Sarjun v Kamakteen and two others
KAMALDEEN AND TWO OTHERSSUPREME COURTSARATH N. SILVA, CJ.
SC FR 559/03MAY 14, 2007
Constitution Article 11, 14 (1) h, 13(1) – What is torture? – Is it linked to apurpose7 – Roads – Public property – Illegal obstructions by Police andsecurity personnel — Equality?
The petitioner and 3 others were transporting household furniture in their lorry,from Colombo to Katuwana. As they reached Habarana at night, he decided tospend the night at Habarana and parked the lorry on the side of the road. Thepetitioner had a permit to transport obtained under the Forest Ordinance,although a permit was not necessary.The petitioner claims that he obtainedsame out of an abundance of caution valid from 1 p.m. on 18.9.03 to 12 noon19.9.03. Later in the night the 1st respondent came up to the lorry and wantedto inspect the furniture, and had demanded a bribe which was not given. Thepetitioner was thereafter taken to the Police Station and was arrested for theillegal transportation of furniture. When the petitioner denied the charge, hewas assaulted, and later produced before the Magistrate. The petitionerpleaded guilty and was fined. The lorry was later released by the Magistrate.
The petitioner complains of violation of Article 11, by being subjected to tortureor to cruel, inhuman, degrading treatment or punishment.
The evidence clearly shows that the petitioner was subjected to cruel,inhuman, degrading treatment or punishment.
The plain meaning of the words in Article 11 does not warrant aqualification being placed on the word 'torture' by linking it to a purpose.The assault on the petitioner may not be linked to any purpose, howeversince it was an intentional infliction of severe pain a suffering petitioner'sfundamental right to freedom from torture has been infringed.
Sri Lanka Law Reports
[2007/ 2 Sri L.R
Per Sarath N. Silva, CJ.
'This case typifies the vicious link between abuse of authority, pursuit of graftand the infliction of torture on a citizen who insists on his right not to cave intoillegal demands of gratification and abuse of authority, whilst security concernshave to be addressed. Such action should be taken with the highest concernand respect for human dignity0.
The presence of groups of armed police and security personnelwho place illegal obstructions Is a common sight on our roads.These officers as manifest in the facts of this case do notappreciate that roads constitute public property and that everycitizen is entitled to the freedom of movement guaranteed byArticle 14(1)(h); any interruption of the exercise of such freedomby Police/security personnel would amount to an arrest and has tobe justified on the basis of a reasonable suspicion of havingcommitted an offence.
A tolerant society weighted between ruthless terrorism and theabuse of authority has lost the taste of freedom; it is only througha respect for human dignity and freedom guaranteed by theConstitution to all segments of our society that peace andnormalcy could be restored.
Per Sarath N. Silva, CJ.
■A person freely moving on the road in compliance with the law could bestopped and made to alight from the vehicle only on a reasonable suspicion ofillegal activity. Superior officers who do not take precautions to prevent anyinfringement by the subordinates who are detailed for duty would themselvesbe liable for the infringement of the freedom of movement and the freedomfrom arbitrary arrest guaranteed by Article 14(1)(h) and 13(1).
APPLICATION under Article 128 of the Constitution.
Case referred to:
(1) W.M.K.de Silva v Chairman, Ceylon Fertilizer Corporation 1989 2 Sri LR393 at 405.
Nizam Karlapper with M.f.M. Lynullah for petitioner.
P.K. Prince Perera with S.M.M. Mackan and l.K. Lalitha for 1st respondent.
Cur. adv. vult.
Sarjun v Kamaideen and two others
(Sarath N. Silva, C.J.)
July 31, 2007
SARATH N. SILVA, C.J.
The petitioner has been granted leave to proceed in respect ofthe alleged infringement of his fundamental right guaranteed byArticle 11 of the Constitution, by being subjected to torture or cruelinhuman, degrading treatment or punishment.
The specific allegation is against the 1st respondent, a ReservePolice Constable attached to the Habarana Police. The 2ndrespondent being the OIC had been discharged from theproceedings prior to the hearing of this matter.
The petitioner was at the time material a 29 year old employeeof a leading business establishment in Colombo, who had apermanent residence at Kalmunai in the Eastern Province. Hepurchased household furniture in Colombo including some woodenitems and made arrangements to transport them to Kalmunai in alorry belonging to his father. It appears that the family has abusiness establishment at Kalmunai. Although a permit was notrequired, out of an abundance of caution the petitioner obtainedone under the Forest Ordinance for the transport of the items ofwooden furniture, valid from 1.00 p.m. on 18.9.03 to 12 noon19.9.03.
The driver and two other persons being his father's employeestravelled with the petitioner in the lorry. They set off at about 2.00p.m. on the 18th from Colombo and reached Habarana at night-fall.Since they were warned of wild elephants on the Habarana-Polonnaruwa road, they decided to spend the night at Habaranaand parked the lorry on the side of the road.
Late in the night the 1st respondent and two others (notidentified) came up to the lorry and wanted to inspect the furniture.They said that the lorry cannot be parked on the side of the roadand should be taken to the Police Station.
The 1 st respondent demanded a bribe of Rs. 5,000/- to refrainfrom taking any further action.
The petitioner refused to pay the bribe and insisted that he hadnot done any illegal act and that the items of furniture were not
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being transported for trade but for personal use. Nevertheless thepetitioner was taken to the police station and produced before asenior officer who examined the permit and the receipt for thefurniture and stated that the petitioner could re-commence journeyat 4.00 a.m. It appears that transport is not permitted between 9.00p.m. and 4.00 a.m.
The petitioner and the others remained in the police station. Atabout 3.00 a.m. the 1st respondent came upto him and said thatthey are under arrest for the illegal transportation of furniture. Whenthe petitioner protested that they had done nothing wrong the 1 strespondent and two others, who have not been identified attackedthe petitioner with a wire causing him severe bodily pain andinjuries. He was forced into police cell and kept there till about 12noon when he was taken out and produced in the Magistrate'sCourt. The petitioner and the others were charged with havingcommitted offences under the Forest Ordinance. They pleadedguilty and were imposed fines of Rs. 5000A.
Since the lorry and the furniture were subject to forfeiture thepetitioner's father and he made a claim for these items and bothgave evidence at the inquiry that was held. The petitioner testifiedsubstantially on the lines stated above. The version suggested tohim in cross-examination was that the lorry was stopped by thepolice when it was travelling in the direction of Polonnaruwa at10.00 p.m. and that an offence was made out since transport wasnot allowed after 9.00 p.m. The suggestion was denied by thepetitioner.
The Magistrate in a well considered order accepted the versionof the petitioner that the lorry was parked at the time the 1strespondent purported to arrest the petitioner and held that althoughwittingly or unwittingly the petitioner pleaded guilty, it was not withinthe objective of the Forest Ordinance to forfeit the furniture and thelorry. He accordingly released the lorry and the furniture to theclaimants, being the petitioner and his father.
The 1st respondent has in his affidavit filed in this Courtreiterated the suggestion made to the petitioner at the inquiry in theMagistrate Court that he violated the condition of the permit bytransporting furniture at 10.00 p.m. The 1st respondent has also
Sarfun v Kamaldeen and two others
(Sarath N. Silva, C.J.)
denied the assault and challenged the medical certificate P5 on thebasis that it is belated.
I would now examine the two disputed questions of fact withregard to the time of arrest and assault on the petitioner.
As observed by the Magistrate a permit was not required for thetransport of the items of wooden furniture, considering its value asdisclosed in the receipts. The petitioner stated that he obtained apermit out of an abundance of caution probably having in mind theseveral check points that they would have to pass to reachKalmunai from Colombo. Considering his plight even with a permitone could imagine the degree of peril if he insisted on his right totransport the furniture without a permit. Since the petitioner hadtaken such precautionary action he would never have violated theconditions of the permit that prevented transport after 9.00 p.m. Asobserved by the Magistrate the petitioner has a valid permit for thenext day as well and could have continued the journey without anyproblem in compliance with the permit. Furthermore, the Magistratehas noted that it is commonly known that people refrain from nighttravel due to fear of confronting wild elephants on that stretch ofthe road. In these circumstances the petitioner had no alternativebut to stop the lorry on the side of the road and stay there till dawn.The 1st respondent's version that the lorry was travelling at10.00p.m. in the direction of the elephant infested area has to berejected. His notes of an arrest at 10.00p.m. have been concoctedto make out an offence where there was none. The petitionerbecame a victim of the fabrication since he refused to give the bribethat was demanded by the respondent.
The other matter is with regard to the assault.The petitioner hascandidly stated that the senior officer noted that no offence had beencommitted and that he could recommence the journey at 4.00a.m. Itappears that the 1st respondent was irked by the petitioner's refusalto pay the bribe and started attacking him at about 3.00 a.m. an hourbefore he was free to travel. The Medical Report P5 has been issuedby the Consultant Surgeon of the Ashroff Memorial Hospital inKalmunai. The petitioner has got himself admitted to the hospital onthe 22nd, after he was released from Courts. P5 records that thepetitioner had triangular imprint abrasions over left arm andback of chest and also notes that he complained of assault
Sri Lanka Law Reports
 2 Sri L.R
by police officers at Habarana with a wire, hand and weapons.These injuries could never have been self inflicted, considering theirlocation and the nature. Understandably the petitioner's first concernwould have been to get back to his residence at Kalmunai. The delayof 2 days per se is not significant considering the circumstances thathave been pleaded by the petitioner. The 1 st respondent has admittedthe arrest of the petitioner and was the officer in contact with thepetitioner whilst in custody. He is therefore responsible for the assaultresulting in injuries.
For the reasons stated above I would accept the version of thepetitioner in respect of both disputed questions of fact.
The petitioner has stated that the assault on him resulted in severebodiiy pain and injuries. The medical report supports this allegationwith regard to the injuries and undoubtedly an assault of this naturewould have resulted in severe bodily pain.The petitioner has allegedthat he was assaulted in the presence of his father's employees tohumiliate him since he refused to pay the bribe and insisted on hisinnocence. Further, he was pushed into the cell and kept there severalhours till he was taken to the Court house the next day. Theseallegations are proved by the circumstances relevant to the arrest, theinstitution of criminal proceedings admitted by the 1 st respondent andthe Medical Report P5. The petitioner was thus subjected to cruel,inhuman, degrading treatment or punishment.
In the case of W.M.K. de Silva v Chairman, Ceylon FertilizerCorporationW at 405, an observation has been made in an opinionstated by the Judge that to constitute torture the intentional inflictionof severe pain or suffering whether physical or mental should be forone of the purposes set out in the judgment. The link to a purposehas been derived with reference to the provisions of the UNDeclaration on Torture of 1975 and the Torture Convention (C.A.T.).On that line of reasoning the infliction of severe pain or sufferingwould amount to torture if it is for the purpose of obtaininginformation or a confession or as a punishment for an act that hasbeen committed or for some reason based on discrimination. Thequestion is whether to constitute torture in terms of Article 11 of ourConstitution the infliction of severe pain or suffering should belinked to such a purpose.
Sarjun v Kamatdeen and two others
(Sarath N. Silva. C.J.)
Article 11 reads as follows:
"No person shall be subjected to torture or to cruet; inhuman ordegrading treatment or punishment.
The plain meaning of the words does not warrant a qualificationbeing placed on the word "torture" by linking it to a purpose.
As noted by Dr. Wickremaratne in his work titled "FundamentalRights in Sri Lanka" – 2nd Ed. Pages 272 to 274, "the freedom fromtorture is declared in Article 11 as an absolute right and entrenchedby Article 83, which bars any inconsistent legislation without a two-third majority in Parliament and approved by the People at aReferendum and should be given its ordinary meaning asprohibiting any act by which severe pain or suffering whetherphysical or mental that is intentionally inflicted, without anyrequirement of proof of purpose. This guarantee safeguards humandignity which is a material element in the concept of law. "Theprinciple of human dignity is described as the point of convergenceof the contentual elements which sustain the structure of everyorder of positive law".
The assault on the petitioner may not be linked to any purposeas stated above. However, since it was an intentional infliction ofsevere pain or suffering I hold that the petitioner's fundamental rightto freedom from torture has been infringed.
The facts of the case reflect the hapless plight of an innocentcitizen who takes every precaution to comply with the law of the land.The concern of national security resulting from the threat of terrorismhas made it necessary to impose safeguards and check points on ourpublic roads. The case typifies the vicious link between abuse ofauthority .pursuit of graft and the infliction of torture on a citizen whoinsists on his right not to cave into illegal demands of gratification andabuse of authority. Whilst security concerns have to be addressedsuch action should be taken with the highest concern and respect forhuman dignity.
The presence of groups of armed police and security personnelwho place illegal obstructions is a common sight on our roads. Theseofficers as manifest in the facts of this case do not appreciate thatroads constitute public property and that every citizen is entitled to thefreedom of movement guaranteed by Article 14(1)(h) of our
Sri Lanka Law Reports
 2 Sri L.R
Constitution being the Supreme Law of the Republic. Any interruptionof the exercise of such freedom by police/security personnel wouldamount to an arrest and has to be justified on the basis of areasonable suspicion of having committed an offence. A tolerantsociety wedged between ruthless terrorism and the abuse of authorityhas lost the taste of freedom. It is only through a respect for humandignity and freedom guaranteed by the Constitution to all segments ofour society that peace and normalcy could be restored. Therefore aheavy responsibility lies on all Senior officials who detail armedpersonnel on our roads to take every precaution to ensure thatordinary officers such as the 1st respondent (being only a ReservePolice Constable) do not abuse their authority, violate the law or inflictsuffering on innocent citizens. Such personnel have to be firmlyinstructed that they have to act with the highest degree of caution andsensitivity with due respect for human dignity.
A person freely moving on the road in compliance with the lawcould be stopped and made to alight from the vehicle only on areasonable suspicion of illegal activity. Such suspicion would haveto be justified in Court. Superior Officers who do not takeprecautions to prevent any infringement by their subordinates whoare detailed for duty would themselves be liable for the infringementof the freedom of movement and the freedom from arbitrary arrestguaranteed by Article 14(1Xh) and 13 (1) of the Constitution.
For the reasons stated above, I allow the application and grant thedeclaration prayed for in prayer ”b" of the prayer of the petitioner thatthe petitioner's fundamental rights guaranteed by Article 11 of theConstitution has been infringed.
The 1st respondent is directed to pay a sum of Rs. 100,000/- ascompensation to the petitioner and the State will pay a sum ofRs.50.000A as costs.
The Registrar is directed to send copies of the judgment to theSecretary, Ministry of Defence and Inspector General of Police, fortheir information and necessary action.
DISSANAYAKE, J.-I agree.
SOMAWANSA, J.-I agree.
SARJUN v. KAMALDEEN AND TWO OTHERS