwise than under a court order, clearly his rightunder Article 13(4) has been infringed. In regard to every suchinstance, upon the infringement taking place, the victim will ceaseto be alive, and therefore unable to bring an action. If I were to holdthat no one else – next-of-kin, intestate heir, or dependant – is
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entitled to sue the wrongdoers, that would mean that there is noremedy for causing death in violation of Article 13(4); and that theright to life impliedly recognised by that Article is illusory, as there isno sanction for its infringement. That would also create anomalies: 390that there is a sanction for the lesser infringement, i.e. of imprison-ment contrary to Article 13(4), but none for the much graverinfringement, of causing death; and that in regard to causing death,there is a remedy for an imminent infringement, but not for an actu-al infringement. The choice, therefore, is either to interpret Article13(4) narrowly, as if the words “death or" were not there or to inter-pret “person” in Article 126(2) broadly, as including the lawful heirsand/or dependants of such person, either to interpret the funda-mental right restrictively or the Constitutional remedy expansively.Article 4(d) requires this Court to respect, secure and advance fun- 4<>odamental rights, and that requires me to reject the former course,and to adopt the latter. Where there is an infringement of the rightto life implied in Article 13(4), Article 126(2) must be interpreted – inorder to avoid anomaly, inconsistency and injustice – as permittingthe lawful heirs and/or dependants to institute proceedings.
Likewise, Article 17 recognises that every person is entitled tomake an application under Article 126 in respect of the infringementof a fundamental right. That is an independent fundamental right,for the infringement of which relief will be granted: PorageLakshman v Fernando C). If a person is temporarily prevented from 410making, or pursuing, such an application, he will certainly be enti-tled to complain that his fundamental right under Article 17 hasbeen infringed. But if he is put to death in order to prevent him -totally and permanently – from complaining, can it be that no oneelse can complain? For the reasons already stated, here, too,Article 126(2) must be interpreted expansively.
Article 11 guarantees freedom from torture and from cruel andinhuman treatment or punishment. Unlawfully to deprive a personof life, without his consent or against his will, would certainly beinhuman treatment, for life is an essential pre-condition for being 420human. In any event, if torture or cruel treatment or punishment isso extreme that death results, to hold that no one other than the vic-itim can complain will result in the same anomalies, inconsistenciesand injustice as in the case of Articles 13(4) and 17. Here, too,
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Article 126(2) must be interpreted expansively.
I hold that Article 11 (read with Article 13(4)), recognises a rightnot to deprive of life – whether by way of punishment or otherwise- and, by necessary implication, a right to life. That right must beinterpreted broadly, and the jurisdiction conferred by theConstitution on this Court for the sole purpose of protecting funda- 430mental rights against executive action must be deemed to haveconferred all that is reasonably necessary for this Court to protectthose rights effectively (cf. Article 118(b)).
There is yet another reason which compels that conclusion.Article 14.1 of the Convention Against Torture, and Other* Cruel,Inhuman or Degrading Treatment or Punishment provides:
"Each state party shall ensure in its legal system that the vic-tim of an act of torture obtains redress and has an enforceableright to fair and adequate compensation, including the meansfor as full rehabilitation as possible. In the event of the death 440of the victim as a result of an act of torture, his dependantsshall be entitled to compensataion."
The interpretation that the right to compensation accrues to ordevolves on the deceased's lawful heirs and/or dependants bringsour law into conformity with international obligations and standards,and must be preferred.
PERSONAL RESPONSIBILITY OF RESPONDENTS
I am satisfied on the evidence that the 2nd respondent lawful-ly arrested the deceased on the 12th, but made false entries tocover up the fact that he was in unlawful custody thereafter, till the 45ot7th; that he thereby facilitated the torture and the cruel treatmentto which the deceased was subjected; and that he was a willingparticipant in the events which led to the death of the deceased.
As for the 1st respondent, learned Counsel on his behalfurged that he had not participated in or authorised, and had noknowledge of any act of torture or cruelty, and that no one had com-plained to him about any such act. However, his assertions that thedeceased had “no marks or any indication that he had beenassaulted”, and that “he did not appear to be suffering from any
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ailment”, cast serious doubts on his credibility. Those assertions 460imply that he did see the deceased, in which event he could nothave helped noticing the injuries which the deceased had. Further,the deceased was being held in custody subject to the 1st respon-dent’s orders, and it was his duty to consider the need for furtherdetention as well as to check on the deceased’s condition. The 1strespondent gave no reason why the deceased continued to bekept in custody after 4.10 p.m. on the 16th although no furtherinvestigation was needed. The 1st respondent had knowledge ofthe deceased’s condition, neglected to provide him medical treat-ment, and failed to have him produced in Court at least on the 47016th.
In any event, the 1st respondent’s responsibility and liabilitywas not restricted to participation, authorisation, complicity and/orknowledge. As the officer-in-charge, he was under a duty to take allreasonable steps to ensure that persons held in custody (like thedeceased) were treated humanely and in accordance with the law.
That included monitoring the activities of his subordinates. He didnot claim to have taken any steps to ensure that the petitioner wasbeing treated as the law required. Such action would not only haveprevented further ill-treatment, but would have ensured a speedy 480investigation of any misconduct as well as medical treatment for thepetitioner. The 1st respondent is, therefore, in any event liable forhis culpable inaction.
ORDER
Counsel for the respondents submitted that only reduced com-pensation, if any, should be awarded because of the deceased’s“criminaf' record”. They sought to distinguish Sanjeewa vSuraweeraW, where Rs 800,000 was awarded as compensationand costs to a petitioner who was similarly treated but who had thegood fortune to survie his ordeal, on the basis that that petitioner 490did not have a “bad record”. The 1st and 2nd respondents shouldhave concentrated their efforts to have the allegations against thedeceased'determined by a competent Court, after a fair trial. Untilthen the deceased was entitled to the benefit of the presumption ofinnocence. But even assuming that the deceased had a badrecord, the present case is more serious because the deceased
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Sriyani Silva v. Iddamalgoda, Officer-in-Charge, Police Station
•Paiyagala and Others <Fernando, J.)
79
lost his life, and, indeed, the opportunity to redeem his badrecord.
I hold that the deceased’s fundamental rights under Articles 11,13(2) and 17 have been infringed by the 1st and 2nd respondents, 500and other Police officers, and that his rights have accrued to ordevolved on the petitioner and their minor child (M.K. LakshithaMadusankha). I award them a sum of Rs 800,000, in equal shares,as compensation and costs, of which a sum of Rs 700,000 shall bepaid by the State and Rs 50,000 each by the 1st and 2nd respon-dents personally, before 31.12.2003. The sum of Rs 400,000 towhich the minor child is entitled shall be invested in the name of theminor child on the terms that the interest shall be paid monthly tothe petitioner for the maintenance of the child and that the principalsum shall be paid to the child on majority. I direct the Registrar to 510forward a copy of this judgment to the National Police Commissionfor necessary action, particularly in the light of Article 4(d) of theConstitution.
YAPA, J. -1 agree.
DE SILVA, J. -1 agree.
Relief granted.