VELMURUGU
v.
THE ATTORNEY-GENERAL AND ANOTHER
SUPREME
COURT
ISMAIL,
J., WEERARATNE, J., SHARVANANDA, J.
WANASUNDERA,
J. AND RATWATTE, J.
S.C.NO.
74/81,
OCTOBER
19, 20, 21 AND 30, 1981.
Fundamental Rights - Fundamental rights of freedom,from torture or
cruel, inhuman or discriminatory treatment or punishment - Fundamental right of
freedom from arrest except according to procedure established by law - Articles
11 and 13 of the Constitution -Administrative practice.
The petitioner a member of the District
Development Council for Amparai was prevented by army officers when travelling
in a car with 3 others to go to the 4th Colony. He was stopped at
the junction on the 4th colony and obliged to turn back and go back
towards Kalmunai.On the way he apparently received various complaints of houses
being burnt and assault. The petitioner put down the 3 persons who were in his
car and proceeded back again towards the 4th Colony.
On the way he met Fr. Elmo Johnpulle who was going
on a motor cycle towards the 4th Colony ostensibly regarding the
safety of his parishioners. The petitioners then got on to the pillion of the
motor cycle and both of them went on the motor cycle to the junction of the
colony.
At this junction on the orders of the 2nd
respondent the petitioner was taken into custody by army personnel and put into
a jeep. The petitioner was not informed of the charge nor given the reasons for
his arrest. The 2nd respondent told the army and police officers
that they could take petitioner and do as they like with him and left the
place. In consequence of what the 2nd respondent said the petitioner
was then put on the floor of the truck and subjected to torture and/or cruel,
inhuman and/or discriminatory treatment or punishment by the army personnel.
Thereafter the petitioner was taken to the Central Camp Police Station where
his statement was recordedon.directions of the 2nd respondent. The 2nd
respondent instructed the recording officer not to take down anything about
the torture. He was made to sign the statement without reading it.
On the night of 9.8.1981 the petitioner was
produced before the Magistrate to whom he complained of difficulty to walk. The
Magistrate however does not support the petitioner on this point.
The Doctor found injuries on the petitioner but
the petitioner although he had complained of assault by army men had told the
Doctor nothing about the 2nd respondent.
The petitioner complains of illegal arrest and
torture and/or cruel, inhuman or degrading treatment and punishment.
Held: (Sharvananda, J. and Ratwatte,
J.. dissenting)
1 . The test applied is the degree.ofproof,that
is, preponderance of probability, used in civil cases which is not so high as
is required in criminal cases. But there can be degrees
of
probability within this standard. The degree depends on the subject-matter.
Where the allegation is a serious one of torture and inhuman treatment by the
executive and administrative authorities of the State, a high degree of
probability which is proportionate to the
subject-matter is necessary.
2. Under our Constitution it is the illegal acts
of the executive organ alone that could be the subject-matter of proceedings
under article :126.
The liability of the State extends to the unlawful
acts of a wide class of public
officers, including subordinate officers at peripheral levels who in nowise
constitute the decision making core
of the administration. This is a new liability imposed directly on the State by
constitutional provisions. The common law test of tortious liability cannot
provide a sufficient test.
Article 11 which gives protection from torture and
ill-treatment is the only fundamental right that is entrenched in the
Constitution in the sense that an amendment of this clause would need not only
a two-third majority but also a Referendum. It is also the only right in the
catalogue of rights set out in Chapter I I I that is of equal application to
everybody and which in no way can be restricted or diminished. This right
occupies a preferred position and it is the duty of this court to give it full
play and to see that its provisions enjoy the maximum application.
The State should be held strictly liable for any
acts of its high state officials. The liability in respect of subordinate
officers should apply to all acts done under colour of office, i.e. within the
scope of their authority, express or implied, and should also extend to such
other acts that may be ultra vires
and even in disregard of a prohibition
or special directions provided that they are done in the furtherance or
supposed furtherance of their authority or done at least with the
intention of benefiting the State.
The application of a concept of administrative practice can extend State
responsibility to cases where the material before court can show that
occurrence of the acts complained of can be attributed to the existence of a
general situation created or brought about by the negligence and indifference
of those in authority. In the instant case if liability is to be imputed to the
State, it must be on the basis of an administrative practice and not on the
basis of an authorisation, direct or implied, or that these acts were done for
the benefit of the State. I t is not possible to characterise those acts, if
they had taken place as alleged as acts iricidental to the authority and powers
vested in those persons nor have they been performed to further some objective
of the State. They seem to be in the nature of individual and personal acts due to
some aberration or idiosyncracy. They are also suggestive of the venting of
some grievance of a personal
or private nature or in consequence of some
strong passion, prejudice or malice. They are admittedly illegal and criminal
acts and not merely acts that are unauthorised and ultra vires.
The alleged acts of torture and ill-treatment cannot impose liability on the State as a
matter of law. The alleged acts have not been authorised, encouraged, or countenanced
or performed for the benefit of the State.
The Commission of the acts has also not been
proved.
Cases referred to:
(1) Maharaja v. Attorney-General of
(2) Thornhill
v. Attorney-General [1980] 2 WLR 510, 519, 520 (P.C).
(3) Ex parte Commonwealth of
(4)
(5) Neal
v. Dalaware 103
(6) Holme Telephone and Telegraph Company v. City of
(7) Raymond
v. Chicago Union Traction Company (1907) 207
(9)
(10) Civil
Rights Cases (1883) 109
(11) Shamdasani
v. Central Bank of India Ltd. AIR 1952 SC 59.
(12) Thadchanamoorti
v. A. G. (S. C. 63/80- S. C. Minutes.of 14.8.1980).
(13)
(14)
(15) Kathiraning
Bawat v State of
(16) Baten
v Paten (19511 Probate 35 (17)
(19) University Grants Commission Case (S. C. 57 of 1980) - S. C.
Minutes of 8. 8. 1980
Application for infringement of Fundamental Rights under Articles 11 and 13 of the Constitution.
V. S. A. Pullenayagam with R.
Siriniwasam, S. C. Chandrahasan, G. Kumaralingam,
C. V. Vivekanandan, Miss M. Kanapathipillai and T. Pakyanathan for petitioner.
G. P. S. de Silva Addl. S. G. with D. C. Jayasooriya S.S.C. and S.
Ratnapala S. C. for 1st respondent.
K. N. Choksy with Henry Jayamaha and P. Illeperuma for 2nd
respondent.
Cur. adv. vult.
November 9, 1981
ISMAI L, J.
The petitioner in this case is an elected member of
the Amparai District Development Council, is a retired teacher and a prominent
member of the Tamil United Liberation Front in that area. The 2nd
respondent had earlier served in the Kalmunai District as an Assistant
Superintendent of Police and was presently stationed at Nuwara Eliya in the
same capacity until he was drafted temporarily and assigned duties as the
Co-ordinating Officer in charge of the Central Camp Police area in the Amparai
District. It would appear that this posting has been made in consequence of
communal disturbances which had flared up in that area in particular some days
prior to the date on which the incident in respect of which this application is
made by the petitioner had occurred. It is obvious that the 2nd
respondent had been brought down from Nuwara Eliya and entrusted with special
functions by reason of his Knowledge of the locality, the people and other
factors.
In these proceedings the petitioner has invoked the
special jurisdiction of the Supreme Court under Article 126 of the Constitution
on the basis that being a citizen of Sri Lanka, he has the fundamental right
enshrined in the Constitution not to be subjected to torture or cruel, inhuman
or discriminatory treatment or punishment, as well as the fundamental right not
to be arrested except according to the procedure established by law, and that
when arrested he had to be informed of the reason for his arrest, which rights
have been declared and recognised in articles 11 and 13 of the Constitution.
The petitioner on this day in consequence of the communal disturbances that had
occurred for several days in that area had conferred with the Tamil United
Liberation Front Members of Parliament for Nallur, Udupiddy and Pandirippu and
several others. While discussions were going on, as a result of certain
information which had been conveyed to him and the others, he states he left in
a carwith four others including the
driver to go to the 4th colony which came within the area covered by
the Amparai District Development Council.
They left at about 4.30 p.m. and as they came up to
the junction of the 4th colony a jeep had come from the opposite
direction manned by army personnel and stopped in front of this car. The
petitioner states that he got down from his car and introduced himself to the
army officer, who appeared to be the leaderof the group, that he was a Member
of the District Development Council for Amparai. He says that the officer was
adamant and told him he did not care whether the petitioner was a member of the
District Development Council or whether he was a Member of Parliament and
ordered him and others who were with him to turn back and go away. He at that
stage made further remonstration but the army officer was adamant. He
thereupon turned back, returned with the others in the car towards Kalmunai.
On the way back he had apparently met certain other
persons who made various complaints to him of houses.being burnt and assault.
He then put down the other three persons in the car, turned back and proceeded towards the 4th colony, in
spite of the order earlier given by the army officer.
Whilst he was so proceeding he states he met one.Rev. Elmo Johnpulle who was also proceeding towards the 4th colony on a motor bicycle ostensibly regarding the safety of his parishioners. The petitioner states he then got on to the pillion of the motor bicycle of Fr. Elmo and the two of them proceeded and came up
to
the junction of the 4th colony. There he had seen a shop owner who
was known to him standing in front,of his shop with two, armed constables on
either side of him. As he went up, he saws four or five jeeps and two army
trucks with army and police' personnel came up to the spot where the petitioner
was and halted there. He then states that the 2nd respondent who was
in one of the jeeps had recognised the petitioner and gave an order to arrest
him, whereupon some of the army personnel, who were armed had come running up
to him, had taken him into custody and put him into the rear of the jeep in
which the 2nd respondent was.
The petitioner complains that he was not informed
of the charge nor was he given any reasonsfor his arrest. In the meantime Fr.
Elmo on orders of the 2nd respondent had been taken to the police
station by an armed constable. He also referred to an incident at about 6 or
6.30 p.m. while they were proceeding in the course of which certain accusations
were made against him by the 2nd respondent in the presence of army
and police officers, in . the course
of which the 2nd respondent had berated him and he says that
ultimately in paragraph 12(d) of the petition, the 2nd respondent
told the army and police officers to take the petitioner and to do as they like
and thereafter the 2nd respondent left the place leaving the
petitioner in the hands of the army and police personnel. Thereafter he has in
paragraph 13(1a) to (1g) specified the acts of torture and or cruel inhuman and
or discriminating treatment or punishment he had been subjected to by the army
personnel. He states all these acts were done to trim after he was put on the
floor of the truck in which there were about 20 or 30 army personnel. It is
important to bear in mind that it is the petitioners case that this treatment
was meted out to him in consequence of what the 2nd respondent is
alleged to have stated in paragraph
12(d).
Subsequently he states that the truck was stopped
in a lonely. spot and he was asked to walk without looking back. He walked some
distance and when he looked back he saw two soldiers standing with guns aimed
at him as if to shoot him. At that stage some other soldiers he states ran up
to those two soldiers and prevented them from shooting. Then he was ordered
back into the truck and when he got into the truck they had proceeded to the
Central Camp Police Station. He states that thereafter he was ordered to get
down and he walked into the police station As he entered the police station the
2nd respondent who was watching from inside the station had made
certain remarks in Tamil and subsequently had ordered a police officer to
record a statement
from
the petitioner but the 2nd respondent had ordered the recording
officer not to take down petitioner's complaint about the 2nd
respondent's conduct and the torture he was subjected to. He states that he was
then made to sign the statement without it being read to him..
In respect of recording of this statement there is
an affidavit of M.A. Kamaldeen who was the officer who had recorded that
statement of the petitioner at the Central Camp Police Station (P.S. 10889). He
in his affidavit had denied the several allegations made by the petitioner in
respect of the recording of that statement and denied that the petitioner made
any reference to any illegal conduct by the 2nd respondent or that
he had been subjected to torture. He also stated that there was no occasion for
2nd respondent to order that certain matter should not be recorded
by him since the petitioner did not make any such complaints. He has
specifically denied the averments in paragraph 18 of the petition and
affidavit.
To the averments made in paragraph 13(b), (c) and (d) and paragraph 17 of the petition one A. G. Weerasekera a Major in the Sri Lanka Army has filed an affidavit expressly denying the allegations in the several paragraphs. In the affidavit he states that he saw the petitioner inside the police station sometime after 6.30 p.m. that evening and the petitioner had introduced himself as the District Development Council MemberforAmparai and had- asked him for his name and the unit to which he was attached. He had told him that he was in command of the Army Operation Room at Amparai. He states that the petitioner did not at that time complain to him that he had been subjected to torture or assault by army personnel or any other persons. He says if any such complaint had been made he would have immediately investigated into that complaint He has also specifically denied the entire incident referred to in paragraph 13(1 a), (b).
The next step is when the petitioner was produced
before the Magistrate at his bungalow on the night of 9th August
1981. The petitioner had made various allegations regarding what is stated to
have happened in the presence of the Magistrate in paragraph 19 of the
petition. In the course of the averments in this paragraph of the petition the
petitioner states the Magistrate had requested the 2ndrespondent to
drop the petitioner at a convenient point on the petitioner telling the Magistrate
that he was finding it difficult to walk.
There is a comprehensive report by the Magistrate
which had been filed in this case and the Magistrate categorically states that
the petitioners statement that he had told him he was finiding it difficult to
walk was absolutely and categorically false. He stated that the petitioner at
no stage mentioned to him about any difficulty in walking or any discomfort nor
did he even complain of any physical assault, degrading treatment or bodily
abuse. The Magistrate further stated that he walked and talked as a normal
person. It is quite clear therefore when one examines the Magistrate's report
to this Court the record of what had occurred and what he had observed during
the period the petitioner was before him, no complaint whatsoever of any
physical discomfort or of his being harassed or of his being subject to any
torture or of his sustaining any, injury had been made by the petitioner to the
Magistrate. This report is also, to the effect that as far as the Magistrate
could observe the petitioner did not appear to him to suffer from any physical
discomfort, pain or injury. When one reads the petition and the affidavit it is
clear that the petitioner does not appear to have any complaint with regard to
the conduct of the Magistrate. On the other hand it, appears from the facts
stated by the petitioner that the Magistrate had been very sympathetic towards
him and considering the turbulent times and the communal violence that had
been prevalent in that area and in spite of the persistent urging by the 2nd
respondent, the Magistrate had refused to remand the petitioner and had taken
the petitioner at his word and
released- him on certain undertaking given by him and had asked him
to report at the Magistrate's Court on the 12th. It is manifestly
clear therefore that the Magistrate had acted fairly and sympathetically
towards the petitioner, and the petitioner nowhere in his affidavit or petition
makes any complaint of. prejudice or bias or ill-will on the part of the Magistrate. It is also clear when one reads
the petition and affidavit that the petitioner had told the Magistrate certain
things in response to the 2nd respondent's requests to the Magistrate
and it appears to me from these facts that there was no impediment whatsoever
preventing the petitioner from informing the Magistrate that he was subjected
to cruel and inhuman treatment at the instance of the 2nd
respondent. The petitioner has not set out any tangible or possible reasons as
to why he did not tell the Magistrate that he had been subjected to torture,
assault or inhuman treatment etc. at the instigation of and instance of the 2nd respondent. The failure on the
part of the petitioner to have told the Magistrate what had happened to him is
to my mind very significant.
In paragraph (2) of the petition there is reference to an application made by the petitioner's attorney for a private practitioner to nine the petitioner as the DMO was not available. Tliis motion been dated 10.8.81 but the Magistrate states that this motion really supported on 11.8.81 and by that time DMO had ;ady returned. In that Motion there is no reference whatsoever the 2nd respondent being responsible for any of the injuries or at injuries were inflicted at the instance of the 2nd respondent, is to be noted that this motion had been filed by one Mr. SivaIan an Attorney at Law on behalf of the suspect.
On the 12th the suspect had been present
in Court and he was ;presented by Attorneys M. Samsudeen, Mustapha, Kandiah and
ivapalan. The journal entry indicates,what the suspect had stated iz. that he
be permitted to enter hospital, and that he had been rermitted to do so. Even
on that date no indication was given to :ourt that injuries which necessitated
an order of hospitalisation oy the Magistrate, had been inflicted at the
instance or instigation of the 2nd respondent.
The next matter which merits attention is the
medical report of DMO Kalmunai dated 11.8.81. The doctor had described the
various injuries he had found on the petitioner. He states the petitioner gave
a history of assault by army men on 9.8.81. Even to the D.M.O. apparently the
petitioner had not.stated that those injuries were inflicted on him
at the instigation or at the instance of 2nd respondent. The 2nd
respondent's name does not even figure at all in that complaint.
Subsequently the petitioner has been examined by
the JMO on 12.8.81 whose medical legal report has been marked P2. The short
history given by the petitioner to the JMO is assault by army personnel, even
in this there is no reference whatsoever to the 2nd respondent or
his being responsible for the injuries suffered by the petitioner.
The next important document which has a bearing on
the matters in issue in this case is the document 2R15. 2R15 is a recording of
the petitioner's statement at Ward No. 11 of the Batticaloa hospital by the
Batticaloa Police. This statement has been recorded on 14.8.81. It is in
evidence that the 2nd respondent was not attached to the Batticaloa
police and had no connection with the Batticaloa police at any relevant
period. The,petitioner in 2R15
had made a comprehensive and detailed statement of everything which he states
had occurred on this date. The main complaint of the petitioner in this case
against the 2nd respondent
in
so far as the injuries on him are concerned is what is stated in paragraph
12(d) of the petition and affidavit. Though this statement 2R15 had been made
five days after the alleged incident yet this statement does not contain any
allegation against the 2nd respondent on the basis of what is stated
in paragraph 12(d) of the petition. When one reads this document it is clear
that there is no reference whatever to the 2nd respondent
instigating or urging army personnel and others to do what they like with him.
According to the sequence of events indicated in 2R15 after Chandra Perer'a
and the army officer left the petitioner had stated that the army personnel had
put him into, the lorry and from thereon proceeded to subject him to inhuman
treatment..When one reads the trend of events as disclosed in 2R15 the
impression one gets on what the petitioner had told the police is that after
the 2nd respondent and the army officer had gone away from the
scene, the army men had put him into the lorry and had proceeded to assault
him. 2R15 is in Tamil which is the language of She petitioner. The statement
had been read out to the petitioner who had admitted it was correct and had
signed it. P.C. 671 Raveendrarajah had certified that he had accurately and
faithfully recorded the statement of Velmurugu, that is the petitioner.
As far as I can see from the facts in this case
until this petition was filed in this Court on the 9th September
1981 there had been no complaint made to any person in authority or to any
responsible person, whatsoever, that it was at the 2nd respondent's
instigation or urging that the army personnel fiad proceeded to attack the
petitioner in this case and cause those injuries.
Mr. Pullenayagam contended that there was no reason
for the petitioner to falsely implicate the 2nd respondent and
saddle him with this charge of being responsible for the several injuries
sustained by the petitioner. One has to remember that the petitioner is the
elected member of the Amparai District Development Council, is a retired
teacher and a man who is actively engaged in political activity for the Tamil
United Liberation Front. On his own
admission he had been in close association even on this day with the higher-ups
in the TULF, namely, Messrs. M. Sivasithamparam, T. Rasalingam and P.
Ganeshalingam, Members of Parliament for Nallur, Udupiddy and Pandirippu
respectively and Mr. Sivasithamparam is the President of the Tamil United
Liberation Front. It is clear therefore that the petitioner considered himself
a man of some importance and a man of some standing in that area and that
people did generally look up to him for action at least in the political
sphere. What therefore would have been the reaction of the petitioner to the
various acts against the
petitioner
attributed to the 2nd respondent in several paragraphs of the
petition? In paragraph 12 he states that the 2nd respondent had
recognised the petitioner and shouted out, "You are here, arrest
him". Even when they were proceeding at about 6 or 6.30 p.m. he states the
2nd respondent ordered the vehicles to stop at a lonely spot, the
petitioner was then asked to get down from the jeep on the orders of the 2nd
respondent. The army and police stood around in a circle having put the
petitioner along with the 2nd respondent and their commanding
officer in the centre (vide para 12). The 2nd respondent had then
addressed the army and police officers and told them inter alia that (a) Mr. Amirthalingam was a leader of the Tamil United Liberation
Front and the tiger movement and that the petitioner was the local leader for
the Amparai District, that Mr. Amirthalingam was causing the banks to be robbed
and was distributing the money so got through the petitioner, that the
petitioner was the cause of all the communal violence against the Sinhala
people in the area and even for the 1977 incident in Jaffna,that he was behind
the burning of the Timber Depot at Pandirippu and such otherfalse, mischievous
and utterly malicious allegations. He further said that the petitioner and the
said Messrs Sivasithamparam, Rasalingam and Ganeshalingam Members of
Parliament have been roaming the area inciting the people, that they were
Jaffna people who had no business in that area.
In paragraph 19 the petitioner states that the 2nd
respondent made all sorts of
malicious, communal and false allegations against the. petitioner and even
falsely stated that there were number of complaints against the petitioner and
strongly urged the learned Magistrate to remand the petitioner. Further on he
states that the 2nd respondent then began to make some communal
statement against the petitioner and that the learned Magistrate had asked the
2nd respondent to keep quiet.
In paragraph (20) the petitioner states that on
coming out of the learned Magistrate's bungalow after the Magistrate had
switched off the lights and locked his door the 2nd respondent got
hold of the petitioner by the'collar of his shirt and told him in Tamil
"that so long as this Perera lives, Perera will some day shoot the
petitioner". In the same paragraph he states that a little while later
while dropping the petitioner at the junction the 2nd respondent has
stated "if I see you at the Central Camp area I will shoot you".
It appears to me therefore that if reasons were
needed for implication of the 2nd respondent by the petitioner, the
peti-
tioner's
statement with regard to the conduct of the 2nd respondenl to which
I have made reference would be enough motive fe petitioner to implicate the 2nd
respondent falsely. One has ti keep in mind that if the 2nd
respondent had used this languag attributed to him as described in the petition
both in the presenc of the army and police personnel and in the presence of th
Magistrate and the threat held out to the petitioner indicate in paragraph 20,
the petitioner would have been a person whi would have had ample ground to
falsely implicate the 2nd respondent. Accordingly Mr. Pullenayagam's
contention that ther was no motive for the petitioner to falsely implicate the
2nd res pondent in a charge of this nature appears to me withou
substance. There is no doubt that if the 2nd respondent had uses the
words at various instances ascribed to him the petitioner mus have felt utterly
humiliated, resentful, hurt and even infuriated.
Even in petitioner's statement 2R15 he had stated
that Chancin Perera ASP had the intention to make the police and army office
have a bad opinion about him and attributed to him these words:
"This is the District Development Council
Member. He is a big rogue. He is the organiser of the Tiger group. He was
responsible for the communal riots. This fellow with Mr. Siva sithamparam, Mr.
Rasalingam and Mr. Ganeshalingam have gone round the place and instigated
racial violence, they should be taught a proper lesson".
He ran him down further and abused him as a
terrorist Mr. Chandra Perera asked him "How are you", then he laic
"What business have you got here", "I replied, 'I would definite
ly come as a Member of the District Development Council in order to find out
the needs of the people' then he said that he had come to know than Mr.
Sivasithamparam and others came and addec what business have they got - he also
abused them."
Therefore when one takes into consideration talks
and behaviour attributed to the 2nd respondent by the petitioner in
the petition and in 2R15 can one say that the petitioner was without a motive
to implicate the 2nd respondent without justification, particularly
since the petitioner states that all the allegations made by the 2nd
respondent were false, without foundation and were made maliciously in order to
disgrace him and diminish his standing in the eyes of various people.
Therefore when one considers the various
opportunities that existed for the petitioner, if he was truthful, to state the
real cause of his injuries was attributable to the instigation offered by
the
2nd respondent and that injuries were inflicted upon him in
consequence of such implication, then it is patently clear that the petitioner
had several opportunities open to him at which he could have mentioned the 2nd
respondent as a person who caused those injuries to be inflicted on him. The
petitioner had not mentioned the 2nd respondent as being responsible
for these injuries in his first statement recorded by D. C. Kamaldeen. The army
officer Weerasooriya in his affidavit states no mention was made to him of any
injuries being inflicted on him on this evening and it is patent that no
allegation in respect of injuries were made to him implicating the 2nd
respondent. Then when one considers the fact that the petitioner was produced
by the 2nd respondent before the Magistrate, the Magistrate makes
quite clear that at no stage had any complaint been made to him of any injuries
suffered by the petitioner nor any accusations made that the 2nd
respondent had been responsible for instigating the army personnel to deal
with him as they chose. If the petitioner's story is'true that the injuries
were inflicted at the instance of or at the instigation of the 2nd
respondent he could have mentioned the 2nd respondent by name
ordescriptionto the DMO or JMO. He has failed to do so and finally even in the
comprehensive statement made by the petitioner to P.C. 671 Raveendrarajah at
the Batticaloa General Hospital there is no reference whatsoever to the 2nd
respondent asking army personnel to take him and do as they wish and injuries
being inflicted upon the petitioner in consequence of such conduct by the 2nd
respondent. All these facts which I have enumerated throw considerable doubt.on
petitioner's allegation that injuries were inflicted on him by army personnel
at the instance or at the instigation of the 2nd respondent.
The evidence in this case discloses that as a
result of communal disturbances there have been several cases of looting,
arson, assault and other violent crimes prevailing in this area for several
days prior to this incident. The evidence also discloses that the 2nd
respondent had been specially drafted to serve in this area from Nuwara Eliya
because of his knowledge of the locality, terrain and the general background of
the people in this area. He had been designated as the Co-ordinating Officer
between various police stations in the area and also between police and army
detachments - vide paragraphs 10, 11,
12 of the 2nd respondent's affidavit. It is also in evidence that
earlier as a result of communal disturbances in 1977 this entire area had been
subjected to a great deal of unrest and violence particularly since there were
a large number of colonies populated both by the Sinhalese and Tamils and there
were also Muslim settlements. In view of the recent history of this area the
authorities had been apparently apprehensive, and may be justifiably so, that
eruption of communal violence in that area had
to
be dealt with effectively. Perhaps it is with this background in mind that the
2nd respondent had been specially sent to this area since he had
considerable knowledge of the area as he had earlier been stationed at Kalmunai.
The facts also indicate that even at the time of
this particular incident there had been a series of other incidents consequent
as communal violence had flared up between the major communities. In this
background it has to be borne in mind that the 2nd respondent had
been saddled with a great deal of responsibility and in order to effectively
deal with the various situations that arose and were likely to arise, he had
been entrusted with the task of coordinating action between the police and the
army. When one views this matter in the light of the 2nd
respondent's responsibilities and his duties and the demands that would be
made on his personal services, it is clear that once the petitioner had been
arrested in view of the prevailing situations in that area one could not have
reasonably expected the 2nd respondent to have kept the petitioner
under his eye so to speak throughout the entire period he was in custody from
time of arrest till he was handed in at the Central Police Station later on in
the evening. It is also clear from the evidence that immediately after the 2nd
respondent had arrested the petitioner, the 2nd respondent had
entrusted the petitioner to either the army or police personnel who were
present and the 2nd respondent had had to rush to the 3rd
colony in order to deal with certain incidents involving arson, looting and
physical assault taking place there. The responsibility placed on the 2nd
respondent clearly and manifestly indicate that he had to be alert to
everything that was happening in that area and he himself had to personally
co-ordinate security forces to deal with situations as and when they arise. It
is in this light that one has to view the action of the 2nd
respondent when after he arrested the petitioner he had to rush in order to
deal with a situation which had arisen in the 3rd colony.
Mr. Pullenayagam impressed on us that after the 2nd
respondent had taken the petitioner into custody, in the interval between the
convoy of vehicles leaving the 4th colony and the 2nd
respondent's meeting it again at the 3rd colony, the 2nd
respondent had failed to satisfy this Court as to how the petitioner had been
placed in custody and who was responsible for his custody and on his failure to
explain this, one must necessarily accept the petitioner's version of what is
stated to have occurred during this period. As I have pointed out it would have
been humanly impossible for the 2nd respondent to have kept a
fatherly eye on the petitioner throughout the the period he was in custody, in
view of the urgent
and
ugly situation that had prevailed at this time. Quite apart from that the 2nd
respondent in his affidavit in paragraphs 17 to 20 had given a summary of what
had occurred at this time. Then in paragraphs 30, 31 and 32 the 2nd
respondent had specifically denied the various averments contained in paras 12
and 13 of the petitioner's affidavit and had in several paras given his
version of what had actually occurred on this date.
In the circumstances it appears to me that at the
most the contention of the petitioner and of the 2nd respondent is
word against word. The petitioner's allegation in respect of what the 2nd
respondent has stated to have done to him or caused to have done to him
received no corroboration whatever from several sources which would have
corroborated his story if it were true. As I have indicated in the course of my
order the petitioner's version of how he came by his injuries received no
corroboration from any of these sources.
Then again one has to keep in mind that the
petitioner is a person who has on his own admission been very much concerned
with the welfare of his people. Even during this time of tension and terror
when he was ordered by the army officer earlier that day to go back to Kalmunai
and not to be in the vicinity of the 4th colony, he had proceeded
back dropped three of his companions and had come back again to the junction of
the 4th colony where he was confronted by the army and the police
and the 2nd respondent. Viewed in this light and in the absence of
independent evidence to corroborate that he was injured on the evening of the 8th
during the period of his arrest and custody one is left to wonder whether he
could not have been injured in some other incident after the 2nd
respondent had dropped him consequent on the orders of the Magistrate near his
home. There is not an iota of evidence apart from the assertion of the
petitioner to indicate that he had suffered any kind of injury or physical
discomfort during the period up to the time he was released by the Magistrate.
I am adverting to this aspect of the matter purely for the reason that Senior
Attorney appearing for the petitioner contended that it was incumbent on the 2nd
respondent to explain the injuries on the petitioner. Such explanation in my
opinion, could only arise if the facts point to the conclusion that injuries
were sustained by the petitioner after arrest and during the period of his
custody. To my mind there is considerable doubt as to how and when the
petitioner came by his injuries.
Mr. Pullenayagam submitted that two questions of
law emerg for consideration in this case, firstly the burden of proof requi red
in a case of this nature and secondly whether an act of the nature by an
individual which is outside the scope of his legitimate duties would come
within the ambit of executive or adminis trative action. Both these questions
have been comprehensivell' dealt with by Justice Wanasundera and I am in entire
agreemen with his views as expressed in his judgment. I do not think i
necessary for me, in view of the findings of fact I have arrived at to deal at
any length or repeat my conclusions on the two ques tions of law that have
arisen for determination in this case.
Even on the basis that the standard of proof
required in , case of this nature is on a balance of probability, I am of the
view that the petitioner has failed to prove his allegations as against the 2nd
respondent. In the circumstances I dismiss this app lication with costs payable
to the 2nd respondent.
WEERARATNE, J.
I
am in agreement with the judgment and order of my brother Ismail, J. to the
effect that the petitioner's allegations against the second respondent have not
been established on the facts which have transpired in this case. In view of
this finding the questions of law raised before us do not arise.
SHARVANANDA, J.
By
his application dated 9th September, 1981 made to this Court under
Article 126 of the Constitution, the Petitioner has allegec that one D. K.
Chandra Perera, who at the relevant time was E Police officer in the service of the Government holding the rank of
Assistant Superintendent of Police, had infringed the fundamental right
conferred on him by Article 11 of the Constitution, namely, freedom from
torture, by causing the Army to commie various acts of torture on 9th
August 1981 while the Petitioner was in his custody. The Petitioner along with
his application hay filed his affidavit testifying to the circumstances in
which he way taken into custody by the 2nd Respondent when he was
functioning as the Co-ordinating Officer of the Central Camp Police in the
Amparai District, along with the Army, in charge of security arrangements, and
how, while he was in such custody, the 2nd Respondent, saying, inter
alia, that the Petitioner was the
cause of all the communal violence against the Sinhalese people of the
area,
told the Army to take him and do as they
like with him and how in consequence various acts of torture were committed on
him by the Army. He has cited the Attorney-General and the said D. K. Chandra
Perera as 1st and 2nd Respondents, respectively, to this
application. The 2nd Respondent has filed affidavit admitting taking
the Petitioner into custody on 9th August 1981, but denying that he
instigated the Army to torture the Petitioner, and also denying that the Army
ever indulged in the acts of torture described by the Petitioner in his
affidavit.
Article 11 of the Constitution guarantees that "no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The practice of torture is prohibited in all civilized societies. Article 11 is on the same lines as Article 5 of the Universal Declaration of Human Rights. The fundamental nature of the human right of freedom from torture is emphasized by the fact that no derogation is permitted from this right under any conditions, even in times of war, public danger or other emergency. This human right of freedom from torture is vouched not only to citizens, but to all persons, whether citizen or not. The Constitution is jealous of any infringement of this human right. This care is not to be exercised less vigilantly, because the subject whose human dignity is in question may not be particularly meritorious.
By way of preliminary objection to the application,
the Attorney-General submitted that the material before the Court did not
disclose an infringement by "executive or administrative, action" of
the fundamental right guaranteed by Article 11 of the Constitution. He stated
that only violations of fundamental rights by executive or administrative
action attracted the remedy prescribed by Article 126 of the Constitution. He
contended that the phrase "executive or administrative action" in
Article 126 signified "State action" and that a wrongful act of a
Public officer, assuming it to be done under colour of office, was no more
than an individual or private wrong, unless it was sanctioned by the State or
done under State authority. Counsel for the 2nd Respondent adopted
the said objection and associated himself with the submissions of the
Additional Solicitor-General who appeared for the 1st Respondent at the
argument before this Court. He urged that when a State officer commits an act
in contravention of Chap. I I I of the Constitution, such an act is not justiciable under Article 126, although
performed in the course of his public duties, unless such act is supported by the executive branch of the State. He
stressed that unless there is the element of State support, given antecedently
or subsequently, the executive or administrative
action
postulated by Article 126 is not there. His argument was that "executive
action" represented "the action of the collective will of the State
and not that of the individual Public officer."
The preliminary objection raises questions of great
public importance regarding the dimension of the Constitutional remedy afforded
by Article 126 of the Constitution for infraction of fundamental rights. The
essence of a fundamental right lies in its enforceability against the organs of
the State. The freedoms and rights enshrined in Chap. III of the Constitution
are but empty formulae if they may be infringed upon with impunity without
incurring any sanction. Judicial review is necessarily the bulwark of the
freedoms guaranteed by the Constitution. Article 4(d) of the Constitution
provides that "Fundamental rights which are by the Constitution declared
and recognized shall be respected, secured and advanced by all the organs of
the Government and shall not be abridged, restricted or denied, save in the
manner and to the extent hereinafter provided". The framers of the
Constitution, however, have made justiciable only the infringement or imminent
infringement by executive or administrative
action of the fundamental right or language right declared and recognised by
Chap. III or Chap. IV of the Constitution. This Article is directed against the
Executive and is designed as a corrective for executive excesses only. Under
the Constitution, the Supreme Court is the Court charged with the duty of
safeguarding the fundamental rights and liberties of the people by the grant of
speedy and efficacious remedy under Article 126, for the enforcement of such
rights. The importance and beneficial effect of this jurisdiction cannot be
overestimated. This Court has been constituted the protector and guarantor of
fundamental rights against infringement by State action of such rights; in,
view of the vital nature of this Constitutional remedy, it is in accord with the
aspirations of the Constitution that this Court should take a liberal view of
the provisions of Article 126, so that a subject's right to the remedy is in no
manner constricted by finely spun distinctions concerning the precise scope of
the authority of State officers and the incidental liability of the State.
It is to be noted that the claim for redress under
Article 126 for what has been done by an executive officer of the State is a
claim against the State for what has been done in the exercise of the executive
power of the State. This is not vicarious liability; it is the liability of the
State itself; it is not a liability in tort at all; it is a liability in the
public law of the State. - vide Maharaja v. Attorney-General of Trinidad ((1978)2 A.E.R. 670 at 679.P.C.)(1)
If the State invests one of its officers or
agencies with power which is capable of inflicting the deprivation complained
of, it is bound by the exercise of such power even in abuse thereof; the
official position makes the abuse effective to achieve the flouting of the
subject's fundamental rights. The State had endowed the officer with coercive
power, and his exercise of its power, whether in conformity with or in
disregard of fundamental rights, constitutes "executive action". The
official's act is ascribed to the State for the purpose of determining
responsibility, otherwise the Constitutional prohibition will have
no meaning.
The idea underlying Article 126 is that no one by
virtue of his public office or position should deprive a citizen of his
fundamental rights without being amenable to Article 126, even though what the
official did constituted an abuse of power, or exceeded the limits of his
authority. This sweep of State action, however, will not cover acts of officers
in the ambit of their personal pursuits, such as rape by a Police officer of a woman in his custody, as
contended by the Additional Solicitor-General; such act has no relation to the
exercise of the State power vested in him. The officer had taken advantage of
the occasion, but not his office, for the satisfaction of a personal vagary.
His conduct is totally unconnected with any manner of performance of his
official functions.
The "Executive" may be broadly defined as
"the authority within the State which administers the law, carries on the
business of the Government and maintains order within and security from without
the State." (Wynes - Legislative and Executive Powers in Australia (Third
Edition at p. 507). Executive functions thus include, in addition to execution
of the law, the conduct of military operations, the provision of supervision of
such welfare services as education, public health, transport, etc.
The 2nd Respondent is a Police officer
charged with law enforcement duties. In the performance of his duties, he
represents the executive arm of the State. "It is beyond question that a
Police officer in carrying out his duties in relation to the maintenance of
order, the detection and apprehension of offenders and the bringing of them before
a judicial authority is acting as a Public officer carrying out an essential
executive function of any sovereign State -maintenance of law and order . . . .
. 1t is also beyond question that in performing these functions, Police
officers are endowed with coercive powers by the common law, even apart from
any statute. Contravention by the Police of any of the human rights or
fundamental freedoms of the individual . . . . . thus fall squarely
within
what has been held by the Judicial Committee in Ma, v. A. G. of Trinidad and Tobago (1979 A. C. 385 at 396) (1) to be the ambit of the protection afforded by
section 6, viz. conti tion by the State or by some other public authority
endow( law with coercive powers." (Thornhill v. Attorney-General (P.C.) (1980) 2 W.L.R. 510 at 519,
520) (2).
The Fourteenth Amendment of the United States
Constiti provides that "no State shall make or enforce a law which abridge
the privileges or immunities of the citizen of the United States . . . . . . .
nor deny to any person within its jurisdiction equal protection of the
laws." The prohibitions of this Amendment extend to State action through
its judicial, as well as thrc its legislative, executive or administrative
branch of Governm The judgments of the Supreme Court of the United State
America as to what actions constitute "State action," vis-a-vis the Constitutional
prohibition, furnish helpful guidance for resolution of the question in issue.
In Ex parte
Commonwealth of Virginia (100 US p. 339 at 346(3))speaking by Mr.
Justice Strong, the Court said, referring to prohibitions of the Fourteenth
Amendment:
"They have reference to actions of the
political-body den minated a State by whatever instruments or in
whatever moc that action may be taken. A State acts by its legislative,
executive or its judicial authorities. It can act in no other wa The
Constitutional provisions therefore must mean that no age cy of the State or of
the officers or agents by whom its powE are exerted, shall deny to any person
within its jurisdictic the equal protection of the laws. Whoever by virture of
publ position under a State Government deprives another of pr perty, life or
liberty without due process of the.law, or deni or takes away the equal
protection of the laws, violates tt Constitutional inhibition; and as he acts
in the name and for the State, and is clothed with the State's power, his act
is that i the State. This must be so, or the Constitutional prohibition h no
meaning, when the State has clothed one of its agents with the power to annul
or evade it."
In Virginia
v. Rives - ex parte Commonwealth of
Virgin, - 100 US p. 313 at 321(4),
the Supreme Court, dealing with the question of discrimination in the selection of jurors by the Sheriff, stated:
"If the officer to whom was entrusted the
selection of persoi from whom the juries for the indictment and trial of the
peti
tioner
were drawn, disregarding the statute of the State, confined his selection to
white
persons
and refused to select any persons of the coloured race, solely because of their
colour, his action was a gross violation of the spirit of the State's laws, as
well as the act of Congress which prohibits and punishes.such discrimination.
He made himself liable to punishment at the instance of the State, and under
the laws of the United States. In the one sense, indeed, his act was the act of
the State and was prohibited by the Constitutional Amendment."
In Neal v. Delaware (103 US p.. 370)(5), a discriminating enforcement in practice of laws which were in their
terms undiscriminating was again held to be within the aforesaid Amendment.
"The action of those officers, in
the premises, is to be deemed to be the act of the State." The
above passage from ex parte Virginia 339 was reiterated in support of this proposition.
In Holme Telephone and Telegraph Company v. City of
Los Angeles (227 US p. 278 - 57 L.
ed 510)(6), the Supreme
Court held that the prohibitions and guarantees of the Fourteenth Amendment
were addressed to and controlled not only the States, but also every person,
whether natural- or juridical, who is the repository of State power, and that a
case where one in possession of State power uses that power to the doing of
wrongs which are forbidden by the United States Constitution Fourteenth Amendment
is within the purview of that Amendment, even though the consummation of the
wrong may not be within the powers possessed, if the commission of the wrong
itself is rendered possible or is efficiently aided by the State authority
lodged in the wrong-doer. Chief Justice White in delivering the judgment of the
Court said, with reference to the argument that an unauthorised act of a State
agent is not State action within the meaning of the Fourteenth Amendment of
the Constitution of the United States (57 L. ed. at 515), that:
"The proposition relied upon pre-supposes that
the terms of the Fourteenth Amendment reach only acts done by State officers
which are within the scope of the powers conferred by the State. The
proposition hence applies to the prohibitions of the Amendment, the law of
principal and agent governing contracts between individuals and consequently
assumes that no . act done by an officer of the State is within the reach of
the Amendment unless such act can be held to be the act of the State by, the
application of such law of agency. In other words, the proposition is that
the Amendment deals only with the acts
of State officers within the strict scope of the special powers
possessed by them and does not include abuse of
power by an officer as a result of a wrong done in excess of the powers delegated. Here again, the settled
construction of the Amend-. ment is that it pre-supposes the
possibility of an abuse by a State officer or representative of the powers
possessed and deals with such a contingency. It provides, therefore, for a case
where one who is in possession of State power uses that power for the doing of
the wrongs which the Amendment forbids, even although the consummation of the
wrong may not be within the powers possessed if the commission of the wrong
itself is rendered possible or is efficiently aided by the State authority
lodged in the wrong-doer. That is to
say, the theory of the Amendment is that where an officer or other representative
of a State, in the exercise of the authority with which he is clothed, misuses
the power possessed to do a wrong
forbidden by the Amendment, inquiry concerning whether the State has authorised
the wrong is irrelevant and the Federal judicial power is competent to afford
redress for the wrong by dealing
with the officer and the result of his exertion of
power."
The Court referred with approval the holding in Virginia v. Rives (100 US p. 313)(4)
that the enforcement by a State official of a non-discriminating statute in a
discriminatory manner was within the Amendment.
In Raymond v.
Chicago Union Traction Company ((1907) 207 US 20 - 52 L. ed. 78)(7), the Supreme Court stated that the
prohibitions of the Fourteenth Amendment related to and covered all the
instrumentalities by which the State acts and reiterated that whoever by virtue
of public position uder a State Government deprives another of any right
protected by the Amendment against deprivation by the State, violates the
Constitutional inhibition; and as he acts in the name of the State and for the
State and is clothed with State power, his act is that of the State.
In Iowa-Des
Moines National Bank v. Bennett ((1931) 284 US 239 - 76 L. ed. 265) (8), the Court held that although
the prohibition of the Fourteenth Amendment has reference exclusively to
action by the State as distinguished from action by private individuals, the
rights they protected may be invaded by the act of a State officer under colour
of State authority, even though he not only exceeded his authority, but also
disregarded special commands of the State law. ?'When a State official acting
under colour of State authority invades in the course of his duties a private
right secured by the Federal Constitution, that right is violated even if
the
State officer not only exceeded his authority but also disregarded special
commands of the State law.
Misuse of power possessed by virtue of State law
and made possible only because the wrong-doer is clothed with the authority of State law is action taken under colour of
State law. - vide United States v. Classic ((1941) 313 US 299) (9).
Thus, in the U.S.A. it has been established that
the guarantee of the Fourteenth Amendment extends to all"State action and
that the 'State,' in this context, includes every repository of State power.
"State action" even extends to acts done by public officers misusing
their power; it is immaterial whether the State has authorised the act or not,
provided it is done under colour of law or authority.
The Additional Solicitor-General relied on the
following passage in the judgment of the Supreme Court of the United States in
the Civil Rights cases (109 US
p. 3)(10) in support of his
submission that the Constitutional remedy is not available against violation of
fundamental rights by individuals.
"It is proper to state that civil rights such
as are guaranteed by the Constitution against State aggression cannot be
impaired by the wrongful acts of the individuals unsupported by State authority
in the shape of laws, customs, or judicial or executive proceedings. The
wrongful act of an individual, unsupported by any such authority, is simply a
private wrong or a crime of that individual; an invasion of the rights of the
injured party, it is true, whether they affect his person, his property or his
reputation; but if not sanctioned, in some way by the State or not done under
State authority, his rights remain in full force, and may presumably be
vindicated by resort to the laws of the State for redress."
The above passage must be understood in its
context. There, the Court rested its decision upon the explicit language of the
Fourteenth Amendment, which is that "no State" shall deny equal
protection of the laws or due processes of the law; it does not say that
"no person shall deny . . . . .". State action alone is forbidden to
deny fundamental rights. Private individuals are no so enjoined. Constitutional
guarantees of fundamental rights are directed against the State and its organs,
both under section 14 of the United States Constitution and. under
Article .126 of our Constitution. But when a person is deprived of his Constitutional
rights by a State officer in the performance of his duties,
a
quite different situation is presented. A "State officer" is the
'State' against which the provisions of the Fourteenth Ami i ment and of our Article 126 are intended.
Mr. Choksy, in support of his submission, referred
to the following passage in Chaudhuri - Law of Writs and Fundamental Rights (2nd
Ed, Vol. 1, p. 17):
"Fundamental rights afford protection against
State act and not against action of private individuals - Constitutic
safeguards are, as a rule, directed against the State and organs and not
against private individuals. Civil rights guar teed against State action cannot
be infringed by purely priv conduct, except when it is supported by State
authority.”
To the same effect is a citation by the Additional
Solicil General from Basu - Commentary on the Constitution of India (Vol. I, 3rd
Ed. at p. 70). After referring to the passage in Civil Rights cases ((1883) 109 US p. 3) 10 quoted above,
author, states:
"The rights guaranteed by Articles 19(1) and
31(1) of c Constitution (Indian Constitution) are available only agait State
action. Violation of such rights-by individuals is not within the purview of
these Articles."
Reference was also made to the judgment of the Indian Supreme
Court in Shamdasani v. Central
Bank of India Ltd. (A. I. R. (1952) S.C. 59) (11) where it was stated:
"Neither Article 19(1) nor Article 31(1) on
its true cot truction was intended to prevent wrongful individual acts or
provide protection against merely private
conduct ....... The language and structure of Article 19 and its setting in
Part of the Constitution (Indian) clearly
shows that the Article uv intended to protect those freedoms against State
action oth than in the legitimate exercise of its power to regulate privz rights
of property in the public interest. Violation of. rights of property
by individuals is not within the purview, of the Article."
In
the above case, the petition was for the
enforcement of petitioner's fundamental rights under Article 19(1)(f) and At
31(1) of the Indian Constitution against the Central Bank of Ltd. a Company incorporated under the Indian
Companies 1882. The Central Bank of India Ltd. (respondent) was admittedly
not
a State agency or department and hence its action was not State action. The
State was therefore in no way involved. The Constituonal remedy is available
only against a case of infringement by tate action. Hence it was correctly held
that the petitioner had iisconceived his remedy in applying for a
Constitutional remedy to he Supreme Court for the infringement of his
fundamental rights by a private person.
In this case, if the 2nd Respondent had
committed those acts of torture complained of by the Petitioner when he was not
performing his official duty but in the course of his personal pursuits, the
Constitutional remedy under Article 126 will certainly not be available to the
Petitioner. The distinguishing factor in this case is that the Respondent,
acting under colour of the law, had caused the torture to be inflicted when he
was holding the Petitioner in custody.
The Respondents relied also on the judgment. of
this Court in Thadchanamoorti v. A. G. (S.
C. 63/80 - S. C. minutes of 14th August 1980)(12) in
support of their. proposition as to what is meant by "executive or
administrative action" as required by Article 126. The decision in Ireland v, United Kingdom (13) by the European Court of Human
Rights was referred to, and the following comment of Harris in his book
"Cases and Materials of International Law" was considered pertinent
in deciding what is meant by "executive or administrative action ":
"In its judgement (the Irish case), the Court approved the rule that has been developed in
the Commission's jurisprudence by which local remedies need not be associated
where the act or acts claimed to be in breach of the Convention is or are shown
to, be in consequence, of 'administrative practice', namely,,a practice which,
although unlawful under the defendant's State Law, has been adopted or
tolerated by its official or agent and not just an isloated act or acts in
breach of the Convention."
There is no justification for equating "executive
or administrative action" in Article 126 to "administrative
practice" or to acts resulting from administrative practice.
"Practice" denotes "habitual or systematic performances"
and contemplates a series of similar
actions. No known canon ofstatutory interpretation warrants such a narrow or
limited construction of the phrase "executive or administrative
action", which, ordinarily understood, embraces in its sweep all acts of
the Administration, especially when what is at stake is the subject's Constitutional
remedy. In my view, all that is required of a petitioner under Article 126 is
that he should satisfy this Court that the act of infringement complained of by
him is the action of a State
official
or repository of State power. Any violation of fundamental rights by public
authority, whether it be an isolated individual action or consequent to
administrative practice, furnishes, in my view, sufficient basis for an
application under Article 126.
The motive for the infringement by the State officer
is not relevant. I n Sunday Lake Iron Co. v. Wakefield (1918) 247 US 350: 62 L. ed. 1154),(14)
the complaint was against the Tax Officer who was alleged to have assessed the
plaintiff's properties at their full value, while all other persons in the
country were assessed at not more than one-third of the worth of their properties. It was held that the equal
protection clause could be availed of against the Tax Officer. A charge of
violation of equal protection (fundamental right) thus lies against an officer of
State who is guilty of discriminatory
conduct in his official capacity when carrying out the provisions of a law
which are not themselves discriminatory. In Kathiraning Bawat v. State of
Saurashtra (A. I. R. (1952) S. C. 123)(15)B.K. Mukerjee,
J. observed as follows:
"It is a doctrine of the American Courts which
seems to me well founded on principle that the equal protection clause can be
invoked not merely where discrimination appears on the express terms of the
statute itself, but also when it is a result of improper or prejudiced
execution of the law: vide Weaver
on Constitutional Law, p. 404."
The complainant under Article 126 is concerned only
with the impact of a State officer's action on a person's fundamental right; it
is sufficient for him to show that he is aggrieved by such transgression. Thadchanamoorti's
case mentioned above suffers from
the fact that the judgments of the Supreme Court of the United States or of
India which are very elucidatory of the question i;i issue have not been
considered.
It is to be noted that in Maharaja v. Attorney-General of Trinidad (1979 A.C. 385)(1) and Thornhill v,. Attorney-General ((1980) 2 W.L.R. 510 (2) cited above), the complaint in each case was of isolated acts of infringement of fundamental rights by a State official. The Privy Council held that the fundamental right of the petitioner in each case had been violated by the State. To decide the issue, the Privy Council did not embark on any investigation whether there was an administrative practice countenancing such infringements.
The facts in issue on this application have to be
decided on the evidence placed before this Court in the shape of affidavits and
exhibits marked by the parties.
According to the petitioner:
He is a retired teacher and an elected Member of
the Amparai District Development. Council, having won the election to the said
Council as a Member of the Tamil United Liberation Front. On 9th August 1981,
there was communal trouble in the 3rd and 4th colonies.
He had, about 4.30 p.m. that day, become aware that a number of houses
belonging to the Tamils in that area were burnt down. The said colonies came
within the area covered by the Amparai District Development Council. Being
concerned about the happenings there, he went to the 4th colony. He
was going towards the Central Camp area Police Station with a view to meeting
the Officer-in-Charge thereof to urge protective action. As he was going past
the 4th colony junction, he was taken into custody by the 2nd
Respondent, who was going in a convoy
of 4 or 5 jeeps and about two army trucks with Army and Police personnel
towards Sadayanthalawai. At a lonely spot, the 2nd Respondent
ordered the vehicles to be stopped and the Petitioner was then asked to get
down from the jeep in which the 2nd Respondent was travelling. On
the orders of the 2nd Respondent, the Army and Police officers stood
around in a circle, with the Petitioner in the centre. The 2nd
Respondent then addressed the Army and Police officers and told them, inter-alia, that the Petitioner was the
cause of all the communal violence against the Sinhalese people in the area
and that the Petitioner with the Tamil Members of Parliament of the Tamil
United Liberation Front were roaming the area inciting people. The 2nd
Respondent thereafter told the Army and Police Officers to take the Petitioner
and do as they like with him and left the place leaving the Petitioner in
the hands of the said Army and Police
personnel. The Petitioner was then put on the floor of the truck with about 20
or 30 Army personnel, and while the truck was moving, the Petitioner was subjected
to, inter alia, the following acts of
torture and cruelty and degrading treatment by the said Army personnel:-
(a) He
was kicked all over the body with shod feet and trampled on his back with shod
feet;
(b) He
was ordered to speak in Sinhala and when he said he did not know Sinhala, he
was hit on his face by the Army personnel with their fists;
(c) The
petitioner was then asked to repeat after the Army personnel disparaging and
obscene statements that they made in Sinhala regarding Mr. A. Amirthalingam and
Mrs. Amirthalingam, and when the Petitioner pretended that he did not hear them
properly, they pulled and twisted his ears;
(d)
The Petitioner was then asked to stand in the t then kicked on his chest
with shod feet by a sol hung on the bar of the truck with his arms and s feet
so as to kick the Petitioner, and when the latti backwards due to the force of
the kick, he wtis hit hed forward by other Army personnel who were behind him;
(e) Tufts
of his hair and beard were twisted and pul strands of hair were plucked;
portions of his beard and hair were also burnt with lighted matches;
(f) When
the petitioner, tried to protect his beard and ha so burnt, with one of his
arms he was made to lie on the floor of the truck and his arm was twisted and
placed on h and then trampled upon with shod feet; and
(g) He
was hit with gun butts on his head and other parts of the body.
When the truck reached the Central Camp area Police
St the 2nd Respondent was there at the Police Station. The
Respondent then asked the Petitioner: "How are you feeling now”?
Thereafter, on the orders of the 2nd Respondent, a
Policeman recorded a statement from the Petitioner, and when he referred the 2nd
Respondent's conduct and the torture he was subjecte the 2nd
Respondent ordered that such matters be not mentioned and he was made to sign
the statement which was in Sinhala. Thereafter, at about 11.00 p.m., he was taken
to the Kalmunai Magistrate's bungalow. There, the 2nd Respondent
urged the Magist to remand the Petitioner. The Magistrate, however, did not m
any order remanding him, but requested him to stay indoors appear in Court on
12th August 1981. He did not tell the Mz trate about the torture
inflicted on him by the Army, but told him that he found it difficult to walk.
In his statement to Batticaloa Police on 14th August 1981 recorded
at the Batticaloa hospital, he had stated the reason why he did not tell the Magistrate
that he was assaulted by the Army. He said: "Because I feared that I would
be attacked and I was, to be taken by them again. When I was put into the jeep
again, he (2nd Respondent) showed me his revolver and said that he
would one day or other shoot me. I kept silent."' (2R15)
According
to the 2nd Respondent:
He was posted to the Central Camp Police with
instruction: intensify security arrangements in the Central Camp Vellavalai
and
Uhana Police areas with the assistance of the Army. He was directed by the
Inspector-General of Police to take steps to bring under control the communal
violence in the area and also to take necessary steps to prevent its escalation
or continuance. His functions.included liaison between the Police Stations in
his area and also between the Police and Army detachments and ensuring adequate
patrolling and prevention of physical violence, arson and looting. From
inquiries and Police intelligence he became aware that the Petitioner was one
of those who incited violence. On 9.8.81; when he was at the Vellavalai Police
Station, shortly after 4.00 p.m. he received a message that a Sinhalese man in the No. 3 colony had been stabbed and his
wife had been assaulted and in consequence a large number of huts in the No. 4
colony which was populated by Tamil persons had been set on fire. He
immediately proceeded by jeep accompanied by two other jeeps - one a Police
jeep and the other an Army jeep - with Police and Army personnel. On the way he
met the Petitioner at the junction of the No. 4 colony. He took the Petitioner
into custody pending further inquiries on suspicion of his instigating and inciting communal disharmony and
violence, as he suspected the Petitioner of instigation in connexion with the
incidents that had just taken place. On reaching the No. 4 colony, he found
several huts burnt and some still smouldering. Most of the inhabitants had
previously entered refugee camps. The remaining people had informed him that
some villagers had come across the paddy fields, set fire to the huts, saying
that the Tamil people had stabbed Sirisena of their colony. He observed a crowd
of people in the paddy field at a distance and thereupon he gave chase with the
assistance of the Police and Army personnel. On reaching the No. 3 colony, he
made enquiries and questioned the villagers in order to ascertain the persons
responsible for burning the huts in the No. 4 colony. When he was questioning
the colonists, Lt. Col. Mohandas Sumanasena arrived there with Sirisena and two
suspects, Vallipuram and Ponnadurai, who were suspected of having stabbed
Siriseqa. Thereafter he sent a message for the vehicle which was still in th.e
No. 4 colony to be brought to the junction of the roads leading to the No. 4
colony and No. 3 colony. His jeep came to the No. 3 colony and, he got into the
jeep and proceeded to the junction. At the junction he found that the other
vehicles had arrived from the No. 4 colony and that Lt. Col. Sumanasena had
also come to the junction with his vehicles. All the occupants, including the
Petitioner, had alighted and were awaiting him. Major Ananda Weerasekera had
also come there. They all decided to return to the Central Camp area Police
Station. He travelled back in his jeep, while the Petitioner, .Sirisena and the
other two suspects got into the other vehicles in which the Police and the Army personnel travelled.
On arrival at.the
Central
Camp area Police Station, at about 6.30 p.m. he instructea the
Officer-in-Charge and P. S. Kamaldeen to record the staten of the suspects.
Thereafter, at about 11.00 p.m. he produce( Petitioner before the Kalmunai
Magistrate and moved that he be remanded. There, the Petitioner stated to the
Magistrate that he would be leaving for Peradeniya on 12.8.81 after reporting to Court that day
and gave an undertaking to remain indoors till 12.8.81. The Petitioner made no
complaint to the Magistrate of any ass or incitement by him to be assaulted.
Thereafter he took Petitioner in his jeep and left him in the Kalmunai town. He
det the allegations made by the Petitioner against him.
According
to the record maintained by the-Magistrate:
On 10.8.81, Mr. Sivapalan, Attorney-at-Law for the
Petitioner, filed a motion in the Magistrate's Court that "permission be
granted to take Dr. Murugesupillai and treat the suspect at his residence the
D.M.O. was not available at Kalmunai." On that date itself, the Magistrate
had made order: "D.M.O. to examine and report if patient needs
hospitalisation or other treatment." The D.M.O, in his report dated
11.8.81 to the Magistrate states:
"I examined Mr. K. Velmurugu (petitioner) of
Pandirup today at your request, He gives me a history of assault by Arr men on
9.8.81 evening with boots, hands and rifles.
On examination -
He is a case of mitral incompetence (valvular heart
disease) which necessitates treatment by a physician. Probably due t assault,
he has
-
contusions and
abrasions on the back of the chest;
-
painful
swelling of left wrist;
-
abrasions on
legs and left ear-lobe;
-
swelling of
both ankle-joints;
- tender
and painful left jaw-joint on movement;
- tender
and swollen left mastoid process where fractur cannot be excluded.
I am of opinion that he should be kept under
observation and treated in a hospital where investigation facilities and
Consultanare available."
On 12.8.81 the Petitioner appeared in Court. The
record state: "Suspect states he desires to enter hospital. He is
permitted to do so. D.M.O. should mention his condition."
The Petitioner was admitted to the General
Hospital, Batticaloa, at 4,50p.m. on 12.8.81 and he was examined by the J.M.O. at at
8.00 a.m. on 13.8.81. The doctor's report P2 reads as follows:
"Short History:
Assault by Army personnel with boots and rifle.
Patient was suffering from mitral incompetence, heart disease."
The medical report proceeds to set out in detail a
number of injuries found on the Petitioner and states that the injuries were
caused by blunt weapon. The J. M. O. further states that the X'rays revealed
"fracture of neck of left side of mandible."
The Petitioner was discharged from the hospital
only on 25.8.81.
When the present application was supported
on 24.9.81 in this Court, this Court called for the observations of the
Magistrate with regard to the Petitioner's
version of what happened on 9.8.81 in the Magistrate's presence.
In his report, the Magistrate has stated that the 2nd
Respondent strenuously urged the remanding of the Petitioner, on the ground
that the Petitioner was inciting communal feelings and that security could not
be maintained if the suspect was at large. He further stated that he did not
remand the Petitioner as 'the petitioner agreed to self-imposed confinement in
his residence till 12th August. Thereafter he was to leave the area
for Peradeniya till the end of the month to sit for his Degree
examination". The Magistrate has further stated that: "The
petitioner's statement that he told me that he was finding it difficult to walk
is absolutely and categorically false. The petitioner at no stage told me of
any difficulty in walking or bodily discomfiture; nor did he hint at having
been subjected to physical assault, degrading treatment or bodily abuse. But
the 2nd respondent and the petitioner were, seated on chairs at the
same table as I was, and the petitioner showed no external signs of physical
strain or exhaustion. He walked, sat and talked as a normal
person. I saw no evidence of singeing of his beard nor other marks of any
injuries. The shirt he was wearing was grimy and soiled".
With reference to the Petitioner's averment in
paragraph 23 of his affidavit, "On the motion of my Attorney-at-law Mr.
Sivapalan, on the next day, 10th August, the learned Magistrate
ordered that I be examined by. the D.M.O., Kalmunai, and the said
doctor examined me on 11th August 1981", the Magistrate
observes:
"The application made by the petitioner's
Attorney was for a private practitioner to examine the petitioner as the
D.M.O. was not available. Although the application
lised on 10.8.81, it was not supported till the fo by which time the D.M.O. had
already returned. He was therefore ordered to examine and report on the need
for tion."
This observation of the Magistrate is contradictory
of the record (M. C. Kalmunai 84155) , according to which it would the
Magistrate had, on the motion of the Petitioner's made order on 10.8.81 itself
that the D.M.0 should e; report. The Magistrate further states: "On 12th
August 1981, in the presence of a large throng of supporters, the pet assisted
into the well of the Court with much ceremony". entry dated 12.8.81, the
record states : "Suspect states he desires to enter hospital. He is
permitted to do so. The D. M.O. should mention his condition". Howerver,
the Magistrate in his observation states that though the D.M.O. had detailed
the Petitione and recommended that the Petitioner be kept under of and treated
in a hospital, "there was no reason to deny cation that hospitalisation
would even more effectively absence from the area, thus eliminating all
possibility ment." It is difficult to appreciate. the relevance of this p
observation. The Magistrate appears to have pre-judged th ner.
That the Petitioner had not mentioned to the
Magistrate was produced before the Magistrate by the 2nd Responder
night of 9.8.81 that he was assaulted by the Army ordinaril count against the
Petitioner. But he has given a good reasc statemept 2R15 to the Police dated
14.8.81 for failing to c the face of the D.M.O.'S reports dated 11.8.81 and of
the Officer, General Hospital, Batticaloa, dated 13.8.81, it ca disputed that
the Petitioner had been brutally assaulted afte taken into custody by the 2nd
Respondent on the eve 9.8.81; we have only the version of the Petitioner how th
had, at the instance of the 2nd Respondent, inhumanly treated him
while he remained in the 2nd Respondent's custody. After Respondent,
had dropped the Petitioner at midnight on 9th 1981, the Petitioner
had stayed at home in compliance with the undertaking he had given to the
Magistrate. The motion file by the Petitioner's Attorney on 10.8.81 shows that
the Petitio confined to his house on 10.8.81 and had wanted the do come and
treat him there. On the sequence of events, it ca seriously denied that the
injuries that the doctors found Petitioner resulted from the brutalities
committed by the A 9.8.81. The injuries speak for themselves and confirm the
Petitio
ner’s
version of how he came by them. The 2nd Respondent admits in his
affidavit that the Petitioner was taken in the Army truck after the arrest by
him. It is significant that the Magistrate "should think of
hospitalisation of the Petitioner when he made order on 10.8.81 on the
application made to him that a doctor should be allowed to see and treat the
Petitioner at his house.
The conclusion is irresistible that the Petitioner
received his injuries on the evening of 9th August 1981 after he was
taken into custody. There is no suggestion by the 2nd Respondent
that prior to his taking the Petitioner into custody, he was already having
those injuries. In my view, the 2nd Respondent is untruthful when he
denies the averments in paragraph 14 of the Petitioner's affidavit that the
Army personnel inflicted the acts of torture referred to therein.
The Petitioner was taken into custody by the 2nd
Respondent at about 4.30 p.m. on the 9th and continued to be in his
custody until he was taken before the Magistrate at about 11.00 p.m. that same
night. He was responsible for the custody and it was his duty to see that the
Petitioner was not ill-treated while in such custody. The 2nd
Respondent has therefore to explain what happened to the Petitioner while he
was thus in custody. He has however not chosen to tell this Court as to how the
Petitioner came by his injuries while the Petitioner was in such custody. He
has also failed to explain why the Petitioner was put in the Army truck and why
he gave charge of the Petitioner to the Army personnel to take him to the
Central Camp area Police Station when he could have taken him in his jeep to
the Police Station. The conclusion is unavoidable that the 2nd
Respondent arranged with the Army officers for the Petitioner to be taken by
them to the Central Camp area Police Station. The Petitioner, being in custody, had no choice in the matter. In my opinion, the Petitioner's version as to
how the 2nd Respondent handed the physical charge of the Petitioner
to the Army with instructions that are highly improper and ill become an
officer of his responsible position represents the true facts.
The 2nd Respondent did not become
functus after taking the Petitioner into custody. The 2nd
Respondent, as a Police officer endowed with coercive powers, was carrying out
his official duty in keeping the Petitioner in his custody until the Petitioner
was produced before the Magistrate that night. In carrying out such duty, he
was acting as a Public Officer performing an essential
executive
function of the State - the maintenance of
lave order, and any contravention by him of the detai fundamental rights
constitutes contravention by the Exect as referred to in Article 126. According
to the Petitioner, the 2nd Respondent had addressed the Army and
Police officer the Petitioner was the cause of all the communal violenc( had
asked them to take him and do as they like. The 2nd Respondent, the
Police officer charged with the duty of bringing under control the communal
violence in the appears to have conceived that if the Petitioner coul be
silenced by torture, the communal violence could be conti Hence, he chose to
achieve that object by having the Petil tortured by the Army personnel. He thus
violated the fundamental right guaranteed to the Petitioner by Article 11 of
the Constitution, namely, freedom from torture. As stated earlier, where an
officer of a State, in the exercise of the authority which he is clothed with, uses
the power to do a wrong forbidden by the Constitution, inquiry whether the
State had authorised the wrong is irrelevant; the State is bound by the way the
2nd Respondent exercised the coercive powers vested in him.
The European Commission on Human Rights in the 'Greek case' commented on the difficulties faced by litigants alleging that public officers had inflicted or instigated acts of torture:
"There are certain inherent difficulties in
the proof of allegations of torture or ill-treatment. First, a victim or w able
to corroborate his story might hesitate to describe or reveal all that has
happened to him for fear of reprisals upon himself or his family. Secondly,
acts of torture or ill-treatme by agents of the Police or Armed Services would
be carried out as far as possible without witnesses and perhaps without the
knowledge of higher authority. Thirdly, where allegatio torture or
ill-treatment are made, the authority, whethe Police or Armed Services or the
(Ministries concerned, inevitably feel that they have a collective reputation
to defend, a feeling which would be all the stronger in those auth that had no
knowledge of the activities of the agents whom the allegations are made. In
consequence there n reluctance of higher authority to admit or allow inquirie
made into facts which might show that the allegations ar Lastly, traces of
torture or ill-treatment may with lapse c become unrecognizable, even by
medical experts, parti where the form of torture itself leaves . . . . . . few
external marks." - Vide Journal
of Universal Human Rights, Vol. 1, No. 4, Oct-Dec. 1979 at p.42.
It is well to bear the above comment in mind in
investigative allegations of torture by the Police or Army.
The case discloses a shocking and revolting episode
in lawenforcement. If fundamental rights assured by our Constitution are to be
meaningful, trampling underfoot the fundamental freedoms of subjects by
law-enforcement officers should not be tolerated.
In
my view, the Petitioner has established that he was subjected by the 2nd
Respondent and the Army personnel to torture and cruel, inhuman and degrading
treatment in violation of Article 11 of the Constitution. The 2nd
Respondent by the misuse of his official powers has compromised the State and
has made the State liable for his grave misconduct.
I allow the Petitioner's application. He is
entitled to the declaration that his freedom from torture and cruel, inhuman
and degrading treatment guaranteed to him by Article 11 of the Constitution has
been violated by the 2nd Respondent and the Army personnel.
In my view it is just and equitable that the State
should pay fair compensation for the distress, humiliation and suffering
undergone by the Petitioner as a result of the aforesaid contravention by its
officer. I direct the State to pay Rs.10,000/= as such compensation to the
Petitioner. I also direct that the State take appropriate disciplinary action
against the 2nd Respondent for his aforesaid misconduct.
The Respondents shall pay the Petitioner the costs
of this application.
RATWATTE, J.
I
agree with the judgment and order of
Sharvananda, J. and allow the Petitioner's application with costs.
WANASUNDERA, J.
I am in agreement with my brother Ismail's
statement of the facts and his evaluation of the evidence in this case. It is
my view too that even adopting the standard of proof advocated by Mr.
Pullenayagam, the petition must fail. But, since a number of important legal
questions have been argued at the hearing, and
more
particularly since my judgment in Thadchaname
Attorney-General(12) has
come in for some criticism, fairness to counsel I should deal with these
submissions.
There is first Mr. Pullenayagam's submission regard
nature of the burden of proof that lies on him to establish his case.
This question has assumed some importance because
th sharp conflict in the material the petitioner on the one ha the respondents
on the other have placed before us. Probab scious of certain infirmities in his
case, Mr. Pullenayagam emphasised that we should follow the standard of proof
usually adopted in civil cases, namely
proof by a preponderance of probability. Accordingly, he criticised a
suggestion thrown in Thadchana moorti's case(12)
where I said that we could profitably with suitable modifications, the test
formulated in the Iris case. There,
the European Court on Human Rights said-
"161. To assess this evidence, the Court
adopts the sti of proof 'beyond reasonable doubt' but adds that such may follow
from the co-existence of sufficiently strong and concordant inference or
similar unrebutted presumptions of fact."
In coming to our own findings on the facts set out
earlic have taken the view that the petitioner must prove his allegations to
the satisfaction of the Court. We have, in this case, tried to clear of using a
formula or language that may lead to any understanding. But, we make clear that
the test we have applied is the degree of proof used in civil cases which is
not so high required in criminal cases.
When we find from case law that the words
"reasonable doubt” is an ambiguous expression and could be used aptly not
only reference to a criminal case but also in regard to a civil case,it is
doubtful whether the European Court intended to say any different from what we
have in mind. Although the expression "beyond reasonable doubt" has a
criminal flavour, it is possii use that expression in other contexts.
The following passage from the judgment of Lord
Denni Baten v. Baten, [1951] Probate
35,(16) cited by Mr.
Pullenayagam is particularly interesting for the manner in which he has handled
the formulae relating to the burden of proof in civi criminal cases without
allowing himself to be lost in the verbiage.
"The difference of opinion which as been
evoked about the standard of proof in recent cases may well turn out to be more
a matter of words than anything else. It is of course true that by our law a
higher standard of proof is required in criminal cases than in civil cases.
But this is subject to the qualification that there in no absolute standard in
either case. In criminal cases the charge must be proved beyond reasonable
doubt - but there may be degrees of proof within that standard . . . .
So also in civil cases, the case may be proved by a
preponderance of probability but there may be degrees of probability within
that standard. The degree depends on the subject-matter. A civil court when
considering a charge of fraud will naturally require for itself a higher degree
of probability than which it would require when asking if negligence is
established. It does not adopt so high a degree as a criminal court even when
it is considering a charge of criminal nature; but still it does require a
degree of probability which is commensurate with the occasions. Likewise a
divorce court should require a degree of probability which is proportionate to
the subject-matter ...... 'The only general rule that can be laid down upon the
subject is that the circumstances must be such as would lead the guarded
discretion of a reasonable and just man to conclusion.' The degree of
probability which a reasonable and just man would require to come to the
conclusion - and likewise the degree of doubt which would prevent him coming to
it - depends on the conclusion to which he is required to come. It would depend
on whether it was a criminal case or a civil case, what the charge was and what
the consequences might be; and if he were left in real and substantial doubt on
the particular matter, he would hold the charge not to be established: he would
not be satisfied about it.
But what is a real and substantial doubt ? It is
only another way of saying a reasonable doubt; and a reasonable doubt is simply
that degree of doubt which would prevent a reasonable and just man from coming
to the conclusion. So the phrase 'reasonable doubt' takes the matter no
further. It does not say that the degree of probability must be high as 99 per
cent or as low as 51 per cent. The degree must depend on the mind of the
reasonable and just man who is considering the particular subject-matter. In
some cases 51 per cent would be enough but not in others. When this is realised
the phrase 'reasonable doubt' can be used just as aptly in a civil case or in a divorce case or in a
criminal case."
In a later House of Lords' case Blyth v. Blyth, .1966 (1) A.E 524,(17)
Lord Denning quoted with approval the following stament from an Australian case
as correctly setting out the law:-
"While our decision is that the civil and not
the crimii standard of persuasion applies to matrimonial cases, including
issues of adultery, the difference in effect is not as great as sometimes
represented. This is because . . . . . the nature a gravity of an issue
necessarily determines the manner of att ning reasonable satisfaction of the
truth of the issue a because the presumption of innocence is to be taken it
account."
Mr. Pullenay submitted that the proper test should
gathered from the definition of the word "proved" as contained
section 3 of the Evidence Ordinance. The definition is as follows:
"A fact is said to be proved when, after
considering the matters before it the court either believes it to exist or
considi its existence so probable that a prudent man ought under t
circumstances of the particular case to act upon the' supp sition that it
exists.."
I do not think that those words are any different
from the language quoted by Lord Denning from Lord Stowell's judgment Loveden v. Loveden, (1810) 2 Hagg. Con.
1.3 (18) when he sa "The only general rule that can be laid
down upon the subject is that the circumstances must be such as would lead the
guarded discretion of a reasonable and just man to the conclusion." In coming to our conclusions we have taken
into consideration both Mr. Pullenayagam's submission that this Court must not
in any way lay an undue burden on a petitioner complaining of an infi gement of
a human right if we are to safeguard those rights and the counter submission by
the respondents that the liability that has been imposed is one against the
State and since the allegat is a serious
one of torture and inhuman treatment by the exe tive and administrative
authorities of the State, a high degree probability which is proportionate to
the subject-matter is nE ssary. These rights which are alleged to have been
infringed app also to reflect certain obligations that the Government had
recognised under the U.N. Declaration of
Human Rights.
I turn next to a consideration of the main
submissions made counsel relating to the nature and extent of the liability
of State for an infringement of the
provisions of Article 11 of Constitution.
Mr. Pullenayagam cited a number of local and
foreign cases and his submission in brief was that when a public officer acts
in the name of the State and is clothed with the authority of the State, his
act must be considered as action of the State for which the State is liable.
He relied on certain dicta in my brother Sharvananda's judgment in the first
application to this Court against the University
Grants Commission (S.C. 57 of 1980)(19) and in particular on Thornhill
v. Attorney-General, 1980(2) W.L.R. 510,(2) and Maharaja v.
Attorney-General, [1979] A. C. 385 (1)
Both
the Deputy Solicitor-General G. P. S. de Silva and Mr. Choksy sought to
distinguish these cases. They suggested an interpretation of Article 11 of our
Constitution, which is much more restrictive and narrower than that outlined by
Mr. Pullenayagam.
Of the two important cases relied on by Mr.
Pullenayagam, the first is Maharaja v.
Attorney-General,of Trinidad, [1978] (2) A.E.R. 670(1) a decision of the Privy Council. In
this case the appellant, a member of the Bar of Trinidad and Tobago was imprisoned
for contempt of Court. In charging the appellant with contempt, the Judge had
not made plain to him the particulars of the specific nature of the contempt.
In his appeal, the appellant alleged that the judge had inadvertently failed to
observe a fundamental rule of natural justice and that this constituted a
deprivation of liberty otherwise than by due process of law guaranteed as a
human right and fundamental freedom by Chapter.] of the Constitution of
Trinidad and Tobago, 1962
The Constitution of Trinidad and Tobago contained, inter alia, provisions setting out
certain human rights and fundamental freedoms and the machinery for granting
redress for their infringement. The most important of these provisions for the
purpose of our case are the following:-
1. It
is hereby recognised and declared that in Trinidad Tobago there have existed
and shall continue to exist with( discrimination by reason of race, origin,
colour, religion sex, the following human rights and fundamental freedoi namely
-
(a) the
right of the individual to life liberty, security of person and enjoyment of
property, and the right i not to be deprived thereof except by due process of
law;
(b)
...............
(c) …………
2. Subject
to the provisions of sections 3, 4 and 5 of this Cc titution no law shall
abrogate, abridge or infringe or aut rise the abrogation, abridgment or
infringement of any the rights and freedoms thereinbefore recognised and decla
and in particular no Act of Parliament shall -
(a) authorise
or effect the arbitrary detention, imprisonment exile of any person
................
(b) impose
or authorise the imposition of cruel and unus treatment or
punishment..............
(c) deprive
a person who has been arrested or detained ..... (ii) of the right to retain
and instruct without delay a IE adviser
of his own choice and to hold communication w him.
(e) deprive
a person of the right to a fair hearing in accorda with the principles of
fundamental justice for the de mination of his rights and obligations.
(h) deprive a person of the right to such procedural provisi as are necessary for the purpose of giving effect and pro tion to the aforesaid rights and freedoms.
3. Sections
1 and 2 of this Constitution shall not apply in rela to any law that is in
force in Trinidad and Tobago at the c mencement of this Constitution.
6.11 For
the removal of doubts it is hereby declared that if any person alleges that any
of the provisions of the foregoing section or sections of this Constitution
has been, is being or is likely to be contravened in relation to him, then
without prejudice to any other action with respect to the same matter which is
lawfully available, that person may apply to the Higher Court for
redress."
In interpreting these provisions, their Lordships
of the Privy Council said:-
"Read in the light of the recognition that
each of the highly diversified rights and freedoms of the individual described
is s.1 already existed, it is in their Lordships view clear that the protection
afforded was against contravention of those rights or freedoms by the State or
by some other public authority endowed by law with coercive powers. The chapter
is concerned with public law, not private law. One man's freedom is another
man's restriction; and as regards infringement by one private individual of
the rights of another private individual s. 1 implicitly acknowiedges that the
existing law of torts provided a sufficient accommodation between their
conflicting rights and freedoms to satisfy the requirements of the new
Constitution as respects those rights and freedoms that are specifically
referred to."
Thereafter their Lordships held that :
"the order of Maharaj, J., committing the
appellant,to prison was made by him in the exercise of the judicial power of
the State, the arrest and detention of the appellant pursuant to the Judge's
order was effected by the executive arm of the State. So if his detention
amounted to a contravention of his rights under s. 1(a) it was a contravention
by the State against which he was entitled to protection."
In considering the question of the contravention of
section 1, it was necessary to find out whether the law in force before the Constitution came into effect had
required that the Judge must specify sufficiently the nature of the contempt
charged before a person charged with contempt could be convicted. This was
because this section proceeds on the basis that fundamental rights which it
covers are already secured to the people of that country by existing law. Such
a requirement was found to exist in the common law, and their Lordships said
that it would have been sufficient even if such a right had been enjoyed de facto, as the constitutional
provisions had dignified those rights to the level of a constitutional right
under the constitutional provisions.
Before granting relief to the appellant, their
Lordships wet to deal with a formal objection raised by the State. The Atto
General argued that relief should not be granted to the petit because it was a
long established rule of public policy that a cannot be made personally liable
in law for anything done b) in the exercise or purported exercise of his
judicial functions mainly on this point that Lord Hailsham dissented from the
maj view. The majority in overruling this objection said:
"In the first place no human right or
fundamental free recognised by Chapter I of the Constitution is contravened
judgment or order that is wrong and liable to be set asic appeal for an error
of factor substantive law, even where the has resulted in a person serving a
sentence of imprisonment remedy for errors of these kinds is to appeal to a
higher c When there is no higher court to appeal to then none can sad there was
error. The fundamental human right is not to a system that is infallible but to
one that is fair. It is only ern procedure that are capable of constituting
infringements o rights protected by s. 1(a) and no mere irregularity in pracl
enough, even though it goes to jurisdiction, the error must arr to a failure to
observe one of the fundamental rules of m justice. Their Lordships do not
believe that this can be any but.a very rare event."
Straightaway it should be mentioned that Mr. Choksy
soug distinguish this case and the other case coming from this same diction, to
which I will presently refer, on the ground that are based on a wider
application of those rights than under our tituto-nal provisions. It would be
convenient if I now turn to Mr. Choksy's submissions.
Mr. Choksy first referred to Article 4 of our
Constitution and our attention to the use of the terms "executive" in
contradi tion to the terms "legislature" and "judicial" in
these provi Fle submitted that the words "by executive or administrative
ac contained in Article 126 must necessarily be limited to the ai pnly one of
the traditional triumvirate of State organs, namely legislative, the executive,
and the judiciary.
He next referred to Chapter V11 titled "The
Executive" deals with the President of the Republic, Chapter V111, also
titled "The Executive", dealing with the Cabinet of Ministers, at
Chapter 1X again titled "The Executive", dealing with Public Service.
Similarly it would be found that Chapters X; XI
X11 are headed "The Legislature" and Chapters XV and XVI
deal
with the judiciary and the Courts. It was Mr. Choksy's submission that we have
in the above provisions a definition of the term "Executive "and
unlike in the cases from the West Indies cited by Mr. Pullenayegam, our
jurisdiction in respect of violations of fundamental rights is
confined to such "infringement by executive or administrative action"
and does not have the width and range of the jurisdiction obtaining in the West
Indies where violations "by the State or other public authority" is
made justiciable. In fact in Thornhill v. Attorney-Genera/ (supra), which followed the Maharaja case (supra), the Privy Council explained what is meant by public authority and said
that it must be understood as embracing local as well as central authorities
and include any individual officer who exercises executive functions of a
public nature.
Although there is a great deal 'of force in Nor. Choksy's
submission on this point, it is possible for us to dispose of this case on a
narrower basis without a discussion of the matter at the level of the
fundamental constitutional structure of the two countries. Mr. G.P.S. de Silva
has sought to distinguish this case on a much narrower basis, namely that in Maharaja's
case we have an instance of an
inadvertent omission on the part of the judge to comply with a fundamental
right, whereas the allegations in the instant case is in respect of certain
positive and illegal acts quite outside the ambit of. the officer's normal
functions or such functions as are incidental thereto. Thornhill's
case is in some respects closer to
the present case, in that it concerns certain wrongful acts or omissions on
the part of the police which took place in the course of an investigation and
was done in furtherance of such investigation:Thornhill's case, therefore, may have greater relevance to the
present case than Maharaja's case.
It may however be mentioned that even in the Maharaja's
case there was some reluctance and
hesitation on the part of the Privy Council to make the acts of the judiciary
justiciable under these provisions, It would appear that some pains have been
taken in an effort to shift liability as much as possible away from the
judicial sphere and bring the impugned act, if not within the executive
sphere, at least as close as possible to it. It was stated that, though redress
was claimed from the State for a violation of the fundamental rights by the
judicial arm of the State for making an order of commitment to prison, the
arrest and detention of the appellant however was effected by the executive arm
of the State.
I shall now deal with Thornhill's case. The appellant in this case was arrested and
taken to a police station in consequence of a shoot-out with the Police. As
guaranteed in section 2 c (ii) of the
Constitution.
The appellant made several requests to be giv opportunity of communicating with
his lawyer. The police d accede to his request. The appellant was suspected by
the of committing other crimes about which they wished to it gate him. It would appear that there was nothing in
conn with the investiqation that would have made it inconvenie him to be
allowed to consult his lawyers. The only reason %A was not allowed to do so was because the police
officers it gating him were of the
view that if the appellant were to ok lawyer's advice as regards his legal
rights, he may decline to a some of the questions that would have tended to
incriminal and the police would have been less likely to obtain from confession
as regards the commission of earlier offences.
The reasoning in this case is somewhat complex and
in) and turns on the interpretation of sections 1, 2 and 3 o Constitution.
Although the right claimed by the appellant i tained in section 2 (c)(ii), it
was contended for the respon which included the Attorney-General, that the
effect of sec of the Constitution was to reduce the ambit of sections 1 and
limit them to rights that had obtained and which coulc been enforced by a
person under a written law or in terms,
common law prior to the coming into operation of this C tution. The respondents
submitted that the. petitioner had nc enforceable right at the relevant point
of time.
The Privy Council however held that section 2 only spells
out expressly and in greater detail what is described in more general terms in section 1 and section 2 c(ii) and has
adequately sei the rights of the appellant to have access to a lawyer. So
interpreted, it was unnecessary to embark on a consideration as to whether or
not such a right subsisted under the law at the commencement of the
Constitution. Their Lordships however proceed interpret section 1 and said that
they caught up only de jure rights,
but included de facto rights enjoyed by a person as a of settled executive policy or the manner
in which administrative or judicial discretion had been exercised. They said
that the to consult a lawyer had in fact been a matter of settled practice.
Having given a ruling on the legal provisions,
their Lord proceeded to consider the question of the liability of the for the
acts of the police officers. It would appear from the ment that there had been
some discussion about the precise tionship of a police officer to.the
executive particularly beg there had been previous authority for the
proposition that persons who have been responsible for appointing a constable
were not
held
to be vicariously responsible for his tortious acts done by him in purported
exercise of his common law powers of arrest. Dealing with this aspect of the
matter, their Lordships said -
"It is beyond question, however, that a police
officer in carrying out his duties in relation to the maintenance of order; the
detection and apprehension of offenders and the bringing of them before a
judicial authority is acting as a public officer carrying out an essential
executive function of any sovereign state - the maintenance of law and order or
to use the expression originally used in English "preserving the King's peace." It is also beyond
question that in performing those functions police officers are endowed with
coercive powers by the common law ev.-n apart from statute. Contraventions by
the police of any of the rights or fundamental freedoms of the individual that
are recognised by Chapter I of the Constitution thus fall squarely within what
has been held by the Judicial Committee in Maharaja
v. Attorney-Genera/ of Trinidad and Tobago, No. (2) 1979 A.C.
385-396(1) to be the ambit of the protection endowed by section 6
viz. contraventions 'by the state or by some other public authority endowed by
law with coercive powers.’ In this context public authority must be understood
as embracing local as well as central authorities and including any individual
officer who exercises executive functions of a public nature. Indeed the very
nature of the executive functions which it is the duty of police officers to
perform is likely in practice to involve the commonest rule of contravention of
an individual's rights under section 1 (a) and (b) through over-zealousness in
carrying out those duties."
Mr. Pullenayagam relied heavily on the above
passage for the submission that acts or omissions on the part of a police
officer done under colour of office or in the purported exercise of his powers
would involve the state in liability. Nevertheless he made a significant
concession, namely that there could be acts which can be regarded as an
individual or personal act not entailing liability on the State. As an example
he gave the case of a police officer arresting a woman, then taking her to the
police station and raping her. This, concession however is prima facie inconsistent with the width of his main submission,
but unfortunately Mr. Pullenayagam made little effort to reconcile these two
positions.
It may be mentioned that it is precisely in this
area that one has to search for an answer in the present case. This is particularly so because the statement of law
contained in the foregoing passage
in
Thornhill's
case as Mr G.P.S.de Silva argued,
need no the wider meaning contended for by Mr. Pullenayagam a means provides a
ready-made answer Mr. De Silva subm this statement was an obiterdictum
and itwas not permissib a wider
construction to the words than was warranted by the facts.
It would be convenient if, at this stage, I return
to th, aspect of Mr. Choksy's argument where he had sought to de the liabilty
of the State for the acts of its officers and thereafter deal with Mr. De
Silva's submissions.
Proceeding from his submission that under our
Constitui the illegal acts of the executive organ alone that could
subject-matter of proceedings under Article 126, Mr. contended further that the
act of a public officer, ever executive sphere, would not attract the liability
of the Stat such act can be said to constitute the act of the executik
explained this to mean that an act to qualify for such liabilisignify
the will of the collective body called the Executive. connection he drew our
attention to the provisions of the tution which provides for the collective
responsibility Cabinet and. stated that likewise an act of an executive from
the hihest level to the most subordinate must represe be in accordance with the
collective will of the government, to be regarded as constituting executive
action. He was he prepared to concede
that an unlawful act occurring as par settled administrative practice could
legitimately be incluc the category of executive acts.
The effect of this argument into further restrict the
aml Article 126. If only such acts as representing the will of the S1 done in
consequence of a settled administrative practice can be admitted as falling
within the ambit of Article 126, the bulk of unlawful and illegal acts
committed by executiv administrative officers would be left without redress. Su
interpretation would even exclude unlawful acts comr through over-zealousness
in carrying out duties which the Council said involves the commonest risk of
the contraventic an individual's right, and for which the State should be held
li 1 agree with Mr. Pullenayagam when he said that such a construc would empty
these provisions of nearly all content and r th$se safeguards ineffective and
void.
For the purpose of his argument Mr. Choksy laid undue
emphasis on the word "executive" to the exclusion of the connected
word "administrative" in Article 126. Article 126 uses the expression
"executive or administrative action." When my brother Sharvananda
drew his attention to this, he said that the two words were synonymous and
interchangeable and meant the same thing, namely the concept of the executive.
Such a view was apparently necessary for the purpose of his argument. In my
view the terminology in Article 126 has been chosen with some care and the
juxtaposition of these two terms conveys certain nuances of meaning suggesting
that the liability of the State extends to the unlawful acts of a wider class
of public officers, namely, subordinate officers at peripheral level who in
nowise constitute the decision making core of the administration. I would
adopt Mr. Pullenayagam's description of executive officers as those whose
hands are on the levers of power. All
those not falling within this category
are designated administrative officers. I find Mr. Choksy's interpretation of
Article 126 far too restrictive with the result that if accepted it would
whittle down considerably the protection of fundamental rights guaranteed and
protected by the Constitution. Further. reasons for my taking a different
view will become evident from this judgment.
I next turn to the submissions made by Mr. G. P. S.
de Silva. The interpretation he placed on the relevant provisions. was less
restrictive than Mr. Choksy's interpretation and he conceded that Article 126
would catch up unlawful acts of an executive or administrative officer provided
they are performed in the course of his duties and under colour of authority.
At the time these events took place, a state of emergency had not been
proclaimed and the army was merely assisting the polic Mr. de Silva submitted
that the army personnel had no more authority than any civilian. He stated that
when the 2nd respondent handed the petitioner to the army personnel
and left saying, "Take him and do as you like," the 2nd respondent
had actually relinquished all control he had over the petitioner. and was
literally to use counsel's words, "throwing him to the wolves."
It is strange that the State has chosen to.put the
entire weight of its argument on a statement alleged to have been made by the 2nd
respondent - but denied by him- and which interpreted in the manner suggested
by the petitioner is certainly indefensible. .Fortunately, I think, this
argument is not entitled o prevail either on the facts or in principle. Mr. Silva
also souy it suoport for his argument from certain dicta in the judgments cited
by Mr. Pullenayagam, which I do not.again think are very much in his favour.
In Thornhill's case, the infringement was by way of or and it related to a positive
requirement expressed as a funda right, namely the duty of the Police to all^
.: the appell consult a legal adviser. In Maharaja's case too, the infrinc complained of was of an
omission, namely the failure of the to comply with a legal requirement to specify
the nature contempt that was alleged.
Firstly, it could validly be said that the facts in
the instal are different in kind rather than degree from the facts in cases.
For the purpose of this discussion I shall confine my the alleged assault by
the army personnel on the assumptic the burden of proof lying on the petitioner
in that respe been discharged. Even this assumption will be shown later
unjustified. The allegation against the 2nd respondent has been
ruled out and those facts are not relevant here. Here we have an instance of an
act of commission - the performance of a positive act which is both ultra
vires and illegal in nature. To
that extent it could be said that the cases cited by Mr. Pullenayagam are not
of real assistance in this matter. Mr. De Silva's argument, if I understood him
right, included a further distinction that in thoss sions the unlawful acts or
omissions took place in furtherar the matter or proceedings' which those
officers were lav authorised to do, or in the context of powers that cou
implied or incidental thereto. Here, there was the total abser any authority
and it is a case of a wanton assault. He invoked in support the concession made
by Mr. Pullenayagam contair the example of a woman being ravished by the police
officer wanted to know how that example differed from the present case.
Although some of the distinctions made by Mr. de
Silva in respect of these cases have a certain validity and the dicta relied by him could be pressed to serve his
arguments, I do not thir analysis of the problem any more than Mr.
Pullenayagam' dealt satisfactorily with the underlying principles governing
liability for unlawful acts performed by these executive administrative
officers.
The learned Deputy Solicitor-General sought to
advanc argument further by relying on certain decisions relating to rious
liability of a master for the acts of his servant in the sphere of the law of
tort. I am in agreement with Mr..Pullenayagam that the test of liability
formulated in those cases is not an approf or safe test for application in the
present case. We are here dealing with the liability of the State under public
law, which is a liability imposed directly on the State by the constitutional
provi-
sions.
While the decisions relating to the vicarious liability of a master for the
acts of his servant may be useful to the extent that all cases where a master
can be held liable in tort would undoubtedly fall also within the liability of
the State under the constitutional provisions, the converse need not be true
unless we are to give a restricted interpretation to the constitutional
provisions. The common law test of tortious liability therefore cannot provide
a sufficient test and we have to look elsewhere for the appropriate
principles.
In this regard I should like to mention that an
indication of what those principles are has to some extent been foreshadowed in
Thadchanamoorti's case (supra),
although in that case the court merely
quoted certain excerpts from foreign authorities but did not think it was
necessary, in the circumstances of that case, to enunciate those principles in
any detail. When I expressed those views I was generally having in mind a
situation like the present case. The excerpts are taken from the decision of
the European Court of Human Rights in the Irish case and certain
observations about that case that appear in Harris's "Cases and Materials
on International Law," Mr. Pullenayagam alleges that in Thadchanamoorti's case (supra)
this Court had misunderstood the effect
of the ruling in the Irish case. The reference to an "administrative
practice" in that material, he states, is with reference to the plea of
the need for the exhaustion of domestic remedies required by Article 26 of the
Convention and has no relevance whatsoever to the present context. I shall
examine that contention later in this judgment.
Article 11 which gives protection from torture and
ill-treatment has a number of features which distinguish it from the other
fundamental rights. Its singularity lies in the fact that it is the only
fundamental right that is entrenched in the Constitution in the sense that an
amendment of this clause would need not only a two-thirds majority but also a
Referendum. It is also the only right in the catalogue of rights set out in
Chapter III that is of equal application to everybody and which is no way can
be restricted or diminished. Whatever one may say of the other rights, this
right undoubtedly occupies a preferred position.
Having regard to its importance, its effect and
consequences to society, it should rightly be sirrgled out for special
treatment. It is therefore the duty of this Court to give it full play and see
that its provisions enjoy the maximum application.
Brandeis J. in lowa
- Des Moines National Bank v. Bennett, (1931) 284 US 3239(8) , dealing with the liability of the
State for acts of public officer said -
"The prohibition of the 14th
Amendment, it is truf reference exclusively to action by the State as
distinguished from action by private individuals. But acts done by virtue of a
public position under a State Government and in the name and for the State
................ are not to be treated as if they were the acts of private individuals,
although in doing them the official acted contrary to an express command of
State Law.Where a State official, acting under colour of State authority
invades in the course of his duties a private right secured by the federal
Constitution, that right is violated, even if the State officer not only
exceeded his authority, but disregarded sp commands of the State Law"
Whatever be the application of this statement to
the other fundamental rights, in our country, in my view, Article 11 will be
rendered ineffective unless we interpret it on more or less the lines set
above. But I think the guarantee contained in Article 11 is capable of further
refinement.
Earlier in this judgment, when dealing with Mr.
Chok, submissions, I favoured the view that in the relevant provisic
a distinction has been drawn between high State officers subordinate personnel.
Such high State officers constitute Executive, but subordinate officers act for
and on behalf of State. Article 126 lends itself to this interpretation though
If rightly or wrongly text writers and tribunals have thought somewhat the same
lines when dealing with the liability o State for the acts of its officials in
international law.
I am inclined to the view that the State should be
held stric liable for any acts of its high State officials. I should think, in
present case, if the allegations against the 2nd respondent had
been proved, this would have constituted
an act of the State its and entailed the liability of the State for such acts.
The liability in respect of subordinate officers
should ap to all acts done under colour of office, i.e., within the scope their
authority, express or implied, and should also extend such other acts that may
be ultra vires and even in
disregard c prohibition or special directions provided that they are done the
furtherance or supposed furtherance of their authority or do at least with the
intention of benefiting the State.
The above principles appear to be generally
supported by the case law and Mr. De Silva, I think, was prepared to admit
liability to this extent or almost to this extent. The illustration Mr. Pullenayagam,
gave on his own admission falls outside these limits. As I stated earlier, Mr.
De Silva's position is that the instant case is practically, identical with the
exception indicated by Mr. Pullenayagam.
My own view is that the liability indicated in the
cases cited by counsel need not be the last word on the subject. Justice and
common sense demands a further elaboration of these principles of State
liability to dispose of cases like the present one. Mr. Pullenayegum, I am
sure, would not have fought this case with so much tenacity if he had not felt
a sense of injustice about the whole affair. It is the marginal character of
cases such as this - assuming that the assault by the army personnel took place
as alleged - that make them so disturbing. If going by the case law, we were to
draw the line here so as to exclude liability in those situations, I am not at
all sure that we would have done all we can to discharge the trust placed in us
to safeguard these rights.
International tribunals and jurists do not appear
to agree on the precise principles that. should govern State liability in
situations such as this. It is in this context that I found myself thinking of
the concept of "administrative practice" referred to earlier, which
has come in handy in analogous situations. The application of such a concept
could help to extend State liability to cases like this and the one given by
Mr. Pullenayagam so that thev too can be brought within State responsibility it
the material before the Court can show that the occurrence of the acts
complained of can be attributed to the existence of a general situation created
or brought about by the negligence and indifference of those in authority.
In the Irish
case (Ireland v. U. K., Jan. 18, 1978) (13) the Irish
Government complained to the European Human Rights Commission against the U.K.
Government's policy of internment, investigation and detention in Northern
Ireland. The Royal Ulster Constabulary (R.U.C.) Special Branch had established
a number of interrogation centres throughout the province and applied various
methods of interrogation in order to secure confessions and information about
the outlawed I.R.A. One of the allegations made against the U.K. Government was
that some of the persons arrested had been subjected to interrogation in depth
involving the use of five techniques, namely, wall standing, hooding,
subjection to noise, deprivation of sleep, and deprivation of food. These
devices
were used to. deprive prisoners of the normal exerci their senses to facilitate
the obtaining of confessions. At the palace Barracks Centre, the R.U.C. forced
prisoners to stand spread eagled against a wall and severely beat them up. At
other cntres various punishments were inflicted on the prisoners. The
Government alleged that these acts constituted an "administi
practice" in violation of Article 3 of the European Conventic Human
Rights.
It may be of interest to know that although the
U.K. Government admitted from the start
that the use of the five techn was authorised at "high level", such
authority was "never mitted to writing or authorised in any official
document, the niques had been orally taught to members of the R.U.C the English
Intelligence Centre at a Seminar". It was therfor apparent that the Irish
Government came before the Commi claiming a violation based on an
"administrative practice", and not on the basis of known and specific
directions given by the U.K. Government authorising such wrongful acts. Apart
from the complaint of the Irish Government, there were also individual plaints
made on the same basis, namely, the violation of Article 3 by means of an
"administrative practice". These individual complaints were consolidated and dealt with
under the name Donnally and others v. United Kingdom. It should be r that the accusation of the
infringement of Article 3 was fou solely on the basis of an administrative
practice. The following paragraph from the judgment makes this clear.-
"158. Following the order of 11th
February 1977 (see I grahp 8 above) the Irish Government indicated at the
hearing in April 1977, that they were asking the court to hold that there had been in N. Ireland from 1971 to 1974 a practice
or practices in breach of Article 3 and to specify if need be where had
occurred."
The findings of both the Commission and the Court
also the matter beyond any argument. I n paragraph 147 the Court reproduces the
conclusions of the Commission, In sub-paragraphs iv vi, the Commission holds -
"iv. unanimously that the combined use of the
five techniques in the case before it constituted a practice
of inhu treatment and of torture in breach of Art. 3.
vi. Unanimously that there had been at Palace Barry
Holywood in the autumn of 1971 a practice in connection
with the interrogation of persons by members of
the R. U. C. which was inhuman treatment in breach of Art. 3 of the Convention."
The Court's own conclusions regarding the
violation of Article 3 are as follows:
"3. holds by sixteen votes to one that the
use of the fire techniques in Aug. and Oct. 1971 constituted a practice of
inhuman and degrading treatment which practice was in breach of Art. 3.
6. holds unanimously that there existed at Palace
Barracks in the Autumn of 1971 a practice of inhuman treatment, which practice
was in breach of Art. 3."
The confusion in Mr. Pullenayagam's mind has
apparently arisen because the question of an administrative practice can also
have particular relevance in another connection. The Court said:
"The concept of practice is of particular
importance for the operation of the rule of exhaustion of domestic
remedies."
Article 26 provides that before a complaint can be
entertained under the Convention, a party must exhaust all domestic remedies.
In the Irish case apparently that had
not been done. So, when that plea was taken in that case, it was countered by
the complainant Government that if a Government countenances an administrative
practice that is a violation of the Convention, domestic remedies in that
country are likely to be non-existent or ineffective and accordingly a plea
under Article 26 should be ruled out. The allegation of the existence of an
"administrative practice" was thus relied on by the Irish Government
not in subsidiary manner by way of defence - though it came in useful also as a
defence - but it constituted the main thrust of the complainant Government's
case. A practice, the Court said, does not itself constitute a violation
separate from the act complained of, meaning that in certain circumstances
where there is the need to rely on the existence of an "administrative
practice", the specific act complained of becomes a violation only when it
is viewed against the background of-such practice. This ought to be sufficient
to dispel any misunderstanding that Mr. Pullenayagam may have that Thadchanamoorti's
case has substituted the test of
"administrative practice" as against the test of executive or
administrative action" required by Article 126 of our Constitution.
The concept of "administrative practice"
therefore al to carry with it certain features that give it wide-ranging aF
tion in a number of different situations. In the Greek case, complaint was made in 1967 by the three
Scandinavian countries, Denmark, Norway and Sweden against Greece, after army
officrs in Greece had seized power by a coup
d'etat.
One of the charges was that of
torture and ill-treatment of political prisoners.
The Commission, after carefully reviewing all
evidence, concluded that torture had been inflicted in a number
of cases an there was a strong indication that the acts of torture or
ill-treat- ment were not isolated or exceptional, nor limited to one place. It
was of the view that there was a practice or torture and ill- treatment by the
Athens Security Police of persons arrest political reasons, that the Greek
authorities, confronted with numerous and substantial complaints and
allegations of torture and ill-treatment, had failed to take any effective
steps to investigate them or remedy the situation.
In the course of its order, the Commission gave a
ruling, impact of an "administrative practice" in relation
to a p the exhaustion of domestic remedies. The Commission said:
"25. Where, however, there is a practice of
non-obse of certain convention provisions, the remedies prescribE of necessity
be side-stepped or rendered inadequate. 1 there was an administrative practice
of torture or ill-trea judicial remedies prescribed would tend to be rendered
ii tive by the difficulty of securing probative evidence and a strative
enquiries would either be non-instituted or if the, would be likely
to be half-hearted and incomplete ......”
The Commission then went on to give a definition of
the expression "administrative
practice" which can by no means be limited in application only to a case
where plea under Article 26 is The Commission said:
"28 ..... two elements are necessary to the
existence of an administrative practice of torture or ill-treatment; repetition
of acts and official tolerance. By repetition of acts is m substantial number
of acts of torture or ill-treatment are the expression of a general situation.
The pattern of suc may be either on the one hand, that they occurred in the
place, that they were attributable to the agents of the police or military
authority or that the victims belonged to
the
same political category; or on the other hand, that they occurred in several
places or at the hands of distinct authorities or were inflicted on persons of
varying political affiliations.
29. By official tolerance is meant that though acts
of torture or ill-treatment are plainly illegal, they are tolerated in the
sense that the superiors of those immediately responsible though cognisant of
such acts takes no action to punish them or prevent their repetition; or that
the higher authority, in the face of numerous allegations manifest indifference
by refusing any adequate investigation of their truth or falsity or that in in
judicial proceedings, a fair hearing of such complaints is denied."
In the Irish case (13) these principles have been further elucidated when the court observed -
"159 A practice incompatible with the
Convention consists of an accumulation of identical or analogous breaches which
are sufficiently numerous and inter-connected to amount not merely to isolated
incidents or exceptions but to a pattern or system...... a practice does not of
itself constitute a violation separate from such breaches. It is inconceivable
that the higher authorities of a State should be, or at least should be
entitled to be, unaware of the existence of such a practice. Furthermore under
the Convention those authorities are strictly liable for the conduct of their
subordinates, they are under a duty to impose their will on subordinates and
cannot shelter behind their inability to ensure that it is respected."
Mr. Pullenayagam's submission, as I stated earlier,
is wide enough to take in an alternate ground irrespective of the charge
against the 2nd respondent, that in any event the evidence was adequate
to establish the probability of the petitioner coming by his injuries at the
hands of the army personnel. He has argued backwards from the medical reports
and sought to link the injuries with the events of the 9th August.
The reports show that he had ten injuries, nine of them contusions and
abrasions and one a fracture of neck of left side of mandible, said to be
grievous. The petitioner is also said to have a heart complaint (mitral incompetence)
which has nothing to do with the alleged ill-treatment. Incidentally, the
inflictment of these injuries would not constitute torture if we are to go by
the definition given to that term in the Irish case. The injuries were found on the petitioner on
the 11th August and since the petitioner had been exposed to a situation on the 9th night when he was
in the custody of army personnel
who
he alleges assaulted him, Mr. Pullenayagam submits that we should hold that the
charges against the army personnel ha been established irrespective of whether
or not the charge of incitement against the 2nd respondent is
proved.
I have set out
above as to what the burden of proof should be in a case of this nature and how
it should be applied. In all the circumstances of this case, I am unable to say
that the petition has proved those matters to my satisfaction. The conduct at
behaviour of the petitioner leaves a seriout doubt in my mind to whether or not
the incidents spoken of by him happened the manner narrated by the petitioner.
In fact, Mr. Choksy state that the material before the Court shows that the
petitioner left the custody of the authorities on the night of the 9th
August as a free man without any injuries on him or without his drawn the
attention of the Magistrate to any injuries on him and, there fore, there is no
burden on the authorities to discharge as to how the petitioner came by the
injuries set out in the medic reports.
Even if we were to assume that this allegation has
been proved adopting the lowest degree of probability in the range permittE by
the rule of a balance of probability, I still entertain a doul as to whether
the liability of the State for these alleged acts coul be established as a
matter of law.
In the instant case if liability is to be imputed
to the State, must be on the basis of an administrative practice and not on the
basis of an authorisation, direct or implied, or that these act were done for
the benefit of the State. If we rule out the alleg; tions against the 2nd
respondent, we have here the case of th petitioner being roughly handled by
some army personnel while the petitioner was being transported to Kalmunai town
from the spot where he was taken into custody. This involved a drive of about
half an hour or a little more. This assaulting is alleged to have occurred on the
high road, in public apparently under the cover of darkness. It may be noted
that the instructions and tv responsibility of the army to which he was
temporarily handed over was only to transport him and hand him over to the
police at the other end. The learned Deputy Solicitor-General has informe us
that at this time no emergency had been proclaimed and the army authorities had
no more powers over the petitioner than any civilian. This does not appear to
be identical wit the case of an assault or ill-treatment by, say the police,
who having arrested a person, ill-treats him in the confines of the polic station and in the privacy of a secluded cell
in the course of an for the purpose of an investigation.
The incident has also to be viewed in the context
of the extraordinary conditions prevailing in the locality. It is apparent
that the base passions of many persons in that area had been excited by
communal passions. There was tension in the air. Mr. Pullenayagam suggested
that the army personnel were all Sinhala persons, but there is no definite
evidence of it. That a few persons belonging to other races could have been
among the personnel cannot be ruled out. As far as the police personnel were
concerned, we find them not confined entirely to one race or community. The
petitioner himself says that on one occasion some of the other soldiers
cautioned those who were assaulting him. The insinuation being that they
cautioned his tormentors against their leaving telltale marks of violence on
the petitioner's body. The petitioner has also said that at another point, on
the journey, some soldiers intervened and prevented the petitioner from being
shot by the others. All in all the acts complained of, if they had taken place
as alleged, seem to be in the nature of individual and personal acts due to
some aberration or idiosyncracy. They are also suggestive of the venting of
some grievance of a personal or private nature or in consequence of some strong
passion, prejudice or malice. They are admittedly illegal and criminal acts and
not merely acts that are unauthorised and ultra
vires. It is also not possible to characterise those acts as being
incidental to the authority and powers vested in those persons nor have they
been performed to further some objective of the State.
This does not of course mean that an individual can
be exposed and abandoned to the mercies of the army or police personnel and
left without redress. A high standard of discipline is expected of the armed
services and the police. Complaints made against such personnel must be
promptly and fairly investigated. Disciplinary action should be taken where
necessary and suitable compensation by way of an ex gratia payment paid to innocent persons who may have suffered
at their hands.
In the Irish case
the Court has adverted to some of the measures taken by the U.K. Government
which were designed to prevent ill-treatment and to grant redress in such
instances. These provisions can provide a useful guide to the authorities in
this country. Apart from the normal regulations requiring humane treatment,
certain special directives had been issued in this regard. There was a
directive on interrogation prohibiting the use of coercion. Medical
examinations, the keeping of comprehensive records and the immediate reporting
of complaints were made mandatory. But the Court added that mere directives
would be insufficient and there must be satisfactory evidence that there has
been the
diffusion
and enforcement at all levels of these directives ai that they were in fact
implemented and obeyed in practice. After the Parker Commission Report,
complaints both against police and army personnel were referred to an outside
authority for investigation and there was evidence of prosecution or disciplinaryacti
in numerous cases. In many cases compensation had been paid.
We have before us the affidavits of the three
Service Commders - the Commanders of the Army, the Navy, and the Air Force -
and also of the Inspector-General of Police. They state categorical' terms that
they have at no time authorised, encourag or condoned unlawful acts or breaches
of discipline among their personnel. Statute law, regulations and directions
also outl; such acts in categorical terms. They state that when such fringements
are brought or come to their notice they have not hesitated to set in motion
disciplinary or criminal proceeding to punish the offender.
The Inspector-General of Police refers in
particular to action he has taken in similar cases. In 1980 alone, in consequence
of complaints against members of the Police force, 108 officers have been
prosecuted, 10 officers have been dismissed, the enlistme of 48 persons has
been cancelled and 235 other officers hi been interdicted. In regard to the
incidents that took place Jaffna in 1981, a committee of senior police officers
Headed R. Suntheralingam, D.I.G. had conducted a full scale investigati and
proceedings have been set on foot against nearly 175 pol officers.
As far as this case is concerned, the I.G. states
that when it was found that the petitioner had complained of an assault and was
warded at the Batticaloa hospital, the Headquarters Inspector, Batticaloa, was
directed to record the petitioner's statement. In consequence of the statement
recorded from the ptioner, the Superintendent of Police, Batticaloa, has
instruc A.S.P., Amparai, to hold an investigation. The petitioner, though
summoned by letter dated 11th September 1981 to attend inquiry, has
failed to do so.
The Army Commander has stated that no complaint wl
soever has been made to the army authorities by the petitic alleging that he
was tortured or ill-treated by army person .Had he received any such complaint,
he would have taken pros steps to cause investigations to be made and if the
allegations v true, action would have been taken against the personnel guilt
such indiscipline. He has drawn the attention of Court to a telegram
sent
by the petitioner to His Excellency the President which had been referred to
him for action and on which he had initiated proceedings. The telegram reads:
"18 morning public of Kalmunai assaulted by
Army personnel. Beg to initiate action to stop please - Kandiah Velmuruge
D.D.C. Member Amparai."
It would be observed that this complaint by the
petitioner himself made to the head of State does not contain one word about
his own alleged torture and ill-treatment. In the face of material such as
this, could any tribunal have confidence in the veracity of the petitioner or
place any reliance on the allegations he has sought to make in this case. It is
for this reason that I agree with my brother Ismail, J's conclusiori that even
his allegation of army assault has not been proved to our satisfaction.
On the face of this material, I do not think that
the alleged acts of torture and ill-treatment administered by army personnel
has been made out or could be imputed as a liability of the State as a matter
of law. The alleged acts have not been authorised, encouraged, or countenanced
or performed for the benefit of the State. The material before us shows that
they would also not have been tolerated by the authorities, and redress in all
probability granted if there had been a genuine complaint. In these circumstances
I am of the view that no legal liability under the constitutional provisions
can be imputed to the State.
For these reasons I am of the opinion that this
application fails. I would also make an order for costs in favour of the 2nd
respondent.
Application dismissed.