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ADHIKARY AND ANOTHERv
AMARASINGHE AND OTHERS
SUPREME COURTBANDARANAYAKE, J.
EDUSSURIYA, J., ANDYAPA, J.
SC APPLICATION No.251/2002
10TH SEPTEMBER AND 14th AND 28th OCTOBER 2002
Fundamental Rights – Acts of indignity and assault not causing injury -Whether such acts may constitute infringement of Article 11 of the Constitution.
The 1 st petitioner an attorney-at-law was proceeding in his car from Nawala tothe Bandaranaike International Conference Hall (BMICH) with his wife the 2ndpetitioner and his child and the mother to attend an exhibition. At Narahenpitathere was traffic block. When the vehicles started moving the 1st and 2ndrespondents came up to petitioner’s car and pulled the petitioner out andabused him and stopped him. When the 2nd petitioner intervened they abusedher also and slapped her. When the 1 st petitioner disclosed that he was anattorney-at-law the respondents continued to threaten and said they will shootand kill him. They claimed to be security officers of a Minister.
The respondents had infringed the petitioner’s rights under 11 of theConstitution.
Per Bandaranayake, J.
“the protection in terms of Article 11 would not be restricted to the
physical harm caused to a victim, but would certainly extend to a sit-uation where a person had suffered psychologically due to suchaction”
Per Edussuriya, J (with Yapa, J agreeing)
“it is my view that it would be a travesity if the State, which
includes the ordinary law abiding citizen was made to bear the fullbrunt of compensation for the errant acts of two policemen.”
The petitioners are entitled to compensation for the infringement oftheir rights a part of which shall be paid personally by the 1st and 2ndrespondents.
Adhikary and another vAmarasinghe and others
APPLICATION for relief for infringement of fundamental rights.Cases referred to:
W.M.K. de Silva v Chairman, Ceylon Fertilizer Corporation (1989) 2 Sri LR393
Kumarasena v SI Sriyantha and Others SC Application No. 257/93 SCM of23.05.1994
Saman v Leeladasa and another (1989) 1 Sri LR 44
APPLICATION for relief for infringement of fundamental rights.
Manohara de Silva with J. Fernando, D. Weeraratne and G.W.C.B.Thalagune for petitioners.
S. Ediriweera with Lakshman Fernando for 1 st and 2nd respondents.K.A.P. Ranasinghe, State Counsel for 5th respondent.
SHIRANI A. BANDARANAYAKE, J.
The 1 st petitioner, an attorney-at-law, with the 2nd petitioner,his wife, who is a teacher by profession, was travelling in his vehi-cle along with their 18 months old son, his mother, mother-in-lawand sister to the Bandaranaike Memorial International ConferenceHall (hereinafter referred to as the BMICH), to view an exhibitionthat was being held there. When he reached the Narahenpita junc-tion, on the evening of 09th April 2002, after driving through NawalaRoad, with the intention of turning towards Borella to proceed to theBMICH, there was the usual congestion due to the flow of heavytraffic. At the time of his arrival, it was a bleak scene at theNarahenpita inter-section, where the movement of traffic had virtu-ally come to a standstill with no police officer to control the move-ment of traffic.
A short while later, with the assistance of a few volunteers,the congestion began to clear, and the vehicle which was in front ofthe petitioners’ car started to move. Following suit, the 1st petition-er too, moved forward, when the 1st to 4th respondents appeared
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before the 1st petitioner’s vehicle preventing him from proceedingany further. Two of the respondents, punched the bonnet of thepetitioner’s car with their fists and told the 1st petitioner not tomove. At that point, the 1st pertitioner inquired from them as to whythey were prevented from proceeding. The 1st and the 2nd respon-dents started abusing and humiliating the 1st and 2nd petitionersand the family. Suddenly, the 2nd respondent opened the door ofthe driver’s side of the car; held the 1st petitioner by his collar;pulled him out of the vehicle to the road and slapped him. Seeingwhat was going on, the 2nd petitioner carrying the little child got outof the vehicle and came to the rescue of her husband. The 1strespondent stopped the 2nd petitioner moving towards her hus-band and slapped her while abusing her in filth.
The 1st petitioner at this stage informed the respondents thathe is an attorney-at-law by profession. No sooner this was told, the2nd respondent once again held the 1st petitioner by his collar andstarted shouting saying that, “we are the security personnel of aMinister. You can do anything you want. We will shoot and kill you.”The 2nd respondent once again assaulted the 1st petitioner. At thatstage the 1st petitioner’s mother came to his rescue and the 2ndrespondent while pushing her said that, “we are not scared. Youcan do anything you want, we are Minister …,’s security guards”.While all these things were happening, the 1st petitioner noticedthat the respondents were carrying walkie talkies and one of themhad a weapon. The respondents left the scene thereafter.
The petitioners immediately proceeded to the NarahenpitaPolice Station and lodged their complaints (P1 and P2). The fol-lowing day the 1st petitioner had brought this incident to the noticeof the President of the Bar Association of Sri Lanka (hereinafterreferred to as BASL). The BASLtook action by passing a resolutioncondemning the incident. Copies of the resolution were sent to thePrime Minister and the Ministers of Interior, Defence, Employmentand Labour (P5A, P5B, P5C, P5D). Later the Bar Association,informed the 1st petitioner that Mr.D.M.T.B. Kehelgamuwa, DIG,had informed that the services of 3 respondents had been termi-nated and steps were taken to interdict the other respondent (P8and P9).
Adhikary and another v Amarasinghe and others
Learned counsel for the petitioners submitted that in oraround 11.04.2001, the 3rd and 4th respondents, came to the peti-tioners’ residence and apologized for being involved in the afore-mentioned incident. The petitioner therefore did not seek to obtainany relief against the said 2 respondents.
The petitioners contended that the 1st and 2nd respondents’action was in violation of the petitioners’ fundamental rights forwhich this Court granted leave to proceed in terms of Article 11 ofthe Constitution. In view of the apology tendered by the 3rd and 4threspondents to the petitioners and the submissions made bylearned counsel for the petitioner that the petitioners did not wish toproceed against them, the 3rd and 4th respondents were dis-charged from the proceedings at the time leave to proceed wasgranted by this Court.
Learned counsel for the 1st and 2nd respondents took up theposition that the petitioners had not identified the respondents at thetime they made the complaints at the Narahenpita Police Station.Further, the 1 st and 2nd respondents in their statements made at thepolice station had denied taking part in the said incident.
The statements of the petitioners, of which parts are repro-duced by both learned counsel for petitioner and the 1st and 2ndrespondents, indicate that both the petitioners had referred to thepersons who assaulted them as security guards of a Minister. Theproceedings at the Magistrate’s Court indicated that the 3rd and 4threspondents had not taken any part in the assault and that theyhad attempted to settle the matter. However, there is no referencemade in the proceedings made to the effect of non-participation ofthe 1st and 2nd respondents in this incident. It is to be noted thatthe 1st to 4th respondents were arrested and their statements wererecorded by the Narahenpita police. Thereafter, while in theprocess of making arrangements to produce the respondentsbefore the Magistrate the respondents had run away. On
a warrant was issued for the arrest of the respondentsand this was re-issued on 24.04.2002 and on 08.05.2002. The 1stto 4th respondents surrendered by themselves and they wereremanded until 22.05.2002. In the circumstances, it is my view thatthere was participation by the 1 st and 2nd respondents in this inci-dent.
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The allegation against the 1st and 2nd respondents made bythe petitioners is based on the alleged infringement of Article 11 ofthe Constitution. Article 11 provides that ‘no person shall be sub-jected to torture or to cruel, inhuman or degrading treatment or pun-ishment’. Petitioners generally have sought a declaration of viola-tion of the fundamental right in terms of Article 11, in situationswhere there had been assault and/or infliction of injuries. In theinstant case, although the petitioners’ claimed that they wereassaulted, the basic allegation is not on the physical injuriescaused to them by such action. In fact there is no material beforethis Court regarding any kind of physical injuries and no submis-sions were made to the effect that the petitioners had sought anymedical assistance. However, the fundamental rights guaranteed interms of Article 11 are not restricted to mere physical injury. Thewords used in Article 11, viz., ‘torture, cruel, inhuman or degradingtreatment or punishment1* would take many forms of injuries whichcould be broadly categorized as physical and psychological andwould embrace countless situations that could be faced by the vic-tims. Accordingly, the protection in terms of Article 11 would not berestricted to mere physical harm caused to a victim, but would cer-tainly extend to a situation where a person had suffered psycho-logically due to such sction.
In W.M.K.de Silva v. Chairman, Ceylon Fertilizer Corporation,WAmerasinghe.J., said,
“I am of the opinion that the torture or cruel, inhuman ordegrading treatment or punishment contemplated in Article11 of our Constitution is not confined to the realm of physicalviolence. It would embrace the sphere of the soul or mind aswell”
It is however, to be noted that in W.M.K. de Silva vs. CeylonFertlizer Corporation (supra) the distress caused to an employee ofa corporation by her employer’s extreme unkindness was held tobe not violative of Article 11. On the other hand in Kumarasena vs.SI Sriyantha and others (2) where there was no physical impairmentor a disability, it was held that the ‘suffering occasioned was of anaggravated kind and attained the level of severity to be taken cog-nizance of as a violation of Article 11 of the Constitution’. Therefore,
Adhikary and another vAmarasinghe and others
the test which has been applied by our Courts is that whether theattack on the victim is physical or psychological, irrespective of thefact that, a violation of Article 11 would depend on the circum-stances of each case.
. Accordingly, it would be necessary to consider the circum-stances of this case and the nature of the acts complained of todecide whether there is a violation of Article 11 of the Constitution.
It is to be noted that the incident in question took place at theNarahenpita junction, a busy intersection and a place where thereis heavy vehicular traffic throughout the day and is at its heaviestduring the evenings. The ordeal faced by the two petitioners wasundoubtedly of an aggravated nature. The anguish faced at thattime by the wife who was torn between the safety of her husbandand the child, but still moved to prevent her husband being assault-ed, while carrying her 18 month old child and the feelings of a for-lorn husband who could not protect his wife and the little child fromthe abuse and assault by the 1st and 2nd respondents would in myview, suffice to prove the required level of severity that is necessaryto prove violation of Article 11 of the Constitution. The psychologi-cal trauma faced by an innocent child, while in the tender hands ofthe mother, for no rhyme or reason, would add to the severity of theactions of the 1st and 2nd respondents. In any event, the conductof the 1 st and 2nd respondents at that time and place would cer-tainly amount to degrading treatment of the petitioners.
Admittedly the 1st and 2nd respondents are State officers;they being police officers attached to the Ministerial SecurityDivision. Their position becomes aggravated as they are officerswho had acquired a special training to be attached to the SecurityDivision for Ministers. The fact remains that the 1st and 2ndrespondents, under the colour of their office, decided to dictateterms as to how a motorist should use the road and in the processattacked a young couple who were proceeding with the membersof their family, to see an exhibition at the BMICH. Their conduct inmy view amounts to a total lack of discipline, regard and respect tothe general public in the country. When police officers, who areguardians of the law and whose duties include ‘to prevent alloffences, preserve peace and to apprehend disorderly characters’,behave in an outrageous manner without paying heed to safe-
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guarding and protecting the rights of the people, a dismal picture ofsuch officers held in such high esteem emerges.
The 1st and 2nd respondents, as mentioned earlier wereattached to the Ministerial Security Division. Thus, they have beenclothed with authority by the State. If officers with such authority arenot trained to act with dignity and humility in respect of the rights ofthe people, it is my view that the State has an obligation to bearthe costs of such action. It is not in any sense to punish the State,but merely as a regret and a solatium for the hurt caused to thepetitioners by the actions of the 1 st and 2nd respondents. We have,however, to be mindful of the amounts to be awarded so that itwould not be burdensome on the common man in the street.Referring to such situations, Amerasinghe, J. in Saman vs.Leeladasa and another(3), stated that,
“I am unable to agree that deterrence is a relevant ele-
ment in the assessment of compensation in a FundamentalRights action. Being as they are actions against the State, anattempt by this Court to punish the State would, I think beimprudently venturesome. To attempt to deter it would behopelessly futile,… Large awards will only increase the bur-den of the tax-payer and that of the ordinary man in the streetto whom the burden of the tax-payer will, lamentably, bepassed on eventually. Therefore, we need to act withrestraint in awarding compensation in these matters”.
For the foregoing reasons I hold that the 1st and 2nd respon-dents had violated the Petitioners’ fundamental rights guaranteedunder Article 11 of the Constitution. I direct the State to pay to thepetitioners a sum of Rs.20,0007- as compensation and a sum ofRs.5,000/- as costs. These amounts must be paid within 3 (three)months from today.
Having read the judgment of Bandaranayake J, I agree withthe reasoning set out therein with regard to the complicity of the 1 stand 2nd Respondents.
The 1st and 2nd Respondents, merely because they were
Centre for Policy Alternatives (Guarantee) Ltd and another v Dayananda
Dissanayake, Comm, of Elections and others
Ministerial Security officers have conducted themselves in a man-ner that no right thinking person however high he may be wouldhave acted.
In the circumstances, it is my view that it would be a traves-ty if the State, which includes the ordinary law abiding citizen wasmade to bear the full brunt of compensation for the errant acts oftwo policemen.
I, therefore direct the 1st and 2nd Respondents each to per-sonally pay a sum of Rs. 5000/- as compensation to the Petitionerswhilst the State is directed to pay a sum of Rs. 15,000/- to thePetitioners as compensation and costs. All payments to be madewithin three months of today.
YAPA, J. – I agree.
ADHIKARARY AND ANOTHER v. AMARASINGHE AND OTHERS