037-SLLR-SLLR-2003-1-SANJEEWA-ATTORNEY-AT-LAW-ON-BEHALF-OF-GERALD-MERVIN-PERERA-v.-SURENDRA-OFFI.pdf
Sanjeewa, Attomey-at-Law (on behalf of G.M. Perera) v Suraweera,
QIC., Police Station. Wattala and others (Fernando. J)
SANJEEWA, ATTORNEY-AT-LAW (ON BEHALF OFGERALD MERVIN PERERA)v
SURAWEERA,
OFFICER – IN – CHARGE, POLICE STATION,WATTALA AND OTHERS
SUPREME COURTFERNANDO, J.EDUSSURIYA, J., ANDWIGNESWARAN, J.
SC No. 328/2002 (FR)27 FEBRUARY, 2003
Fundamental Rights – Wrongful arrest on vague information – Torture anddetention at the police station – Mistaken identity of the suspect – Articles 11,13(1) and 13(2) of the Constitution – Liability of superior officers of the policefor acts of subordinates – Right of the victim to recover incurred medicalexpenses in addition to normal compensation.
The petitioner was arrested at about 12.45 p.m. on 3.6.2002 on the order ofthe 1st respondent Officer-in-Charge, Police Station Wattala, by subordinatepolice officers. The arrest was effected admittedly on information that one“GERRAD” had committed a murder. The petitioner was taken to the WattalaPolice Station. The evidence, including medical evidence showed that he hadbeen hung up (whilst in police custody) with a rope and beaten with an iron rodand wooden poles. His hands were burnt with lighted matches. The medicalevidence supported the alleged burning.
On the advice of the Gampaha Ayurvedic Hospital for emergency treatment,the petitioner was admitted to Nawaloka Hospital where he received treatmentunder intensive care. After his discharge from the Nawaloka Hospital, the peti-tioner was admitted to the General Hospital, Colombo and discharged fromthere on 17.7.2002.
The petitioner had acute renal failure, loss of sensation over the 8th cervicaland 1st thoracic vertebrae, damage to the median and ulnar nerves, completeloss of power of both shoulder joint muscles and inability to grasp objects withfingers consistent with suspension from a beam and assault.
No statement of the petitioner was recorded. The 1st respondent told him thatthey had made a mistake. Thereafter, the petitioner was released at about11.30 a.m. on 4.6.2002.
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Held :
The arrest of the petitioner was not made on credible information, andthe reference to “GERRAD” was not sufficient to identify the petition-er. Police officers did not even subjectively believe that the petitionerhad committed an offence but were merely hoping that somethingwould turn up. His arrest was violative of Article 13(1) and the deten-tion was violative of Article 13(2) of the Constitution.
The petitioner was subjected to torture and to cruel and inhumantreatment by the 3rd, 6th and 7th respondents, with the knowledgeand acquiescence of the 1st respondent in violation of Article 11. The1st respondent became so liable as the Officer-in-Charge of thePolice Station and having control and supervision over his subordi-nates.
Per Fernando, J.
‘The duty imposed by Article 4(d) to respect, secure and advance fundamen-tal rightsextends to all organs of Government and the Head of the
Police (The Inspector General of Police) can claim no exemptionA pro-
longed failure to give effective directions designed to prevent violations ofArticle 11, and to ensure the proper investigation of those which neverthelesstake place followed by disciplinary or criminal proceedings, may well justify theinference of acquiescence and condonation if not also of approval and autho-rization."
The petitioner is entitled to compensation for infringement of his rightsand further, to reimbursement of medical expenses attributable to tor-ture.
APPLICATION for relief for infringement of fundamental rights.
D.S. Wijesinghe, P.C. for petitioner
Prince Perera with D.D.P. Dassanayake for 1st to 7th respondentsP.A.K. Ranasinghe, State Counsel for Attorney-General
Cur.adv.vult
Sanjeewa, Attomey-at-Law (on behalf of G.M. Perera) v Suraweera,
QIC., Police Station. Wattala and others (Fernando, J)
April 4, 2003.
FERNANDO, J.
The Petitioner is a cook employed by Colombo Dockyard Ltd.He complains that the 1st to 8th Respondents have infringed hisfundamental rights under Article 13(1) by. reason of his unlawfularrest on 3.6.2002, under Article 11 by torture thereafter whilst inPolice custody, and under Article 13(2) by unlawful detention till
The 1st to 7th Respondents are Police Officers of theWattala Police. The 1st Respondent is the Officer-in-Charge, the2nd Respondent is the Officer-in-Charge, Crimes, the 3rd to 5thRespondents are Sub-Inspectors, and the 6th and 7thRespondents are Constables. The 8th Respondent is theInspiector-General of Police.
The Petitioner’s Version
According to the affidavit of the Petitioner’s wife, at about11.45 a.m. on 3.6.2002, as she left home with her three-year oldson in order to fetch her daughter from pre-school, she saw aPolice jeep parked nearby. One Police Officer asked for her hus-band, and she replied that he had not returned from work. She thenheard one officer tell someone on his mobile telephone that theyhad not found the Petitioner but only his wife, and she also heardhim ask what he should do.
The Petitioner’s wife attempted to proceed to fetch her littledaughter but the officers restrained her, and forced her and her soninto the jeep. They then asked her to telephone the Petitioner at hisworkplace and to tell him to come home quickly as a child was ill,but she was unable to do so. She begged the officers to let her goto bring her daughter, but they refused and took her to the bus-stand to await the Petitioner’s arrival.
At about 12.45 p.m. the Petitioner got off the bus, and theofficers dragged him into the jeep saying “you are the man we arelooking for”, but gave no reason his arrest. On the way theydropped the wife and son by the roadside.
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The Petitioner’s wife and brother have sworn detailed affi-davits dated 19.6.2002. They stated that on 4.6.2002 at about10.00 a.m. the Petitioner’s wife, his brother and other friends andrelations went to the Wattala Police Station. The wife stated thatshe saw several of the officers who had come to arrest thePetitioner. She further stated that she saw the Petitioner in greatpain, with his body swollen, and unable to walk and to move hisarms, and that Police Officers told her that the Petitioner had beenarrested on wrong information – all this was corroborated by thePetitioner’s brother.
The Petitioner’s wife and brother also stated that thePetitioner had told them what had happened after arrest; that hehad been blindfolded, his hands had been tied, and he had beenhung from a beam; that he had been assaulted by the 1st to 7thRespondents and another officer, with iron rods and wooden polesfor about an hour, despite crying out in pain; that while being beat-en he was questioned regarding a murder, of which he knew noth-ing; that he had then been laid on the floor and his hands burnt withlighted matches; that no statement had been recorded from him;and that later that day he was taken to the 1st Respondent who hadtold him that they had made a mistake and that he would bereleased the next morning.
The Petitioner was admittedly released from Police custodyat about 11.30 a.m. on 4.6.2002.
In view of the Petitioner’s condition, his wife and bother tookhim to the Gampaha Wickremaarachchi Ayurvedic Hospital wherethe physician advised immediate emergency treatment at a leadinghospital. Accordingly, they admitted him to Nawaloka Hospital,Colombo, where he was in an intensive care unit for some time. On
the doctors informed the wife that his condition was crit-ical and that his life was in danger.
The Petitioner produced the Nawaloka Hospital bill up to
which showed a sum of Rs. 704,788/- (including a“deposit against professional charges" of Rs. 182,723/-) then due.He was discharged on 13.7.2002, and admitted immediately to
Sanjeewa, Attomey-at-Law (on behalf of G.M. Perera) v Suraweera,
QIC., Police Station. Wattala and others (Fernando, J)
the General Hospital Colombo, and discharged from there on17.7.02.
A petition dated 17.6.2002 was filed on 19.6.2002 by anattorney-at-law on behalf of the Petitioner, together with the affi-davits of that attorney-at-law and the Petitioner’s wife, both dated
Affidavits of the brother and some others were filedsoon after. The petition was supported, and leave to proceed wasgranted on 26.6.2002.
The Petitioner did not file an affidavit as soon as he was ableto, but did so, rather belatedly, only on 5.12.2002 after theRespondents’ affidavits had been filed on 11.10.2002. However, asthe Respondents did not have an opportunity of replying to that affi-davit, I will not act upon it, except insofar as it was in reply to newmaterial in the Respondents’ affidavits.
The Medical Evidence
The Judicial Medical Officer (“JMO”) of Colombo examinedthe Petitioner on 16.7.2002. In his report he set out the history oftorture, substantially as stated in the petition. From the investiga-tions done at the Nawaloka Hospital, he concluded that thePetitioner had “developed acute renal failure probably due to rhab-domyolysis which necessitated haemodialysis”, “changes due toaxonal loss in the median and ulnar nerves”, and “loss of sensationover 8th cervical and 1st thoracic vertebrae”. The relevant medicalrecords had been called for from the Nawaloka Hospital. Accordingto the JMO, systemic examination of the Petitioner revealed com-plete loss of power of the muscles around both shoulder joints, andinability to move both arms at the shoulder joints; while he couldmove his fingers he could not grasp any object at the time of exam-ination; and there was sensory loss around both elbow areas.
He noted certain injuries, consistent with the history given bythe Petitioner; two blackish scars on the back of the right hand,consistent with burns with lighted matchsticks; two scars, near theright and left wrists consistent with being hung with a coir rope; adiscolouration of the skin on the left shin, consistent with a blowwith an iron bar; and weakness of both upper limbs, consistent withbeing suspended. In his opinion, such suspension could have
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caused neuromuscular and tendon damage and weakness of theupper limbs; and muscular contusions could cause rhabdomyoly-sis, which could cause acute renal, failure, but there was no evi-dence of a considerable amount of contusions at the time of hisexamination. The Petitioner had completely recovered from renalfailure.
The 2nd, 4th, & 5th Respondents’ version
These Respondents have denied any involvement in thearrest and torture of the Petitioner. They produced extracts from theInformation Books (“IB’s) according to which they were away fromthe Wattala Police Station at all relevant times: when the Petitionerwas arrested when he was brought to the Station, and during thenext two or three hours when he was allegedly tortured. Whilethose IB extracts are not conclusive, yet the Petitioner’s identifica-tion of the 1st to 7th Respondents at the officers who tortured himis subject to the infirmity that he was blindfolded for much of thetime that he was tortured. Besides, in the condition in which hewas, he may well have mistakenly included persons whom he hadmerely seen at the Station only after the torture. In the circum-stances the Petitioner has not established their involvement on abalance of probability, although there certainly was grave suspi-cion, which warrants an internal probe. They are discharged fromthese proceedings.
The 1st, 3rd, 6th and 7th Respondent’s version
The 1st Respondent admitted that the Petitioner was arrest-ed on his directions. He did not claim that he was away from theStation when the Petitioner was brought in, or during the next fewhours when the Petitioner was allegedly tortured. As Officer-in-Charge he had overall responsibility to supervise and control theconduct of his subordinates, and it was he who had the power torelease the Petitioner. He is therefore liable if the Petitioner’s arrestand/or detention were unlawful, and for any torture that occurred atthe Station.
According to the IB extracts produced by the other threeRespondents, a Police party consisting of Sub-Inspector Suresh
Sanjeewa, Attomey-at-Law (on behalf of G.M. Perera) v Suraweera,
QIC.. Police Station. Wattala and others (Fernando. J)
(3rd Respondent), Sub-Inspector Herath, Constable Nalin (6thRespondent), Constable Perera (7th Respondent), ConstableAmila, and Home Guard Vineetha, left the station in a private vehi-cle at 12.30 a.m. on 3.6.2002 on the 1st Respondent’s directions oncrime prevention duties – not to investigate the murder which hadtaken place the previous day. They were armed with a revolver andtwo T-56 automatic weapons.
The affidavits filed by these Respondents were far from sat-isfactory. They denied or pleaded unawareness of every avermentin the petition – even the averments that the Petitioner had beenkept overnight at the Police Station and released on the 4th morn-ing, and that he had been arrested on wrong information. Each ofthem affirmed, in language absolutely identical even in regard toobvious errors and omissions, that –
“(1) I was reported for duty at about on 3.6.2002. A triablemurder has taken place at Wattala area on 02.6.2002. Thepolice team consisted of myself, Naleen Perera, Amila andVineetha were investigating this crime. While we were inves-tigating into this crime, we came to know from our informantthat the person named Gerrad was committed this triablemurder. According to this information I have taken steps toarrest this person named Gerrad with my subordinates.Accordingly, I and other police officers went to Gerrad’s resi-dence with the informant and questioned about Gerrad fromhis wife. At the time of questioning she informed us thatGerrad was not at home. At about 12.00 p.m. on 3.6.2002 Iwith my other officers arrested Mudalige Gerrad Perera, withinforming the reason for arrest (i.e. charge of committing a tri-able murder).
Thereafter I ordered M. Gerrad Perera to get into thejeep. As ordered he got into the jeep. While we were return-ing to the Wattala Police Station we stopped our jeep at theMabola Hotel in order to have a cup of tea. While the 6threspondent going to the Hotel by opening the back door ofthe jeep.”
I had to exercise minimum force in terms of section 23(2)of the Criminal Procedure Code of No. 15 of 1979. Thereafter
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he was put into the police jeep, by me and other police offi-cers and taken to the Wattala Police Station.
Theafter I questioned him about the commission of thistriable murder by Gerrad Perera. After questioning I orderedHerath the Sub Inspector to take a statement. Thereafter theperson named Gerrad made a statement to Wattala PoliceStation at about 2.15 a.m. on 4.6.2002.
I state that during the course of investigation and thestatement of Gerrad I found that there is no evidence againstGerred to charge him for this triable murder.
I state that thereafter I reported this to the Officer-in-Charge of the Wattala Police Station, at about 11.30 a.m. on
the 1st respondent released as Gerrad Perera on
4.6.2002.
I state that at all times material to this application I actedin utmost good faith in discharging my duties. After releasingGerred Perera, I filed a A report in the Magistrate’s Court ofWattala and reported this incident to the learned Magistratein terms of the provisions of the Criminal Procedure Code ofNo. 15 of 1979. (The relevant documents are marked as 3Rband annexed hereto).”
No “A” Report was in fact annexed.
The position of these three Respondents is that they arrest-ed the Petitioner; that all three did use “minimum force” on him, thenature and extent of which they failed to describe; and that theywere continuously present from the time the Petitioner was broughtto the Wattala Police Station until 2.15 a.m. the next day, when hisstatement was allegedly recorded. If, therefore, during that periodhe was tortured, these Respondents were present. Their identityand involvement are thus proved by their own admissions, inde-pendent of any assertion by the Petitioner or any one on his behalf.
The 1st, 3rd, 6th , and 7th Respondents also pleaded that thepetitioner had not given an adequate description in the petition of themode of assault and the nature of the injuries sustained, but added –
Sanjeewa, Attomey-at-Law (on behalf of G.M. Perera) v Suraweera,
QIC., Police Station. Wattala and others (Fernando, J)
very relevantly, as it turns out – that “the manner in which thePetitioner described this alleged assault if such a thing has takenplace the Petitioner could not have survived.”
Although an attempt had been made in the IB extracts toexplain away the injuries sustained by the Petitioner, by claimingthat he had attempted to escape (from a heavily armed Police partyof six!) none of the affidavits mention any such attempt. I cannotaccept the IB extracts as evidence of any attempt to escape.
Finally, there were other unexplained infirmities in their affi-davits. Although they claimed that the Petitioner’s statement wasrecorded at 2.15 a.m. on 4.6.2002, the relevant IB extract producedpurports to be a statement recorded at 10.30 p.m on 3.6.2002 -while the Petitioner denied making any statement at all. Their affi-davits all referred to the Police jeep in which they travelled while theIB extracts referred to an unidentified private vehicle.
Preliminary Objections
Learned Counsel for the 1 st – 7th Respondents took a seriesof preliminary objections.
He submitted, first, that the petition was not duly supportedby an affidavit because the attorney-at-law who filed an affidavithad no personal knowledge of any of the facts, and urged that theapplication should therefore be dismissed for non-compliance withSupreme Court Rule 44(3) and section 4(1 )(a) of the OathsOrdinance.
It was pointed out to him that the wife’s affidavit was quitesufficient as it was of her personal knowledge in regard to the arrestand detention, as well as the injuries resulting from the treatmentmeted out in custody. In any event, an affidavit based – on its face- on credible information given by the victim of an alleged funda-mental rights violation, in circumstances in which he is unable tomake an affidavit himself, may be accepted as sufficient for thegrant of leave to proceed.
Learned Counsel immediately moved on to a second objec-tion, that the petition had been filed (according to him) on 17.6.2002whereas the wife’s affidavit was dated 19.6.2002 – a discrepancy
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which, in his submission, created doubts as to its genuineness.Reference to the record confirmed that although the petition borethe typed date 17.6.2002 it had actually been filed only on
together with the wife’s affidavit.
Learned Counsel then shifted to a third objection, that theapplication could not be maintained because, previously, on
an informal application, under Supreme Court Rule44(7), had been made by a third party on the wife’s instructions.The fact that an informal application had been made was not a barto the exercise of the Petitioner’s constitutional right under Article126, particularly where no action had been taken on it.
Finally learned Counsel submitted that the 3rd Respondentnamed in the petition was “Suresh Gunaratne”, but that there was nosuch officer by that name serving at the Wattala Police Station; thattherefore a wrong person had been made a party respondent; andthat the application could not be maintained. The record shows thatin response to the notice issued on “Suresh Gunaratne”, Sub-Inspector Suraj Gunasena had filed an affidavit describing himself asthe 3rd Respondent. Indeed, the IB extracts produced by him refer to"Sub-Inspector Suresh”. It is clear, therefore, that those extracts andthe petition both referred to the same Suresh, and that no one wasmisled thereby. However, to avoid any further controversy about theidentity of the 3rd Respondent, I amend the caption by describingthe 3rd Respondent as “Suresh Gunaratne, alias Suraj Gunasena,(Sub-Inspector), Police Station, Wattala”. I must add that, in anyevent, the mis-description of one Respondent will not, generally,invalidate an application as against the other Respondents.
Arrest and Detention
The material on which the 1st, 3rd, 6th and 7th Respondentsarrested the Petitioner was a claim by an informant that a personnamed “Gerrad” had committed a murder. None of the affidavitsgave any particulars either about the informant and his reputationfor reliablity, or the nature of the information.
Even where there is a claim that an informant was usuallyreliable, a bald allegation that “Gerrad” had committed a murderwould not justify the arrest of any person believed to be that
Sanjeewa, Attorney-at-Law (on behalf of G.M. Perera) v.Suraweera,
QIC.. Police Station. Wattala and others (Fernando, J)
Gerrad: indeed, I doubt that it would even justify questioning eachand every Gerrad in the area. Further, had the Respondents beenacting bona fide when they arrested the Petitioner, they would havepromptly recorded his statement, and would then have either pro-duced him before a Magistrate or released him. The fact that theyfailed to record a statement (or if the IB extracts are accurate, wait-ed ten hours to do so) strongly suggests that they did not, evensubjectively, believe that he had committed an offence, but weremerely hoping that something would turn up. It is also probable thatthe Petitioner was not given a reason for arrest.
I therefore hold that the Petitioner’s arrest by the 3rd, 6th and7th Respondents, on the orders of the 1st Respondent, was in vio-lation of Article 13(1).
The Respondents were not entitled to keep the Petitioner inthe Station and to delay producing him before a Magistrate. He wasentitled to be so produced within a reasonable time, 24 hours beingthe upper limit for such production. Assuming that there was truly aneed to record his statement, that would not have justified a delayof more than an hour or two. By 3.00 pm. at the latest the Petitionershould have been either released or on his way to the nearestMagistrate. There is ample reason to insist on speedy production.Continued detention at Police Stations creates opportunities for ill-treatment as well as for false allegations of ill-treatment. Prolongingdetention until late evening almost automatically results in deten-tion overnight.
Besides, in this case it was manifest that the Petitioner wasin need of medical treatment – whether or not he was going to beproduced before a Magistrate the next morning, he should immedi-ately have been taken to hospital. If further detention was required,this at least was certainly one case in which detention in hospitalwas justified.
While it was the 1st Respondent, as Officer-in-Charge, whowas primarily responsible for the failure to release the Petitioner,according to the affidavits of the 3rd, 6th and 7th Respondents allof them unduly and unnecessarily prolonged the “questioning” ofthe Petitioner from 1.00 p.m. on the 3rd until 2.15 a.m. on the 4th;and it was only at 11.30 a.m. that they informed the 1st Respondent
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that there was no evidence against the Petitioner. I therefore holdthat the 1st, 3rd, 6th and 7th Respondents unlawfully detained thePetitioner in violation of Article 13(2).
Torture
The 3rd, 6th and 7th Respondents admitted that after theyarrested the Petitioner all three of them used force on him: so-called “minimum force”. The Petitioner’s wife and brother describedhis condition at 10.00 a.m. the next morning. The medical evidenceconfirmed how serious that condition was – acute renal failure, lossof sensation over the 8th cervical and 1st thoracic vertebrae, dam-age to the median and ulnar nerves, complete loss of power of bothshoulder joint muscles, and inability to grasp objects with the fin-gers, consistent with suspension from a beam and assault. Theirresistible inference is that while in Police custody the Petitionerhad been subjected to severe torture endangering life. There is nodoubt whatsoever that he had been tortured and how exactly hehad been tortured does not matter in the least. The failure torelease the Petitioner promptly, or at least to secure prompt med-ical attention for him, was cruel and inhuman.
I therefore hold that the Petitioner was subjected to tortureand to cruel and inhuman treatment by the 3rd, 6th and 7thRespondents, with the knowledge and acquiescence of the 1stRespondent, in violation of Article 11.
Liability of the 8th Respondent
It was averred in the petition that a complaint had been madeon or about 14.6.2002 to the Inspector-General of Police, the 8thRespondent. The 8th Respondent did not file an affidavit eitherdenying the receipt of such complaint or explaining what action hetook. The number of credible complaints of torture and cruel, inhu-man and degrading treatment whilst in Police custody shows nodecline. The duty imposed by Article 4(d) to respect, secure andadvance fundamental rights, including freedom from torture,extends to all organs of government, and the Head of the Policecan claim no exemption. At the least, he may make arrangements
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for surprise visits by specially appointed Police officers, and/or offi-cers and representatives of the Human Rights Commission, and/orlocal community leaders who would be authorised to interview andto report on the treatment and conditions of detention of personsin custody, A prolonged failure to give effective directions designedto prevent violations of Article 11, and to ensure the proper investi-gation of those which nevertheless take place followed by discipli-nary or criminal proceedings, may well justify the inference ofacquiescence and condonation (if not also of approval and autho-rization).
However, learned President’s Counsel appearing for thePetitioner did not pursue the question of the 8th Respondent’s lia-bility.
Order
I grant the Petitioner a declaration that his fundamental rightsunder Articles 11, 13(1) and 13(2) have been infringed by the 1st,3rd, 6th and 7th Respondents, and award him a sum of Rs 800,000as compensation and costs (excluding medical expenses), payableon or before 30.6.2003. Of that sum, the 1st Respondent will per-sonally pay Rs. 70,000, the 3rd Respondent Rs. 40,000, the 6thRespondent Rs. 20,000 and the 7th Respondent Rs. 20,000, andthe State will pay Rs. 650,000.
The Petitioner also claimed reimbursement of medicalexpenses incurred at Nawaloka Hospital. Learned Counsel for the1st, 3rd, 6th and 7th Respondents contended that the Nawalokacharges were exorbitant and that the Peitioner could have soughttreatment at a State hospital. The evidence is that the Petitioner’swife and brother did not rush to Nawaloka in the first instance, butwere content to go to the Wickramaarachchi Ayurvedic Hospital,and that it was in consequence of medical advice then received thatthey brought him to Nawaloka. However good the standard of treat-ment in State hospitals may be, there is no doubt that many SriLankans do opt for treatment in private hospitals – sometimes in thebelief that treatment and care is better, and sometimes because offears in regard to delays, over-crowding, strikes, shortages of
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equipment and drugs, etc. Citizens have the right to choosebetween State and private medical care, and in the cirumstancesthe Petitioner’s wife’s choice of the latter was not unreasonable -and was probably motivated by nothing other than the desire tosave his life. Article 12 of the International Covenant on EconomicSocial and Cultural Rights recognizes the right of everyone “to theenjoyment of the highest attainable standard of physical and men-tal health”.
I therefore further direct the State to pay to the Petitioner thesum already paid to Nawaloka Hospital by or on behalf of thePetitioner, as well as any further sum remaining due for the period
to 13.7.2002. The Petitioner will file a statment togetherwith bills and receipts within two weeks from today. If the amountclaimed by the Petitioner is disputed, the Registrar will refer thematter to this bench for further directions.
EDUSSURIYA, J.I agree.
WIGNESWARAN, J. _I agree.
Relief granted.