Subject to the provisions of sections 3, 4 and 5 of this Cons-titution no law shall abrogate, abridge or infringe or autho-rise the abrogation, abridgment or infringement of any ofthe rights and freedoms thereinbefore recognised and declaredand in particular no Act of Parliament shall —
authorise or effect the arbitrary detention, imprisonment or
exile of any person
impose or authorise the imposition of cruel and unusual
treatment or punishment
deprive a person who has been arrested or detained
(ii) of the right to retain and instruct without delay a legal .adviser of his own choice and to hold communication withhim.
deprive a person of the right to a fair hearing in accordancewith the principles of fundamental justice for the deter-mination of his rights and obligations.
deprive a person of the right to such procedural provisionsas are necessary for the purpose of giving effect and protec-tion to the aforesaid rights and freedoms.
Sections 1 and 2 of this Constitution shall not apply in relationto any law that is in force in Trinidad and Tobago at the com-mencement of this Constitution.
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6.11 For the removal of doubts it is hereby declared that ifany person alleges that any of the provisions of the fore-going 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 respect1 to the same matter which is lawfully available, thatperson may apply to the Higher Court for redress.”
In interpreting these provisions, their Lordships of the Privy Coun-cil said:—
"Read in the light of the recognition that each of the highlydiversified rights and freedoms of the individual described is s.1already existed, it is in their Lordships view clear that the protec-tion afforded was against contravention of those rights or free-doms by the State or by some other public authority endowed bylaw with coercive powers. The chapter is concerned with publiclaw, not private law. One man's freedom is another man's res-triction; and as regards infringement by one private individual ofthe rights of another private individual s. 1 implicitly acknow-ledges that the existing law of torts provided a sufficient accom-modation between their conflicting rights and freedoms to satisfythe requirements of the new Constitution as respects those rightsand freedoms that are specifically referred to."
Thereafter their Lordships held that•
"the order of Maharaj, J., committing the appellant to prisonwas made by him in the exercise of the judicial power of the State,the arrest and detention of the appellant pursuant to the Judge'sorder was effected by the executive arm of the State. So if hisdetention amounted to a contravention of his rights under s. 1(a)it was a contravention by the State against which he was entitledto protection."
In considering the question of the contravention of section 1, itwas necessary to find out whether the law in force before the Consti-tution came into, effect had required that the Judge must specifysufficiently the nature of the contempt charged before a personcharged with contempt could be convicted. This was because thissection proceeds on the basis that fundamental rights which it coversare already secured to the people of that country by existing law.Such a requirement was found to exist in the common law, antf theirLordships said that it would have been sufficient even if such a righthad been enjoyed de facto, as the constitutional provisions haddignified those rights to the level of a constitutional right under theconstitutional provisions.
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Before granting relief to the appellant, their Lordships went onto deal with a formal objection raised by the State. The Attorney-General argued that relief should not be granted to the petitionerbecause it was a long established rule of public policy that a judgecannot be made personally liable in law for anything done by himin the exercise or purported exercise of his judicial functions. It ismainly on this point.that Lord Hailsham dissented from the majorityview. The majority in overruling this objection said:—
"In the first place no human right or fundamental freedomrecognised by Chapter I of the Constitution is contravened by ajudgment or order that is wrong and liable to be set aside onappeal for an error of fact or substantive law, even where the errorhas resulted in a person serving a sentence of imprisonment. Theremedy for errors of these kinds is to appeal to a higher court.When there is no higher court to appeal to then none can say thatthere was error. The fundamental human right is not to a legalsystem that is infallible but to one that is fair. It is only errors inprocedure that are capable of constituting infringements of therights protected by s. 1(a) and no mere irregularity in practice isenough, even though it goes to jurisdiction, the error must amountto a failure to observe one of the fundamental rules of naturaljustice. Their Lordships do not believe that this can be anythingbut a very rare event."
Straightaway it should be mentioned that Mr. Choksy sought todistinguish this case and the other case coming from this same juris-diction, to which I will presently refer, on the ground that theyare based on a wider application of those rights than under our cons-titutonal 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 drewour attention to th.e use of the terms "executive" in contradistinc-tion to the terms "legislature" and "judicial" in these provisions.He submitted that the words "by executive or administrative action"contained in Article 126 must necessarily be limited to the acts ofpnly one of the traditional triumvirate of State organs, namely, thelegislative, the executive, and the judiciary.
He next referred to Chapter V11 titled "The Executive" whichdeals with the President of the Republic, Chapter V111, also titled"The Executive", dealing with the Cabinet of Ministers, and toChapter 1X again titled "The Executive", dealing with thePublic Service. Similarly it would be found that Chapters X. XI andX11 are headed "The Legislature" and Chapters XV and XV1
Vetmurugu v. The Attorney-General and Another
deal with the judiciary and the Courts. It was Mr. Choksy'ssubmission that we have in the above provisions a definition ofthe term "Executive "and unlike in the cases from the West Indiescited by Mr. Pullenayegam, our jurisdiction in respect of violationsof fundamental rights is confined to such "infringement byexecutive or administrative action" and does not have the widthand range of the jurisdiction obtaining in the West Indies where viola-tions "by the State or other public authority" is made justiciable. Infact in Thornhill v. Attorney-General (supra), which followed the Ma-haraja case (supra), the Privy Council explained what is meant by publicauthority and said that it must be understood as embracing local aswell as central authorities and include any individual officer who exer-cises executive functions of a public nature.
Although there is a great deal of force in Mr. Choksy's submis-. sion on this point, it is possible for us to dispose of this case on anarrower basis without a discussion of the matter at the level ofthe fundamental constitutional structure of the two countries.Mr. G. P. S. de Silva has sought to distinguish this case on a muchnarrower basis, namely that in Maharaja's case we have an instanceof an inadvertent omission on the part of the judge to complywith a fundamental right, whereas the allegations in the instantcase is in respect of certain positive and illegal acts quite outsidethe ambit of the officer's normal functions or such functions asare incidental thereto. Thornhill's case is in some respects closer tothe present case, in that it concerns certain wrongful acts or omi-ssions on the part of the police which took place in the course ofan investigation and was done in furtherance of such investigation.Thornhill's case, therefore, may have greater relevance to the pre-sent case than Maharaja's case.
It may however be mentioned that even in the Maharaja's casethere was some reluctance and hesitation on the part of thePrivy Council to make the acts of the judiciary justiciable underthese provisions. It would appear that some pains have been takenin an effort to shift liability as much as possible.away from thejudicial sphere and bring the impugned act, if not within the exe-cutive sphere, at least as close as possible- to it. It was stated that,though redress was claimed from the State for a violation of thefundamental rights by the judicial arm of the State for making anorder of commitment to prison, the arrest and detention of theappellant however was effected by the executive arm of the State. I
I shall now deal with Thornhill's case. The appellant in this casewas arrested and taken to a police station in consequence of ashoot-out with the Police. As guaranteed in section 2 c (ii) of the
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Constitution. The appellant made several requests to be given theopportunity of communicating with his lawyer. The police did notaccede to his request. The appellant was suspected by the policeof committing other crimes about which they wished to interro-gate him. It would appear that there was nothing in connectionwith the investigation that would have made it inconvenient forhim to be allowed to consult his lawyers. The only reason why hewas not allowed to do so was because the police officers interro-gating him were of the view that if the appellant were to obtain alawyer's advice as regards his legal rights, he may.decline to answersome of the questions that would have tended to incriminate himand the police would have been less -likely to obtain from him aconfession as regards the commission of earlier offences.
The reasoning in this case is somewhat complex and involvedand turns on the interpretation of sections 1, 2 and 3 of thatConstitution. Although the right claimed by the appellant is con-tained in section 2 (c)(ii), it was contended for the respondents,which included the Attorney-General, that the effect of section 3of the Constitution was to reduce the ambit of sections 1 and 2and limit them to rights that had obtained and which could havebeen enforced by a person under a written law or in terms of thecommon law prior to the coming into operation of this Consti-tution. The respondents submitted that the petitioner had no suchenforceable right at the relevant point of time.
The Privy Council however held that section 2 only spells outexpressly and in greater detail what is described in more generalterms in section 1 and section 2 c(ii) and has adequately securedthe rights of the appellant to have access to a lawyer. So interpre-ted, it was unnecessary to embark on a consideration as to whe-ther or not such a right subsisted under the law at the commence-ment of the Constitution. Their Lordships however proceeded tointerpret section 1 and said that they caught up only de jurerights, but included de facto rights enjoyed by a person as a resultof settled executive policy or the manner in which administrativeor judicial discretion had been exercised. They said that the rightto consult a lawyer had in fact been a matter of settled practice.
Having given a ruling on the legal provisions, their Lordshipsproceeded to consider the question of the liability of the Statefor the acts of the police officers. It would appear from the judg-ment that there had been some discussion about the precise rela-tionship of a police officer to the executive particularly becausethere had been previous authority for the proposition that personswho have been responsible for appointing a constable were not
Velmurugu v. The Attorney-General and Anothei
held to be vicariously responsible for his tortious acts done by himin purported exercise of his common law powers of arrest. Dealingwith this aspect of the matter, their Lordships said –
"It is beyond question, however, that a police officer incarrying out his duties in relation to the maintenance of order,the detection and apprehension of offenders and the bringingof them before a judicial authority is acting as a public officercarrying out an essential executive function of any sovereignstate — the maintenance of law and order or to use the expres-sion originally used in English "preserving the King's peace."
It is also beyond question that in performing those functionspolice officers are endowed with coercive powers by the com-mon law even apart from statute. Contraventions by the policeof any of the rights or fundamental freedoms of the individualthat are recognised by Chapter I of the Constitution thus fallsquarely within what has been held by the Judicial Committeein Maharaja v. Attorney-General of Trinidad and Tobago, No.(2) 1979 A.C. 385—396^) to be tho ambit of the protectionendowed by section 6 viz. contraventions 'by the state or bysome other public authority endowed by law with coercivepowers.' In this context public authority must be understood asembracing local as well as central authorities and including anyindividual officer who exercises executive functions of a publicnature. Indeed the very nature of the executive functions whichit is the duty of police officers to perform is likely in practice toinvolve the commonest rule of contravention of an individual'srights under section 1 (a) and (b) through over-zealousness incarrying out those duties."
Mr. Pullenayagam relied heavily on the above passage for thesubmission that acts or omissions on the part of a police officerdone under colour of office or in the purported exercise of hispowers would involve the state in liability. Nevertheless he madea significant concession, namely that there could be acts whichcan be regarded as an individual or personal act not entailing lia-bility on the State. As an example he gave the case of a policeofficer arresting a woman, then taking her to the police stationand raping her. This concession however is prima facie inconsiste-nt 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 onehas to search for an answer in the present case. This is particularlyso because the statement of law contained in the foregoing passage
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in Thornhill's case as Mr. G. P. S. de Silva argued, need not be giventhe wider meaning contended for by Mr. Pulienayagam and by nomeans provides a ready-made answer. Mr. de Silva submitted thatthis statement was an obiter dictum and it was not permissible to givea wider construction to the words than was warranted by the facts.
It would be convenient if, at this stage, I return to the secondaspect of Mr. Choksy's argument where he had sought to demarcatethe liabilty of the State for the acts of its officers and thereafterdeal with Mr. de S’lva's submissions.
Proceeding from his submission that under our Constitution it isthe illeqal acts of the executive organ alone that could be thesubject-matter of proceedings under Article 126, Mr. Choksycontended further that the act of a public officer, even in theexecutive sphere, would not attract the liability of the State unlesssuch act can be said to constitute the act of the executive. Heexplained this to mean that an act to qualify for such liability mustsignify the will of the collective body called the Executive. In thisconnection he drew our attention to the provisions of the Consti-tution which provides for the collective responsibility of theCabinet and stated that likewise an act of an executive officerfrom the highest level to the most subordinate must represent andbe in accordance with the collective will of the government, if it isto be regarded as constituting executive action. He was howeverprepared to concede that an unlawful act occurring as part of asettled administrative practice could legitimately be included inthe category of executive acts.
The effect of this argument is to further restrict the ambit ofArticle 126. If only such acts as representing the will of the State ordone in consequence of a settled administrative practice can alonebe admitted as falling within the ambit of Article 126, then thebulk of unlawful and illegal acts committed by executive andadministrative officers would be left without redress. Such aninterpretation would even exclude unlawful acts committedthrough over-zealousness in carrying out duties which the PrivyCouncil said involves the commonest risk of the contravention ofan individual's right, and for which the State should be held liable.
1 agree with Mr. Pulienayagam when he said that such a constructionwould empty these provisions of nearly all content and makethese safeguards ineffective and void.
Velmurugu v. The Attorney-General and Another
For the purpose of his argument Mr. Choksy laid undue empha-sis on the word "executive" to the exclusion of the connectedword "administrative" in Article 126. Article 126 uses the expre-ssion "executive or administrative action." When my brotherSharvananda drew his attention to this, he said that the two wordswere synonymous and interchangeable and meant the same thing,namely the concept of the executive. Such a view was apparentlynecessary for the purpose of his argument. In my view the termi-nology in Article 126 has been chosen with some care and thejuxtaposition of these two terms conveys certain nuances of mea-ning suggesting that the liability of the State extends to theunlawful acts of a wider class of public officers, namely, subordi-nate officers at peripheral level who in nowise constitute the deci-.sion making core of the administration. I would adopt Mr. Pulle-nayagam's description of executive officers as those whose, handsare on the levers of power. All those not falling within this cate-gory are designated administrative officers. I find Mr. Choksy'sinterpretation of Article 126 far too restrictive with the resultthat if accepted it would whittle down considerably the protectionof fundamental rights guaranteed and protected by the Consti-tution. Further reasons for my taking a different view will becomeevident 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 lessrestrictive than Mr. Choksy's interpretation and he conceded thatArticle 126 would catch up unlawful acts of an executive oradministrative officer provided they are performed in the courseof his duties and under colour of authority. At the time theseevents took place, a state of emergency had not been proclaimedand the army was merely assisting the police. Mr. de Silva submit-ted that the army personnel had no more authority than anycivilian. He stated that when the 2nd respondent handed thepetitioner to the army personnel and left saying, "Take him anddo as you like," the 2nd respondent had actually relinquished allcontrol he had over the petitioner and was literally to use coun-sel's words, "throwing him to the wolves."
It is strange that the State has chosen to put the entire weightof its argument on a statement alleged to have been made by the2nd respondent – but denied by him- and which interpreted in themanner suggested by the petitioner is certainly indefensible. For-tunately, I think, this argument is not entitlec’ o prevail either onthe facts or in principle. Mr. Silva also soug it suoport for hisargument from certain dicta in the judgments cited by Mr. Pulle-nayagam, which I do not again think are very much in his favour.
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in Thornhill's case, the infringement was by way of omissionand it related to a positive requirement expressed as a fundamentalright, namely the duty of the Police to aMc . the appellant toconsult a legal adviser. In Maharaja's case too, the infringementcomplained of was of an omission, namely the failure of the judgeto comply with a legal requirement to specify the nature of thecontempt that was alleged.
Firstly, it could validly be said that the facts in the instant caseare different in kind rather than degree from the facts in thosecases. For the purpose of this discussion I shall confine myself tothe alleged assault by the army personnel on the assumption thatthe burden of proof lying on the petitioner in that respect hasbeen discharged. Even this assumption will be shown later to beunjustified. The allegation against the 2nd respondent has beenruled out and .those facts are not relevant here. Here we have aninstance of an act of commission — the performance of a positiveact which is both ultra vires and illegal in nature. To that extent itcould be said that the cases cited by Mr. Pullenayagam are not ofreal assistance in this matter. Mr. de Silva's argument, if I unders-tood him right, included a further distinction that in those deci-sions the unlawful acts or omissions took place in furtherance ofthe matter or proceedings which those officers were lawfullyauthorised to do, or in the context of powers that could beimplied or incidental thereto. Here, there was the total absence ofany authority and it is a case of a wanton assault. He invoked insupport the concession made by Mr. Pullenayagam contained inthe example of a woman being ravished by the police officers andwanted to know how that example differed from the present case.
Although some of the distinctions made by Mr. de Silva in res-pect of these cases have a certain validity and the dicta relied onby him could be pressed to serve his arguments; I do not think hisanalysis of the problem any more than Mr. Pullenayagam's hasdealt satisfactorily with the underlying principles governing Stateliability for unlawful acts performed by these executive andadministrative officers.
The learned Deputy Solicitor-General sought to advance hisargument further by relying on certain decisions relating to vica-rious liability of a master for the acts of his servant in the sphereof the law of tort. I am in agreement with Mr. Pullenayagam thatthe test of liability formulated in those cases is not an appropriateor safe test for application in the present case. We are here dealingwith the liability of the State under public law, which is a newliability imposed directly on the State by the constitutional provi-
Velmurugu v. The Attorney-Genera! and Another
sions. While the decisions relating to the vicarious liability of amaster for the acts of his servant may be useful to the extent thatall cases where a master can be held liable in tort would undoub-tedly fall also within the liability of the State under the constitu-tional provisions, the converse need not be true unless we are togive a restricted interpretation to the constitutional provisions.The common law test of tortious liability therefore cannot pro-vide a sufficient test and we have to look elsewhere for the appro-priate principles.
In this regard I should like to mention that an indication ofwhat those principles are has to some extent been foreshadowed inThadchanamoorti's case (supra), although in that case the courtmerely quoted certain excerpts from foreign authorities but didnot think it was necessary, in the circumstances of that case, toenunciate those principles in any detail. When I expressed thoseviews I was generally having in mind a situation like the presentcase. The excerpts are taken from the decision of the EuropeanCourt of Human Rights in the Irish case and certain observationsabout that case that appear in Harris's "Cases and Materials onInternational Law," Mr. Pullenayagam alleges that in Thadcha-namoorti's case (supra) this Court had misunderstood the effect ofthe ruling in the Irish case: The reference to an "administrativepractice" in that material, he states, is with reference to the pleaof the need for the exhaustion of domestic remedies required byArticle 26 of the Convention and has no relevance whatsoever tothe present context. I shall examine that contention later in thisjudgment.
Article 11 which gives protection from torture and ill-treatmenthas a number of features which distinguish it from the other funda-mental rights. Its singularity lies in the fact that it is the onlyfundamental right that is entrenched in the Constitution in thesense that an amendment of this clause would need not only atwo-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 equalapplication to everybody and which is no way can be restricted ordiminished. Whatever one may say of, the other rights, this rightundoubtedly occupies a preferred position.
Having regard to its importance, its effect and consequences tosociety, it should rightly be singled out for special treatment. It istherefore the duty of this Court to give it full play and see that itsprovisions enjoy the maximum application.
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Brandeis J. in .Iowa – Des Moines National Bank v. Bennett,(1931) 284 US 3239'®) . dealing with the liability of the Statefor acts of public officer said –
"The prohibition of the 14th Amendment, it is true hasreference exclusively to action by the State as distinguishedfrom action by private individuals. But acts done by virtue ofa public position under a State Government and in the name and
for the Stateare not to be treated as if they
were the acts of private individuals, although in doing them theofficial acted contrary to an express command of State Law.Where a State official, acting under colour of State authorityinvades in the course of his duties a private right secured by thefederal Constitution, that right is violated, even if the Stateofficer not only exceeded his authority, but disregarded specialcommands of the State Law"
Whatever be the application of this statement to the otherfundamental rights, in our country, in my view. Article 11 willbe rendered ineffective unless we interpret it on more or lessthe lines set above. But I think the guarantee contained in Article11 is capable of further refinement.
Earlier in this judgment, when, dealing with Mr. Choksy'ssubmissions, I favoured the view that in the relevant provisions,a distinction has been drawn between high State officers andsubordinate personnel. Such high State officers constitute theExecutive, but subordinate officers act for and on behalf of theState. Article 126 lends itself to this interpretation though I findrightly or wrongly text writers and tribunals have thought onsomewhat the same lines when dealing with the liability of aState for the acts of its officials in international law.
I am inclined to the view that the State should be held strictlyliable for any acts of its high State officials. I should think, in thepresent case, if the allegations against the 2nd respondent had beenproved, this would have constituted an act of the State itselfand entailed the liability of the State for such acts.
The liability in respect of subordinate officers should applyto all acts done under colour of office, i.e., within the scope oftheir authority, express or implied, and should also extend tosuch other acts that may be ultra vires and even in disregard of aprohibition or special directions provided that they are done inthe furtherance or supposed furtherance of their authority or doneat least with the intention of benefiting the State.
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The above principles appear to be generally supported by thecase law and Mr. de Silva, I think, was prepared to admit liabilityto this extent or almost to this extent. The illustration Mr. Pul-lenayagam, gave on his own admission falls outside these limits.As I stated earlier, Mr. de Silva's position is that the instant caseis practically.identical with the exception indicated by Mr. Pul-lenayagam.
My own view is that the liability indicated in the cases citedby counsel need not be the last word on the subject. Justice andcommon sense demands a further elaboration of these principlesof State liability to dispose of cases like the present one. Mr. Pul-lenayegum, I am sure, would not have fought this case with somuch tenacity if he had not felt a sense of injustice about thewhole affair. It is the marginal character of cases such as this —assuming that the assault by the army personnel took place asalleged — that make them so disturbing. If going by the case law,we were to draw the line here so as to exclude liability, in thosesituations, I am not at all sure that we would have done all wecan to discharge the trust placed in us to safeguard these rights.
International tribunals and jurists do not appear to agreeon the precise principles that should govern State liability insituations such as this. It is in this context that I found myselfthinking of the concept of "administrative practice" referred toearlier, which has come in handy in analogous situations. The appli-cation of such a concept could help to extend State liability tocases like this and the one given by Mr. Pullenayagam so that thevtoo can be brought within State responsibility itthe material beforethe Court can show that the occurrence of the acts complained ofcan be attributed to the existence of a general situation created orbrought about by the negligence and indifference of those in au-thority.
In the Irish case (Ireland v. U. K., Jan. 18, 1978) '131 the IrishGovernment complained to the European Human Rights Commis-sion against the U.K. Government's policy of internment, inves-tigation and detention ip Northern Ireland. The Royal UlsterConstabulary (R.U.C.) Special Branch had established a number ofinterrogation centres throughout the province and applied variousmethods of interrogation in order to secure confessions andinformation about the outlawed I.R.A. One of the allegationsmade against the U.K. Government was that some of the personsarrested had been subjected to interrogation in depth involving theuse of five techniques, namely, wall standing, hooding, subjectionto noise, deprivation of sleep, and deprivation of food. These
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devices were used to deprive prisoners of the normal exercise oftheir senses to facilitate the obtaining of confessions. At the PalaceBarracks Centre, the R.U.C. forced prisoners to stand spread-eagled against a wall and severely beat them up. At other centresvarious punishments were inflicted on the prisoners. The IrishGovernment alleged that these acts constituted an "administrativepractice" *m violation of Article 3 of the European Convention onHuman Rights.
It may be of interest to know that although the U.K. Govern-ment admitted from the start that the use of the five techniqueswas authorised at "high level", such authority was "never com-mitted to writing or authorised in any official document, the tech-niques had been orally taught to members of the R.U.C. bythe English Intelligence Centre at a Seminar". It was thereforeapparent that the Irish Government came before the Commissionclaiming a violation based on an "administrative practice", and noton the basis of known and specific directions given by the U.K.Government authorising such wrongful acts. Apart from the com-plaint of the Irish Government, there were also individual com-plaints made on the same basis, namely, the violation of Article 3
by means of an "administrative practice". These individualcomplaints were consolidated and dealt with under the nameDonnally and others v. United Kingdom. It should be notedthat the accusation of the Infringement of Article 3 was foundedsolely on the basis of an administrative practice. The followingparagraph from the judgment makes this clear.—
"158. Following the order of 11th February 1977 (see Para-grahp 8 above) the Irish Government indicated at the hearing inApril 1977, that they were asking the court to hold that therehad been in N. Ireland from 1971 to 1974 a practice or prac-tices in breach of Article 3 and to specify if need be where theyhad occurred."
The findings of both the Commission and the Court also putsthe matter beyond any argument. In paragraph 147 the Court repro-duces the conclusions of the Commission, In sub-paragraphs iv andvi, the Commission holds —
"iv. unanimously that the combined use of the five tech-niques in the case before it constituted a practice of inhumantreatment and of torture in breach of Art. 3.
vi. Unanimously that there had been at Palace Barracks,Holywood in the autumn of 1971 a practice in connection
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with the interrogation of persons by members of the R. U. C.which was inhuman treatment in breach of Art. 3 of the Con-vention."
The Court's own conclusions regarding the violation of Article 3are as follows:-
"3. holds by sixteen votes to one that the use of the firetechniques in Aug. and Oct. 1971 constituted a practice ofinhuman and degrading treatment which practice was in breachof Art. 3.
6. holds unanimously that there existed at Palace Barracksin the Autumn of 1971 a practice of inhuman treatment, whichpractice was in breach of Art. 3."
The confusion in Mr. Pullenayagam's mind has apparently ari-sen because the question of an administrative practice can alsohave 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 entertainedunder the Convention, a party must exhaust all domestic remedies.In the Irish case apparently that had not been done. So, when thatplea was taken in that case, it was countered by the complainantGovernment that if a Government countenances an administrativepractice that is a violation of the Convention, domestic remediesin that country are likely to be non-existent or ineffective andaccordingly a plea under Article 26 should be ruled out. Theallegation of the existence of an "administrative practice" wasthus relied on by the Irish Government not in subsidiary mannerby way of defence — though it came in useful also as a defence —but it constituted the main thrust of the complainant Govern-ment's case. A practice, the Court said, does not itself constitutea violation separate from the act complained of, meaning that incertain circumstances where there is the need to rely on the exis-tence of an "administrative practice", the specific act complainedof becomes a violation only when it is viewed against the back-ground of-such practice. This ought to be sufficient to dispel anymisunderstanding that Mr. Pullenayagam may have that Thadcha-namoorti's case has substituted the test of "administrative prac-tice" as against the test of executive or administrative action" req-uired by Article 126 of our Constitution.
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The concept of "administrative practice" therefore appearsto carry with it certain features that give it wide-ranging applica-tion in a number of different situations. In the Greek case, a com-plaint was made in 1967 by the three Scandinavian countries,Denmark, Norway and Sweden against Greece, after army officersin Greece had seized power by a coup d'etat. One of the chargeswas that of torture and ill-treatment of political prisoners.
The Commission, after carefully reviewing all evidence, conclu-ded that torture had been inflicted in a number of cases and thatthere 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 arrested forpolitical reasons, that the Greek authorities, confronted withnumerous and substantial complaints and allegations of tortureand ill-treatment, had failed to take any effective steps to investi-gate them or remedy the situation.
In the course of its order, the Commission gave a ruling on theimpact of an "administrative practice" in relation to a plea ofthe exhaustion of domestic remedies. The Commission said:
"25. Where, however, there is a practice of non-observanceof certain convention provisions, the remedies prescribed willof necessity be side-stepped or rendered inadequate. Thus ifthere was an administrative practice of torture or ill-treatment,judicial remedies prescribed would tend to be rendered ineffec-tive by the difficulty of securing probative evidence and admini-strative enquiries would either be non-instituted or if they werewould be likely to be half-hearted and incomplete"
The Commission then went on to give a definition of the expres-sion "administrative practice" which can by no means be limitedin application only to a case where plea under Article 26 is taken.The Commission said:
"28two elements are necessary to the existence of an
administrative practice of torture or ill-treatment; repetitionof acts and official tolerance. By repetition of acts is meant asubstantial number of acts of torture or ill-treatment whichare the expression of a general situation. The pattern of such actsmay be either on the one hand, that they occurred in the sameplace, that they were attributable to the agents of the samepolice or military authority or that the victims belonged to
Velmurugu v. The Attorney-General and Another
the same political category; or on the other hand, that theyoccurred in several places or at the hands of distinct authorit-ies or were inflicted on persons of varying political affiliations.
29. By official tolerance is meant that though acts oftorture or ill-treatment are plainly illegal, they are tolerated inthe sense that the superiors of those immediately responsiblethough cognisant of such acts takes no action to punish themor prevent their repetition; or that the higher authority, in theface of numerous allegations manifest indifference by refusingany adequate investigation of their truth or falsity or that inin judicial proceedings, a fair hearing of such complaints isdenied."
In the Irish case these principles have been further elucida-ted when the court observed –
"159 A practice incompatible with the Convention consistsof an accumulation of identical or analogous breaches which aresufficiently numerous and inter-connected to amourt notmerely to isolated incidents or exceptions but to a pattern or
systema practice does not of itself constitute a violation
separate from such breaches. It is inconceivable that the higherauthorities of a State should be, or at least should be entitledto be, unaware of the existence of such a practice. Furthermoreunder the Convention those authorities are strictly liable for theconduct of their subordinates, they are under a duty to imposetheir will on subordinates and cannot shelter behind theirinability to ensure that it is respected."
Mr. Pullenayaqam's submission, as I stated earlier, is wide en-ough to take in an alternate ground irrespective of the chargeagainst the 2nd respondent, that in any event the evidence wasadequate to establish the probability of the petitioner coming byhis injuries at the hands of the army personnel. He has arguedbackwards from the medical reports and sought to link the injurieswith the events of the 9th August. The reports show that he hadten injuries, nine of them contusions and abrasions and one a frac-ture of neck of left side of mandible, said to be grievous. Thepetitioner is also said to have a heart complaint (mitral incompe-tence) which has nothing to do with the alleged ill-treatment.Incidentally, the inflictment of these injuries would not constitutetorture if we are to go by the definition given to that term in theIrish case. The injuries were found on the petitioner on the 11thAugust and since the petitioner had been exposed to a situation onthe 9th night when he was in the custody of army personnel
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who he alleges assaulted him, Mr. Pullenayagam submits thatwe should hold that the charges against the army personnel havebeen established irrespective of whether or not the charge of in-citement against the 2nd respondent is proved.
I have set out above as to what the burden of proof should bein a case of this nature and how it should be applied. In all thecircumstances of this case, I am unable to say that the petitionerhas proved those matters to my satisfaction. The conduct andbehaviour of the petitioner leaves a seriout doubt in my mind asto whether or not the incidents spoken of by him happened inthe manner narrated by the petitioner. In fact, Mr. Choksy statedthat the material before the Court shows that the petitioner leftthe custody of the authorities on the night of the 9th Augustas a free man without any injuries on him or without his drawingthe attention of the Magistrate to any injuries on him and, there-fore, there is no burden on the authorities to discharge as tohow the petitioner came by the injuries set out in the medicalreports.
Even if we were to assume that this allegation has been provedadopting the lowest degree of probability in the range permittedby the rule of a balance of probability, I still entertain a doubtas to whether the liability of the State for these alleged acts couldbe established as a matter of law.
In the instant case if liability is to be imputed to the State, itmust be on the basis of an administrative practice and not on thebasis of an authorisation, direct or implied, or that these actswere done for the benefit of the State. If we rule out the allega-tions against the 2nd respondent, we have here the case of thepetitioner being roughly handled by some army personnel whilethe petitioner was being transported to Kalmunai town from thespot where he was taken into custody. This involved a drive ofabout half an hour or a little more. This assaulting is alleged tohave occurred on the high road, in public apparently under thecover of darkness. It may be noted that the instructions and theresponsibility of the army to which he was temporarily handedover was only to transport him and hand him over to the police atthe other end. The learned Deputy Solicitor-General has informedus that at this time no emergency had been proclaimed and thearmy authorities had no more powers over the petitionerthan any civilian. This does not appear to be identical withthe case of an assault or ill-treatment by, say the police, whohaving arrested a person, ill-treats him in the confines of the policestation and in the privacy of a secluded cell in the course of andfor the purpose of an investigation.
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The incident has also to be viewed in the context of the extra-ordinary conditions prevailing in the locality. It is apparent thatthe base passions of many persons in that area had been excitedby communal passions. There was tension in the air. Mr. Pullena-yagam suggested that the army personnel were all Sinhala persons,but there is no definite evidence of it. That a few persons belong-ing to other races could have been among the personnel cannotbe ruled out. As far as the police personnel were concerned, wefind them not confined entirely to one race or community. Thepetitioner himself says that on one occasion some of the othersoldiers cautioned those who were assaulting him. The insinuationbeing that they cautioned his tormentors against their leaving tell-tale marks of violence on the petitioner's body. The petitionerhas also said that at another point, on the journey, some soldiersintervened and prevented the petitioner from being shot by theothers. All in all the acts complained of, if they had taken place asalleged, seem to be in the nature of individual and personal actsdue to some aberration or idiosyncracy. They are also suggestiveof the venting of some grievance of a personal or private natureor in consequence of some strong passion, prejudice or malice.They are admittedly illegal and criminal acts and not merely actsthat are unauthorised and ultra vires. It is also not possible to cha-racterise those acts as being incidental to the authority and powersvested in those persons nor have they been performed to furthersome objective of the State.
This does not of course mean that an individual can be exposedand abandoned to the mercies of the army or police personneland left without redress. A high standard of discipline is expectedof the armed services and the police. Complaints made againstsuch personnel must be promptly and fairly investigated. Disci-plinary action should be taken where necessary and suitable com-pensation by way of an ex gratia payment paid to innocent per-sons who may have suffered at their hands.
In the Irish case the Court has adverted to some of the measurestaken by the U.K. Government which were designed to preventill-treatment and to grant redress in such instances. These provi-sions 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 wasa directive on interrogation prohibiting the use of coercion.Medical examinations, the keeping of comprehensive records andthe immediate reporting of complaints were made mandatory.But the Court added that mere directives would be insufficientand there must be satisfactory evidence that there has been the
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diffusion and enforcement at all levels of these directives andthat they were in fact implemented and obeyed in practice. Afterthe Parker Commission Report, complaints both against police andarmy personnel were referred to an outside authority for investi-gation and there was evidence of prosecution ordisciplinaryactionin numerous cases. In many cases compensation had been paid.
We have before us the affidavits of the three Service Comman-ders — the Commanders of the Army, the Navy, and the AirForce — and also of the Inspector-General of Police. They state incategorical terms that they have at no time authorised, encouragedor condoned unlawful acts or breaches of discipline among theirpersonnel. Statute law, regulations and directions also outlawsuch acts in categorical terms. They state that when such in-fringements are brought or come to their notice they have nothesitated to set in motion disciplinary or criminal proceedingsto punish the offender.
The Inspector-General of Police refers in particular to actionhe has taken in similar cases. In 1980 alone, in consequence ofcomplaints against members of the Police force, 108 officers havebeen prosecuted, 10 officers have been dismissed, the enlistmentof 48 persons has been cancelled and 235 other officers havebeen interdicted. In regard to the incidents that took place inJaffna in 1981, a committee of senior police officers Headed byR. Suntheralingam, D.I.G. had conducted a full scale investigationarid proceedings have been set on foot against nearly 175 policeofficers.
As far as this case is concerned, the I.G. states that when itwas found that the petitioner had complained of an assaultand was warded at the Batticaloa hospital, the HeadquartersInspector, Batticaloa, was directed to record the petitioner's state-ment. In consequence of the statement recorded from the peti-tioner, the Superintendent of Police, Batticaloa, has instructedA.S.P., Amparai, to hold an investigation. The petitioner, thoughsummoned by letter dated 11th September 1981 to attend aninquiry, has failed to do so.
The Army Commander has stated that no complaint what-soever has been made to the army authorities by the petitioneralleging that he was tortured or ill-treated by army personnel.Had he received any such complaint, he would have taken promptsteps to cause investigations to be made and if the allegations weretrue, action would have been taken against the personnel guilty ofsuch indiscipline. He has drawn the attention of Court to a telegram
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sent by the petitioner to His Excellency the President which hadbeen referred to him for action and on which he had initiatedproceedings. The telegram reads:
"18 morning public of Kalmunai assaulted by Army per-sonnel. Beg to initiate action to stop please — Kandiah Velmu-ruge D.D.C. Member Amparai."
It would be observed that this complaint by the petitioner him-self made to the head of State does not contain one word abouthis own alleged torture and ill-treatment. In the face of materialsuch as this, could any tribunal have confidence in the veracityof the petitioner or place any reliance on the allegations he hassought to make in this case. It is for this reason that I agree withmy brother Ismail, J's conclusion that even his allegation of armyassault has not been proved to our satisfaction.
On the face of this material, I do not think that the alleged actsof torture and ill-treatment administered by army personnel hasbeen made out or could be imputed as a liability of the Stateas a matter of law. The alleged acts have not been authorised,encouraged, or countenanced or performed for the benefit ofthe State. The material before us shows that they would also nothave been tolerated by the authorities, and redress in all probabi-lity granted if there had been a genuine complaint. In these cir-cumstances I am of the view that no legal liability under theconstitutional 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 res-pondent.
Application dismissed.