031-SLLR-SLLR-1989-V-2-WIJAYASIRIWARDENE-v.-KUMARA-INSPECTOR-OF-POLICE-AND-TWO-OTHERS.pdf
312
Sri Lanka Law Reports
(198912 Sri LR
WIJAYASIRIWARDENE
v.
KUMARA, INSPECTOR OF POLICE, KANDY AND TWO OTHERS
SUPREME COURTNO. 191 Of 1988FERNANDO, J.
DHEERARATNE, J. ANDRAMANATHAN, J.
SEPTEMBER 20, 1989.
Fundamental Rights – Cruel, inhuman and degrading treatment – Constitution, Article
11,
The petitioner, a 16 year student of St. Paul's College, Kandy had been served apamphlet directing him to get the students of his school on the streets throughout theweek oh pain of death. The petitioner attended the school the following day and foundno students in his classroom but the students of the school were congregating invarious places and demonstrating and shouting slogans within the precincts of the
sc
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school. He learnt the attendance Register was not being marked. So he left forathletics training but found no training was possible. He decided to return to school butfinding the main gate closed he scaled the wall and iron gate and got into the school.He was clad in his track suit and was not in his school uniform. He was a six-footerand joined the slogan shouting students. He could have been mistaken for an outsider.He was apprehended and taken to the Police Station. By way of admitted injuries hehad a slit lip and an injury on the cheek. He complained of Police assault, the 1strespondent's (Police) version was that the petitioner led about 500 students on to theroad, began stopping vehicles and pasting posters bn them, the petitioner fell on theroad while attempting to stop a vehicle; then got up and addressed the students',proposing that they go in procession along the road, this was greeted with applause.At this stage the 1st respondent arrested him informing him that he was, being arrestedfor incitement under the Emergency Regulation, there was no medical evidence evenof a private Doctor about the injuries.
Held –
the Police are not entitled to lay a finger bn a person being arrested even .if hebe a hardened criminal in the absence of attempts to resist or escape. Howeverin the circumstances of petitioner’s-attempt to go back to the sanctuary of theschool premises the use of some force was justified, but here the force used was
' excessive.
The use of excessive force does not per se amount to cruel, inhuman ordegrading treatment. That would depend on the person and the circumstances.The petitioner's objective in returning even reluctantly to the arena must- be takeninto account. The 1st respondent's conduct in striking the petitioner in any eventdoes not show any element of indifference or pleasure in causing pain andsuffering, or of intentional humiliation, or of brutal and unfeeling conduct.. It isoften easy after and emergency has passed to criticize the steps which havebeen taken to meet it,, but such criticism does not come well from those who havethemselves created the emergency.
To decide whether the force used was in violation of Article 11 is something likehaving to draw a line between night and day; there is a great duration of twilightwhen it is neither night nor day; but on the question now before the Court, thoughyou cannot draw the precise line, you can say on which side of the line the caseis. The present case is on the right side of any reasonable line that could be
. drawn. The excessive force used does not amount to cruel, inhuman or degradingtreatment.
Cases referred to:
Banco de Portugal v. Waterlow & Sons [1932] A.C. 452, 506
Hobbs v. London & S.W. Railway (1875) LR 10 QB 111, 121
' Mayor of Southport v. Morriss (1893) 1 QB 359, 361
APPLICATION for infringement of fundamental rights guaranteed under Article 11 ofthe Constitution.
Ranjith Abeysuriya, P.C. with Miss Gayomi de Silva for the petitioner
D.S. Wijesinghe, for the 1st respondent
A.R.N. Fernando S.S.C. for 2nd and 3rd respondens.
Cur. adv. vult.
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November 03, 1989
FERNANDO, J.
The Petitioner, a 16-year old student of St Paul's College, Kandy,had been selected to compete at the All Island National Sports Meetscheduled to be held in Colombo from 21st to 25th September 1988;and for this he had been in training for some time. On 13.9.88, cladin a yellow track suit, he came to the school premises at 8.30 a.m.intending to go to the Bogambara grounds for training. He noticedthere were no students in his classroom; students were congregatingin various places within the precincts of the school, demonstratingand shouting slogans; he learned that the Attendance Register wouldnot be marked that day. Having .informed the Master in charge ofAthletics that he was leaving for training, the Petitioner went to theKachcheri to meet the Athletics coach of the Education Department;it then transpired that no training was possible that day, whereuponthe Petitioner returned to the school around 10.45 a.m. The Petitionerfails to explain why he decided to return to school, although he wouldhave realised earlier that morning that no work would be done; andthis failure assumes greater significance in the light of the events ofthe previous evening, which are referred to in his statement to thePolice made later that day. According to the 1st Respondent, thethen Chief Inspector, Kandy Police, when he arrived at about 10.00a.m. the students were boycotting classes, hooting and shoutingslogans (of a more provocative nature than described by thePetitioner), and stopping vehicles and pasting subversive posters.
Returning to school, and finding the main gate closed, thePetitioner made an unorthodox entry into the premises, by jumpingover the wall and the iron fence: clad in his conspicuous yellow tracksuit; this performance was not likely to have been viewed, in theprevailing situation, as a legitimate display of athletic prowess by aschoolboy, particularly as he then joined the students who were stillshouting slogans. The Petitioner, a well-built six-footer, had no schoolbooks, and was (according to the 1st Respondent) the only personnot in school uniform. Undoubtedly, anyone would have concluded atthis stage that this was an outsider improperly entering the premisesin order to incite, or at least to join in, student demonstrations andprotests, At 11.30 a.m. the school bell rang indicating that the primaryschool sessions were over; the Petitioner was close to the main gatewithin the premises; he says that a Police Constable, who wasstanding outside the gate with the 1st Respondent, beckoned to him
SC Wijayasirlwardene v. Kumara, Inspector of Police, Kandy&two others (Fernando, J.) 315
to come up to the gate and to open it to let the little children out; thePetitioner opened the gate, partially, letting the children leave bycreeping under his outstretched arm. Suddenly, an unidentifiedperson, clad in shirt and trousers, crept under the Petitioner’s arm,entered the school premises, and pushed the Petitioner out of thepremises, The Petitioner turned towards the school premises,whereupon the 1st Respondent held, him by the waist, and hit him onthe cheek with a clenched fist. The unknown person twisted his righthand behind him, and hit him on the neck. He was thereafter bundledinto a police jeep. No reason was given for his arrest. [The 1stRespondent’s account differs considerably. He'says he observed acommotion inside the premises; the Petitioner was inciting thestudents; not only did they chorus the slogans shouted by thePetitioner, but when he commenced throwing stones at PoliceOfficers and vehicles on the road outside, they followed suit. The 1stRespondent says that he restrained himself up to then: then thePetitioner led about 500 students onto the road and started stoppingvehicles and pasting posters on them with the same slogans. ThePetitioner fell on the road whilst attempting to stop a vehicle, got upand addressed the students, proposing that they go in processionalong the road; this was endorsed by applause. At this stage, the 1stRespondent arrested him, informing him that he was being arrestedfor incitement under the Emergency Regulations. The 1stRespondent has produced copies of the relevant entries from theRoutine Information Book (made at “14.30 hours”), and from theDaily Information Book (made at “14.40 hours”), vyhich aresubstantially to the same effect. However, in the latter entry, whichare his detailed notes, the time of arrest has been given as “13.30hours”, this is clearly wrong (and should have read “11.30 hours”),because by 12.15 p.m. the Petitioner’s father had already learnt thatthe Petitioner had been .arrested and brought to the Police Station.]
Two persons have sworn affidavits in support of the Petitioner’sversion. One is a trader who observed some people gathered near StPaul’s at about 11.40 a.m., and came to see what was happening; hesays nothing about demonstrations and slogans, but he says thatafter the Police put the Petitioner into a vehicle he saw stones beingthrown by some students from within the school premises. The otheris the father of three students of the College, aged nine, seven andfive, who, on hearing of a commotion in the school, went to the gateat about 10.15 a.m., and found the gate closed and the school
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children, shouting slogans; he took no action to inquire about hischildren or to take them away. At 11.15 a.m. he returned, he saysnothing about demonstrations and slogans at this time; after thePetitioner was taken away the students became restive, and startedshouting; he does not say that stones were thrown. Later the schoolbell rang, whereupon the students left the premises, then he lookedfor his children.
The Petitioner was taken in the police jeep to the Police Stationprobably by about noon, for when his father arrived at the PoliceStation at about 12.30 p.m. the Petitioner had already been broughtthere. The Petitioner says that while in the jeep the 1st Respondentscolded him in foul language; five Police Officers assaulted himinside the jeep; on reaching the Station, a policeman dragged him outby the neck; inside the Station some other Police Officers hit him. untilhe fell down, and scolded him in foul language. On the 1stRespondent’s orders, he was put into a well in which there wereeight others. The 1st Respondent denies such assult and abuse.
At 12.30 p.m. the Petitioner’s father asked to see his son; he wasasked to come when the officer-in-charge was in; he then informedthe A.S.P. that he had come to make a complaint regarding thearrest of his son; he was asked to wait downstairs. At about 2.00' p.m. the Petitioner was taken to another room opposite the A.S.P.’soffice; his father came into that room, and asked the A.S.P. and the1st Respondent not to harass the Petitioner. Shortly thereafter hewas taken to another room, where he met his mother andgrandmother. By this time, his parents and grandmother hadobserved that his face was swollen and his lip was slit. There was anexchange of words between the. anxious mother and grandmother onthe one hand, and the 1st Respondent on .the other: the motherstroked the Petitioner’s face and said “You have thrashed my son,’’whereupon the 1st Respondent replied “Not thrashed, he should bekilled”; you won’t be allowed to live in peace: if you do anything tohim, you will be eaten alive." Clearly, in view of the death of a lawyerin Police custody, shortly before, they feared for his life. At 4.00 p.m.telegrams were sent to the President, the Leader of the Oppositionand to Mrs Sirimavo Bandaranaike, referring to the arrest of thePetitioner, expressing fears for his life" in the prevailing situation” (anobvious reference to the lawyer’s death), and requesting that his lifebe safeguarded. It was submitted that the failure to make anyreference to the Petitioner having been assaulted, although his
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condition had been observed by the parents, indicated that there hadin fact been no assault; this inference cannot be drawn, becauseobviously their predominant concern was to protect his life, redressfor wrongful arrest, assault or humiliation being relatively unimportantat that point of time while he was yet in custody. He was released onbail at 7.30 p.m., after his statement was recorded.
The Petitioner then narrated the story to his father, and suggestedgoing to the hospital; the father said that the A.S.P. did not record hiscomplaint, and that if they go to the hospital, the Police would get toknow and might kill the Petitioner as the situation there (in Kandy)was not good. Accordingly they went home. This does not ring true;it is difficult to believe that the father was afraid to make a complaint;indeed, at 12.30 p.m. that day he was intending to make a complaintregarding the arrest even before he saw his son and ascertained thecircumstances. According to the father's affidavit, the A.S.P. did notrefuse to record his complaint, but only asked him to wait; there wasno further attempt to make a complaint. He had some links with theSri Lanka Freedom Party, and had been attending to. some work inthe Party’s Kandy Head Office that morning; it is perhaps for thisreason that he complained to the Leader of the Opposition and theLeader of the S.L.F.P., in addition to complaining to the President. Inany event, the Petitioner could have been taken to a private doctor.There is no evidence, even from members of his family, of any otherinjury to the Petitioner, or of, any medical treatment. In thesecircumstances, the only inference that can be drawn is that theinjuries suffered by the Petitioner did** not warrant any. medical'treatment. We are denied the benefit of medical evidence as to themanner in which the. Petitioner sustained injury to his cheek and lip:whether as a result of a blow with the fist, or a fall on themacadamised highway?
In order to decide whether the Petitioner’s account of the eventsleading up to the arrest is true, it is necessary to consider hisstatement to the Police; it was admitted that he did make astatement, and neither in the petition nor by way of any“counter-affidavit was it sought to explain that statement or to suggestthat it had not been correctly recorded. At 7.15 p.m. on 12.9.88,when he was on his way home, two unknown persons had accostedhim, and made inquiries as to the school he was attending, his class,sports activities, and the like, and gave him a pemphlet; they told him
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to go to school at 6.00 a.m. the next morning, and to get the studentson to the street throughout the week, threatening to kill him if he didnot comply. He showed this pamphlet to his mother, who told him notto get involved. The next day he went to school at 8.30 a.m. andgave the pamphlet to the Principal. If it was not the Petitioner'sintention to join in the demonstrations, he could easily have refrainedfrom returning to school at 10.45 a.m.; he had three valid excuses, inthat he had been permitted to leave school for athletic training, heknew that classes Would not be held, and he had already handedover the pamphlet to the Principal, who would therefore understandwhy he was keeping away. It is thus likely that the Petitioner returnedto school because of the threats made the previous day, in order -perhaps reluctantly – to participate in the activities that took placebetween 10.45 a.m. and 11.30. a.m. There are two conflictingversions as to the situation at that time: according to the Police, avery serious disturbance of the peace, involving not merelysubversive slogans and demonstrations, but actual violence likely toresult in injury to person and damage to property. According to thePetitioner it was just a case of students shouting slogans, a matterwhich did not merit any mention by his two witnesses – whoseaffidavits do not seem worthy of much credit. The truth appears to besomewhere in between these two versions: it appears more probablethat there was more than a peaceful protest, and that there wassome violence in the form of stone-throwing, as well as an attempt togo in procession along the highway, which resulted in the 1stRespondent arresting the Petitioner, in the belief that he was an adultoutsider inciting students. However, the constitutionality of the arrestis not in issue, as the Petitioner was denied leave to proceed inrespect of that allegation.
It is the petitioner’s case that he was subjected to cruel, inhumanand degrading treatment in violation of Article 11. There is evidenceonly of the injury to the cheek and lip; if' the Petitioner had beenfurther assaulted as alleged by him, in the police jeep and thereafterat the Station, there would have been other injuries and contusions,but nothing of the kind is referred to in the affidavits of the Petitioneror his parents. Learned President’s Counsel for the Petitioner quiterightly submitted that the Police are not. entitled to lay a finger on aperson being arrested, even if he be a hardened criminal, in theabsence of attempts to resist, or to escape. In the difficult situationthat existed at 11.30 a.m. that day, I hold that the 1st Respondent
SC Wijayasiriwardene v. Kumara, Inspector of Police, Kandy & two others (Fernando, J.) 319
restrained the Petitioner, holding him by the waist, while arrestinghim; upon the Petitioner attempting to go back to the sanctuary of theschool premises, the 1st Respondent dealt him a blow on the face.While the use of some force was justified in the circumstances, thiswas a quite excessive use of force. The use of excessive force maywell found an action for damages in delict, but does not per seamount to cruel, inhuman or degrading treatment: that would dependon the persons and the circumstances. A degree of force whichwould be cruel in relation to a frail old lady would not necessarily becruel in relation to a tough young man; force which would bedegrading if used on a student inside a quiet orderly classroom,would not be so regarded if used in an atmosphere charged withtension and violence. I have also to take account of the objective withwhich the Petitioner returned to the arena at 10.45 a.m. to participate,•albeit reluctantly, in the activities, far removed from sport, which heknew to have been in progress. The 1st Respondent’s conduct', instriking a single blow, does not show any element of indifference orpleasure in causing pain and suffering, or of intentional humiliation, orof brutal and unfeeling conduct. ‘‘It is often easy after an emergencyhas passed to criticize the steps which have been taken to meet it,but such criticism does not come well from those who havethemselves created the emergency.” Banco de Portugal v. WaterlOw& Sons, (1). To decide whether the force used in this instance was inviolation of Article-11, “is something like having to draw a line-between night and day; there is a great duration of twilight when it isneither night nor day; but on the question now before the Court,though you cannot draw the precise line, you can say on which sideof the line the case is. “Hobbs, v London & S.W. Railway (2). Aseries of successive decisions may serve as landmarks which will,enable the boundary fo be demarcated in the future, but today I donot have to draw the precise line.” It is enough for uS to say that thepresent case is on the right side of any reasonable line that could bedrawn.” Mayor of Southport v Morriss, (3). I hold that the excessiveuse of. force in the circumstances of this case does not amount tocruel, inhuman or degrading treatment. The Petitioner’s application isdismissed without costs.
DHEERARATNE, J. – I agree.
RAMANATHAN, J. – I agree.
Application dismissedwithout costs.