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SUPREME COURTJeganathanVAttorney-General and Others
SC. Appeal No. 12182—Fundamental Rights
•I-’-'‘T .1 •'
Constitution*1 Articles- 126 and 127 (3). Supreme Court Rules 65. Admission ofOral evidence-. I Violation of Fundamental Rights. Torture cruel or inhumantreatment — Prevention of Terrorism (Temporary Provisions) Act No. 48of 1979. .;
P. was detained at Panagoda Army cantonment under an order of theMinister of(JD.efence under the Prevention of Terrorism (TemporaryProvisions) ’Act. The petitioner alleged torture and cruel and inhumantreatment.
The petitioner in order to prove the allegation sought to lead oral evidencebefore Supreme Court in terms of Rule 65 of Supreme Court.
Held !)■ Petitioner had failed to make application to the Court toobtain an affidavit from the witness in the same way as itwas done for obtaining the petitioner's affidavit. No permissionto jead oral evidence could be given in the absence ofadequate reason for'Hoihg''sO:’ •*''* -**r
t >S. ..
2) On the basis of the affidavit and the subsequent conductof petitioner.,: it was. difficult to accept as true the petitioner’sstory.
Jeganalhan v. Attorney-General (Weeraratne. J.l
complaining of violation of Fundamental Rights.
Before:Hon. Weeraratne J
Hoh. Victor Perera J., andHon.'Soiii J
Counsel:V.S. A. Pullenayagam with R. Srinivasan,
S.C. Chandrathasan, C. V. Vivekanandaand Miss Mangalam Kanapathipillaiinstructed by T. Pakianathan forpetitioner.
S.H. Silva. D.S.G. with Suri RatnapalaS.Constructed by T.G. Gooneratne. S. Afor the 1st to 3rd respondents.
K.N. Choksy, SAALwith D.H.N. Jayamahainstructed by Messrs.Silva and de Mcndisfor 4th and 5th respondents.
Arguedon:18th March. 1982.
Cur. tuiv. vult.
The motion of Counsel for petitioner to call oral evidence isrefused. Order in the main petition is reserved.
This is an application of the I Oth March 1982 under Article 126of the Constitution made by the Petitioner, one G. Jeganalhanpresently detained in the Army Prison in the Army Caiyonment atPanagoda, under an order made by the second respondent under thePrevention of Terrorism Act (Temporary Provisions) Act No. 48 of1979. The Petitioner in his application alleges that he was subjectedto torture and cruel inhuman and degrading treatment and punishments.He further states that for a proper adjudication of the matters inissue in these proceedings it is expedient inter alia that this Courthears and takes oral evidence of witnesses on oath in regard to thealleged acts. Affidavits and counter affidavits were filed on behalfof the petitioner and the respondents respectively. In this connection
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we heard the submissions of learned Counsel appearing for .thePetitioner and the five respondents.
Mr. Pullcnayagam, on behalf of the Petitioner, submitted that thisCourt has exclusive jurisdiction wide and unfettered to permit anapplication of this nature. He referred to Article 126 of the Constitutionwhich deals with the subject of ' Fundamental rights, jurisdiction, andits exercise" wherein it is stated:-
"The .Supreme Court shall have sole and exclusive jurisdictionto hear and determine any question relating to the infringement
or imminent infringement by executive or administrative
action of any fundamental right "
It was submitted by Counsel that this Court consequently hasoriginal jurisdiction to hear evidence and not merely receiving evidence,having regard to the ordinary meaning of the words “hear anddetermine”. Counsel further submitted that under Article 127(2) theSupreme Court has power in an appeal to call for and admit evidence.Mr Sarath Silva, Deputy Solicitor General, submitted that there wasno reference in the relevant papers as to who the witnesses are.Counsel for the Petitioner stated that the complaint is in regard tothe events of the 6th February. 1982 and that his witnesses arenumbers 1,3 and II referred to in the affidavit of Mr T. Pakianathan,Attorney-at-Law at (paragraph 16). The Deputy Solicitor General,continuing his submissions stated that he came ready to meet theMotion of the Petitioner which does not mention any names, andfurther that, in the statement filed there was no reference to witnesses,and that even in the Petitioner's affidavit dated 23rd February 1982,no names of witnesses were, given. In this connection the- DeputySolicitor General submitted that there were no names of any witnessesgiven by the petitioner to his Attorney-at-Law at the earliest opportunity.Further, the petitioner’s affidavit has not been filed, and there, wasonly a handwritten document (X4.). Thus we find that the Petitionerhas not disclosed matters such as the names of witnesses in the firstintimation to Court. It was submitted that in the ordinary courseevidence would not be allowed to be led in the manner sought tobe done by Counsel for the petitioner. The Deputy Solicitor Generalsubmitted that there was no reference to the giving of evidenceanywhere in. the relevant Articles of the Constitution and that therewas only a reference to affidavits. He conceded, however, that jn
SCJeganalhan v. Attorney-General- (Weerarutnc. J.)
very exceptional circumstances, as for instance in order to clarify anaffidavit, the Court could permit evidence to he "led. However, onthe facts of this case he submitted that the petitioner hits not madeout any special reasons for his application.
Mr. Clioksy in the course of his submissions stated that in regardto fundamental rights, evidence should be placed before Court bythe petitioner, but not oral evidence. Liven if the Court had thepower to receive oral testimony, the Court would not exercise thatpower unless the petitioner finds it impossible to place such materialbefore Court by way of affidavit. The date of the handwritten petition(X4) is 6th February 1982, i.e., the very day of the alleged torture.In paragraph 5 it is alleged that the petitioner was ordered bv anArmy Officer, whose name he is unaware of. to wash and clean thebathroom of the detainees. The petitioner did as he was told. Afew minutes later Corporal Gunasckerij, the 4th respondent, is saidto have escorted the petitioner and ordered him to wash and cleanout the Army Officers’ toilets, which the petitioner refused to do.Inconsequence, according to him,he was subjected to the alleged torturereferred to in paragraph 8. Learned Counsel's submission in regardto this episode is that not a single witness is referred to in thepetition as being present at the time of the alleged acts of torturecomplained against, nor is there any averment on this point.
In support of his objection to Mr Pullcnayagarn's application. MrChoksy referred us to Rule 65 of the Supreme Court Rules whichsets out the procedure applicable to Applications under Article 126.He referred in particular to Rule 65(l)(c) and Rule 65(5) which readas follows.
Rule 65(1):“Where any person applies to the Supreme Court by apetition in writing for relief or redress in respect ofinfringement or of an imminent infringement of anyFundamental Right by Executive or administrative Actionin terms of Article 126(2) of the Constitution he shall
(a) '■ .
;(c) support his petition by an affidavit and other documentarymaterial available to him: »
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(2)::In proceedings held in the exercise of its jurisdiction underArticle 126(1) of the Constitution, the Court may so conductits proceedings and the duration of oral submission so asto hear and finally dispose of the petition within the timeprescribed by Law.”
Counsel submitted that the Court was empowered by Rule 65(5)to regulate the proceedings in an application under Article 126. andthe Court would not ordinarily permit oral evidence to be led unlessthe petitioner could satisfy Court that there was good reason whythe evidence in question could not have been made available by thepetitioner to Court in the form of• affidavit. He submitted that thepetitioner 'must show that the evidence in question was beyond hispower to place before the Court by way of affidavit. As an example,he gave the instance of a petitioner being unable to procure anaffidavit because the witnesss in question was a public officer whowas not prepared to furnish an affidavit to the petitioner; or, whererelevant documents are in the possession of a third-party who wasnot prepared to make the same or copies thereof available to thepetitioner. Such was not the case here. He also submitted that thewords “material available to him (petitioner)” appearing in Rule65(1 )(c) supports his contention.
Learned Counsel for the petitioner submitted that affidavits of eyewitnesses to the alleged torture practised on the petitioner could notbe promptly placed before the Court because they encountereddifficulty in obtaining a Justice of the Peace who has power toperform the duties of his office in the Panagoda Camp area. Counselfor the respondents submitted that if there was any evidence to beplaced before the Court, then, upon an' appropriate motion filed inCourt their statements could have been placed before the Courtwhich could take congnizance of the matters referred to therein underthe Supreme Court Rules 65(5) so as to dispose of the matter. AnApplication was made to this Court to make a J.P available to attest
Jeganathan e. Attorney-Ceneral (Werruramr. J.l
the petitioner's affidavit dated 23rd February 1682,but the same wasnot done in respect of the witnesses now sought to be called, althoughthey are held in detention themselves at the Panagoda Cantonment.
It seems to me that when a witness is available to the petitioner,an application should have been made to this Court to obtain hisaffidavit in the same way as was .(.lone for the obtaining of the *petitioner’s affidavit. No such effort was made. It is tor this Courtto decide the question of hearing oral evidence, on being satisfiedthere is adequate reason for so doing.
On the material placed before us and having regard to thesubmissions made by learned Counsel and the reasons stated above,we refused the application made on behalf of the petitioner to leadthe oral evidence of witnesses.
Learned Counsel for the petitioner next addressed us on thesubstantive matters in issue as alleged in paragraph 5.6.7 and 8 ofthe petition dated 6th February 1681 (marked X4). He alleges thaton the above date at .6.30 a.m he was ordered bv an Armv Officer.
( i .’ '- •1*'*
of whose name he is unaware, to wash and clean the bathroom ofthe detainees, which he did qs ordered. He then . returned, to hisroom. A few minutes later Corporal Gunasekera (the 4th:respondent)ordered him to come out and escorted him to the toile,ts..used bythe Army Officers and directed him to jrlcan and wash them. CorporalRatnayake (the 5th respondent) also came .and. gave hint the sameorder. The petitioner states that he refused to comply, whereuponhe was subjected to the acts of torture, cruel inhuman and degradingtreatment and punishments referred to in paragraph K(a) to (y) ofX4. In regard to the alleged degrading treatment relating to thetoilets, paragraph 12 of the affidavit of the 4th respondent Gunasekerais relevant. He states therein that he has no authority to take thedetainees out of their cells except on the directions of his superiors.Further, the petitioner is permitted to be taken out of his cell onlyunder the guard of the Sergeant Major in charge, or the Sergeantin charge. The petitioner and other detainees are kept in one sectionof the Detention Barracks whilst ,the other section housed theAdministration Branch and Barracks. Hath sections are separated bya strong iron door. The Detention Branch is under a Commandantwho serves under the Commanding Officer, headquarters. One hasto go from the cells of the detainees through the iron door to getto the toilets of the staff. There arc permanent civilian employees
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engaged in keeping the said toilets clean. The 5th respondent Ratnayakei,n his. affidavit sfptes that the petitioner and other detainees arcallowed t.o go..out of their cells only in. exceptional circumstances ,and only with the permission of the Commandant according to thedirections of his superiors. Both the 4th and 5th respondents.completely. deny the allegations made against them by the petitioner. LieutenantDharmaratne, the .Commandant of the Detention Barracks, states inhis affidavit (3R2) that he. visits each cell, in the morning and speakswith each of the detainees, including the petitioner. He received nocomplaint from him or anyone else regarding acts of torture ordegrading treatnient, nor were the clothes of the petitioner torn,when he saw him on'the 6th morning. Sergeant. Perera, the DutySergeant attached to the staff, providing security to the DetentionBarracks, was'on'duty from 5 a.m on 5th February ‘82 to 9 a.m on6th February ‘82, In his affidavit (3R3) he avers that the petitionerwas not taken out of the buildings holding them, or past the irondoor.-the keys of which were in his personal custody. He did. notsee'any'acts'of torture or degrading treatment alleged to have beencommitted'by the 4th and 5th respondents. The Commander of theSri Lanka Army (the 3rd respondent) states in his affidavit that uponreceiving notice of the petitioner’s application to this Court, he causedinquiries to be made from the Officers in charge of the DetentionBarracks and that the facts that they have disclosed are set out inthe affidavits (3R1), (3R2), (3R3), (3R4) and (3R5). The Commanderspecifically states that if the acts alleged to have been committee! by,the 4th and 5th respondents are proved, they would be dealt withaccording to military law. Counsel for the’ petitioners point that nodetails have been given by the Army Commander in regard to thematters adverted to by him in' paragraph 6 of his affidavit wascountered by Mr Sarath Silva, Counsel for the respondents who.submitted that the affidavits 3R1 to 3R5 give the full picture of thepart played by the said Officers on that day of the alleged degradingtreiatment and torture. Learned Counsel for ihe petitioners stressedthat there is no affidavit from the persons Who cleaned all the toilets.This appears, to say the least, an unpractical suggestion in a complexlike the Army Cantonment at Panagoda. On the question whetherthere is any truth that the petitioner was taken out of the heavyiron door in the setting of the affidavits sworn to by the relevantOfficers in charge of the Detention Barracks, the 4th and 5threspondents affidavits are strongly supported by Sergeant Wcerasinghe’saffidavit (3R1). paragraphs 6 and 7, by paragraphs 5 of the Army
SCh‘#anathan Atlami’y-Ci'iwnit l UVcrurnim’. .1.)
Commander’s affidavit (3R2>, Duty Sergeant Perera's affidavit (3R3),paragraph 5.' The Court..is asked to dismiss these .aver-menrs in onesweep. Five lawyers pother than-' Attovncy-at-Taw.-Sivasitharnpararn)had access to the petitioner on the 6th of February – 1-In- thehandwritten petition (X^>- the petitioner sets 'out''the various acts ofphysical assault and torture inflicted oiv him described-'in paragraph8(a) to -(f).It is-alleged,inter alia.thai. the. two Corporals assaultedhim with fists and steel' handcuffs. They dashed -the'head of-thepetitioner and attempted to strangle him by squeezing his neck-'-Theyraised his arms and handcuffed them at a height which required himto stand on his toes, for about an hour. They threw. his-belongingsand scolded him in obscene language.
One of the lawyers named T. Pakianathan who met the petitioneron the 6th filed an affidavit dated <S(h February 1982. If the petitionerwas assaulted and tortured in the manner just described, would ,hcnot have shown signs of torture to the five lawyers, and particularlyto lawyer T. Pakianthan? The injuries should have been apparent ifthere was an assault with – steel manacles, etc. They would haveobserved the torn clothes which he was wcaring.which according tohim were the only clothes left. Any interested person who met thepetitioner on this day in this condition would surely have made anapplication to have him given medical -attention, if he actually sawthe petitioner's condition. The petitioner would not have hesitatedto show these lawyers the injuries, if he had any.
It is significant that a motion <X—) was filed by the petitioner inthe Court of Appeal initially on 11.12.81 in order to get the pctitib'ricrexamined by the judicial Medical Officer. Strangely this,applicationhas not been supported to this date, although it is recorded therein.
"I further move that this application be listed for ’support
on the 16th December I MSI."
One would surely expect a lawyer,” among the four others whosaw the petitioner, on the fitfT, February. 1982‘to.have, supported thismotion in the Court of Appeal with the material he .-had, evensometime in February 1982, if he had actually seen the injuries thepetitioner had on his person lis a result of the alleged acts of physicaltbrture. The absence of any such step, together with the. lack ol anystatement in the affidavit of Mr Pakianathan that he observed or
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was shown any injury by the petitioner when he met him on the6th February, and the lack of any affidavits to that effect from theother lawyers who accompanied Mr Pakianathan, militate stronglyagainst our being able to accept the petitioner’s complaint as beingtrue.The petitioner’s allegations against the 4th and 5th respondents,if proved, will carry with them serious consequences for theserespondents. Furthermore, the allegations are of a very serious nature.They must therefore be strictly proved. This degree of cogency isseriously lacking in these proceedings, which thus must fail.
The application of the Petitioner is for the above reasons refused.
VICTOR PERERA J. — I agree.
SOZA J — I agree.