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Hon Mr. Justice A.R.B. Amerasinghe
This paper focuses from a Sri Lankan perspective on the development of judicial remedies, in particular the practice of awarding compensation as redress for torture and violations of the right to personal liberty.
Fundamental rights in the Constitution
Sri Lanka's 1948 Independence Constitution did not contain provisions relating to fundamental rights. But the first Republican Constitution of 1972 recognized and declared "Fundamental Rights and Freedoms" in Chapter VI, and in particular Article 18 provided, inter alia, that:
"(a) no person shall be deprived of life, liberty or security of person except in accordance with the law;
(b) no citizen shall be arrested, held in custody, imprisoned or detained except in accordance with the law."
Only one case was filed under the provisions of the 1972 Constitution, Gunaratne V Pe6ple's
Bank,] in the District Court of Colombo in 1973. The Court granted the plaintiff's
application for a declaration. The Court of Appeal reversed the decision. In 1986 the
Supreme Court set aside the order of the Court of Appeal.
The second Republican Constitution, in 1978, declared and recognized a number of fundamental rights. The preamble, inter alia , assures to all persons fundamental human rights; Article 4(d) states that the fundamental rights declared and recognized in Chapter III shall be "respected, secured and advanced by all organs of Government".
Those fundamental rights of principal concern to the subject under consideration are set out in Articles 11 and 13:
"11. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
"13(1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.
13(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure
established by law."
The 1978 Constitution recognized the need for a more efficient way of obtaining redress than had been provided in the 1972 Constitution, but it did not provide a uniform procedure for addressing all violations of fundamental rights. Article 4 (d) requires that all organs of government should respect, secure and advance fundamental rights declared and recognized in Chapter III, but there is a special mechanism for redress and relief when transgressions are on the part of one of them, namely the executive.
The Constitution confers on the Supreme Court sole and exclusive jurisdiction over any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right declared and recognized by Chapter III.2 Thus, an act would not be an actionable wrong under Article 126 if it was a judicial or legislative act3 Persons who allege that their fundamental rights have been or are about to be violated by "executive or administrative action" can apply direct to the Supreme Court for the hearing and determination of the complaint4 Cases can also be referred by the Court of Appeal.5
The Supreme Court is required to hear and finally dispose of a fundamental rights petition within two months of its being filed.6 This provision has been regarded as directory rather than mandatory; nevertheless, the Court has endeavoured to deal with these matters as expeditiously as possible.7 This, together with a rapidly growing awareness of fundamental rights, prolonged unsettled conditions in the sphere of law and order necessitating the proclamation of Emergency Regulations in the interests of public security, and the fact that the Court has accommodated informal complaints, have resulted in the Court receiving increasing numbers of petitions.
International human rights instruments and Sri Lanka
On 10 December 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which entered into force on 26 June 1987. Sri Lanka acceded to the Convention in 1994. In terms of Article 2 (1) of the Convention, each State Party is required, inter alia, "to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction ". The Parliament of Sri Lanka enacted the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No 22 of 1994, which became law on 20 December 1994.
The Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 states, inter alia, that "Everyone has the right to life, liberty and the security of person" (Article 3); that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" (Article 5); and that "No one shall be subjected to arbitrary arrest, detention or exile" (Article 9)
The International Covenant on Civil and Political Rights (ICCPR), which entered into force on 23 March 1976, transformed the rights set out in the Universal Declaration, which had no legal force, into treaty provisions. The Covenant provides, inter alia, that:
"6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life ";8
and, in Article 9, that:
"(1) No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
(2) Anyone who is arrested shall be informed, at the time of arrest, of
the reasons for his arrest and shall be promptly informed of any charges
against him.
(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power...".
Under Article 2, States Parties undertake to take the necessary legislative or other steps to give effect to the rights recognized in the Covenant. Of particular relevance to this paper; concerned as it is with remedies and relief, are the following provisions of Article 2 (3):
"Each State Party to the present Covenant undertakes:
(a) to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) to ensure that the competent authorities shall enforce such remedies when granted."
Also relevant are the two following provisions of Article 9:
"(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."
Sri Lanka acceded to the Covenant on 11 June 1980. Its obligations as a member of the international community had received due recognition in the laws of the country under the Constitution of 1978. Indeed, the rights referred to in Article 13 (1) of the Constitution had been earlier safeguarded by the provisions of the Criminal Procedure Code.9
A fundamental right is a right sui generis
In Velmurugu Attorney-General 10 Wanasundera J said:
"We are here dealing with the liability of the State under public law, which is a new liability imposed directly on the State by the constitutional provisions. While the decisions relating to the vicarious liability of a master may be useful to the extent that all cases where a master can be held liable in tort would fall also within the liability of the State under the constitutional provisions, the converse need not be true unless we are to give a restricted interpretation to the constitutional provisions. The common law test of tortious liability therefore cannot provide a sufficient test and we have to look elsewhere for the appropriate principles."
Wanasundera J was of the view that there was no state liability in the circumstances of the
case, but stated as follows:
"This does not of course mean that an individual can be exposed and abandoned to the mercies of the army or police personnel and left without redress. A high standard of discipline is expected of the armed services and the police. Complaints made against such personnel must be promptly and fairly investigated. Disciplinary action should be taken where necessary and suitable compensation by way of ex gratia payment paid to innocent persons who may have suffered at their hands. "II
To digress for a moment, the reference to an "ex gratia" payment was, with great respect, unfortunate, for the payment is more than an act of generosity or an act of charity on the part of the state. Admittedly the payment of any sum under Article 126 (4) is due only if it is deemed that in the circumstances it is just and equitable to pay such a sum of money; but then it is a sum which the Court decides is leg4ly liable to be paid, and not doled out on account of compassion or like considerations, or what is agreed with counsel as being politic, as distinguished from what is just or right.
In the same case (Velmurugu), Sharvananda J (as he then was) said:
"It is to be noted that the claim for redress under Article 126 for what has been done by an executive officer of the State is a claim against the State for what has been done in the exercise of the executive power of the State. This is not vicarious liability; it is the liability of the State itself: it is not a liability in tort at all; it is a liability in the public law of the State - vide Maharaj v. Attorney-General of Trirndad."12
In Vivienne Goonewardene v Hector Perera13 Soza J said:
"The nature of the liability has been neatly explained by Lord Diplock in the Privy Council decision in Maharaj v. The Attorney-General of Trinidad and Tobago in the following words: 'This is not vicarious liability; it is liability of the State itself It is not a liability in tort at all; it is a liability in the public law of the State ... which has been newly created.'
Lord Hailsham of St. Marylebone in his minority dissenting judgment in this case did not agree with this formulation because he found it 'difficult to accommodate within the concepts of the law a type of liability for damages for the wrong of another when the wrongdoer himself is under no liability at all and the wrong itself is not a tort or delict'. His Lordship found it equally difficult to understand that this was 'some sort of primary liability'. But what Lord Diplock was emphasising was that this was a new liability in public law created by the Constitution of Trinidad and Tobago, not to be considered
from the angle of the existing bases of liability. In Sri Lanka too our Constitution has created a new liability in public law."
In Saman v Leetadasa,14 however; Fernando J said he was unable to accept the submission of counsel for the petitioner that the principles of liability applicable are 'those laid down in the decisions in Thadchanamoorthi,15 Velmurrrgu,16 and Goonewardene V Perera.17 His Lordship was of the view that liability for the infringement of fundamental rights was to be determined by reference to the same legal principles applicable in the case of ordinary delicts. But Amerasinghe J was of the view that fundamental rights were sui genesis, a view shared by Ranasinghe CJ, who stated: "I agree with the view taken by Amerasinghe ,J., founded as it is upon the opinions expressed hitherto by this Court on the basis of such liability".18
It is no doubt hoped that all persons, whether official or private, will respect fundamental rights. But although Fernando J said in Saman v Leeladasa19 that the rights of persons, in respect of transgressions, must be determined by the same principles of the common law, the Supreme Court has, with regard to violations of fundamental rights by executive or administrative action', been developing its own jurisprudence rather than resorting to the principles of the common law.
Relief or redress sought, and the wide powers of the Court
The prayer in a petition usually requests:
· leave to proceed;
· a declaration of the violation of one or more specified fundamental rights by reference to the relevant article or articles of the Constitution;
· compensation; and
· costs.
Other relief may also be prayed for; for example a direction quashing a decision made by a respondent (such as an invalid detention order), or requiring him to do something (such as producing a person detained by the police before a magistrate, or releasing him from custody); a direction that the petitioner shall be medically examined; a direction that certain reports or records (such as medical reports, hospital records, police records) be submitted for the scrutiny of the Court, and so on.
Article 126(4) of the 1978 Constitution states:
"The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition".
The Court has recognized that this confers on it very wide powers. Wanasundera J said: "We have no doubt whatever that our jurisdiction in this regard is most extensive".20
Article 126(4) does not, however; confer unfettered or unlimited powers on the Court. Although the phrase just and equitable", as it is used in Article 126(4), has not been subjected to scrutiny, it has received judicial consideration in a number of cases, particularly with regard to matters relating to the powers of tribunals concerned with the settlement of industrial disputes. For example, T.S. Fernando J in Richard Pieris & Co v Wijesiriwardena21 observed that justice and equity should "be measured not according to the urgings of a kind heart, but only within the framework of the law".
In my view, we need to reflect on what was the intention of the makers of the Constitution in bestowing the powers vested by Article 126(4), in the context of the extraordinary jurisdiction conferred on the Court to deal expeditiously with violations of fundamental rights by the executive. Respectfully; the Court, in my view, ought not to act as if it had unfettered powers. The powers of the Court are "most extensive", but not unlimited.
Declaration of violation
Once the Supreme Court decides that there has been a violation of a fundamental right, how does it answer the petitioner's prayer for a declaration? There is no reason why the Court should refuse to grant a declaration if an alleged violation has been established by the evidence. If the evidence discloses a violation, the Court would, in the exercise of its powers under Article 126(4), make a declaration to that effect, even where the transgression was not particularly reprehensible in the circumstances.22
A declaration does not automatically lead to the award of compensation; in some cases a declaration alone may be just satisfaction. In Weligodapola v Sainarasinghe,23 although the majority awarded compensation to the petitioner; Fernando J granted a declaration of violation and awarded costs, but no compensation.24 In Senaratne v Punya de Silva25 the petitioner; a dentist, member of parliament and trade union leader; had been unlawfully arrested and detained for a few hours during the course of a serious industrial dispute in which he was playing an active peace-making role, but which was misunderstood by the police to be of an opposite nature. Amerasinghe J said:
"The award of compensation or costs is not automatic but a matter for the Court's discretion. I am of the view that no useful purpose would be served by awarding compensation in this case. Since I am of the view that it is not an appropriate case for holding the First respondent personally liable, punitive considerations do not have to be met by the award of compensation. As far as the expression of the disapproval of the Court is concerned, this is implicit in the declaration I have made of the violation of the petitioner's Constitutional rights. Nor is an award of any sum of money necessary to rehabilitate the petitioner. The sum of Rs. 5,000,000 [claimed] no doubt conveys the fact that the petitioner deemed the transgression of his fundamental rights of personal liberty to be of a gross and outrageous nature, but it should not be taken as an indication of a solatium that would assuage his wounded feelings. My finding of the violations of Articles 13 (1) and 13 (2) of the Constitution constitutes just satisfaction in that regard. However; I do not perceive any circumstances to warrant a departure from the general practice of this Court of recognizing claims in respect of costs incurred by a successful applicant for relief or redress in matters of this nature. I order the State to pay the petitioner a sum of Rs. 15,000 as costs."26
In Navaratne v Chandrasena,27 where there was a violation of Article 12 on account of the failure to adhere to procedures in punishing students who had been guilty of gross misbehaviour; the Court stated that it would be "inequitable" to grant anything more than a bare declaration.28
Further just and equitable relief and/or directions
The next question is, if a declaration is made, is such a declaration just satisfaction, or is something more required as being just and equitable relief or redress? And, assuming that a particular violation of a fundamental right is caused by an "executive or administrative." act, whose liability is it to provide relief or redress? Obviously, a transgression cannot be committed by the state or by the "executive - it must be committed by one of its agencies or employees. However; liability for such a transgression falls on the state itself. In Sirisena v Perera29 Kulatunga J said:
"Even if the liability is not based on delict but liability sui genesis under public law, this Court has the power under Article 126 (4) read with Article 4 (d) to grant relief against the offending public officer and the State.... 'Executive or administrative action' would make the State primarily liable for such action viz. independently of the state officer concerned and as a matter of public law...".
Compensation and the vindication of fundamental rights
The Court, in the exercise of its powers under Article 126 (4), may award the payment of compensation to a petitioner as relief if it deems this to be just and equitable. However; where compensation has not been prayed for; or such a claim is abandoned during the proceedings, no compensation will be awarded.30
In Nallanayagam v Gunatilakes31 Colin Thome J awarded compensation to the petitioner for the failure of the executive to produce the petitioner before a magistrate in time, thereby violating Article 13(2) of the Constitution, which, he said, embodied "a salutary principle safeguarding the life and the liberty of the subject". It was, his Lordship said, a provision that could not be "overlooked or dismissed as of little consequence or as a minor matter". And in order to "vindicate this principle which is of such significance", the petitioner was ordered to be paid a sum of Rs 5,000 by the state as well as costs of the application.
I believe that similar considerations, namely the vindication of constitutional rights, may have motivated the Court in certain other cases and provided it with justification in requiring certain delinquent officials who had failed to observe their duties under Article 4(d) to personally contribute toward the compensation awarded to petitioners.32
The liability of "actual wrongdoers"
The Court has neither expressly nor "by implication "33 stated that "actual wrongdoers" are Immune . In Saman v Leeladasa Amerasinghe J said that, although he was conscious of the fact that in Ratnasara Thero v Udugampola,34 Kapugeekiyana v Hettiarachchi,35 and Rajaratne v Air Lanka36 awards were against the transgressors, yet he preferred to follow the decisions in Vivienne Goonewardene,37 Mariadas Raj38 Sudath Silva,39 arid Nallanayagam,40 "and make an order in this case with regard to the payment of compensation against the State ".41 In Mariadas Raj v Attorney-General Sharvananda J said:
"The protection afforded by Article 126 is against infringement of fundamental rights by the State, acting by some public authority endowed by it with the necessary coercive powers. The relief granted is principally against the State, although the delinquent official may also be directed to make amends and/or suffer punishment."42
Without getting entangled either in the question of vicarious liability or in the question of punishment for the sake of deterrence, it is possible to identify several reasons why "actual wrongdoers" may be legitimately made to contribute toward the compensation payable.
Joint and several liability
In Saman v Leeladasa43 it was unanimously declared that a prison officer's assault on a prisoner with kicks and blows, including a baton, amounted to cruel, inhuman and degrading treatment. It was also agreed that a sum of Rs 15,000 should be paid as compensation and a sum of Rs 1,500 as costs. The majority ordered that these sums should be paid by the state. Fernando J, however; held that both the prison officer who had carried out the assault and the state should be "jointly and severally" liable.
"joint and several" awards have been made in a few other cases.44 Such an award is understandable if the liability of the state is vicarious. However; if the eventual purpose of such a form of award is to deter "actual wrongdoers" -- and, from a reading of some of the cases relating to the fundamental rights of personal security and physical liberty, it seems this has been sometimes the intention it may not be fulfilled, for the Court's order as to compensation would be met if the state makes the payment. Of course if the state subsequently takes steps to recover all or part of the compensation from the delinquent, the delinquent would personally suffer, but that would seem to be more a departmental, disciplinary measure rather than an act of the Court in the exercise of its jurisdiction under Article 126(4).
The state and some of the respondents were held "jointly and severally" liable to pay compensation and costs for the illegal arrest and detention of the petitioner in Karunaratne v Rupasinghe.45 Fernando J said:
"Although this Court has held on some occasions that liability under Article 126 is solely that of the State, thereby rendering the actual wrongdoers immune, such restriction of liability is not warranted by the provisions of Article 126: Article 126(4) recognizes the wide powers of the Court to grant relief. There are several decisions of this Court in which the personal responsibility of wrongdoers has been recognized, and relief granted against respondents other than or in addition to the State. The result of granting relief only against the State is that ultimately it is the members of the public who have to pay when public officers infringe the rights of their fellow citizens .... This also tends to encourage rather than to deter the infringement of fundamental rights by public officers who may be tempted to accede to improper pressure from superiors or outsiders (or even deliberately flout instructions) in the belief that they would be immune from personal liability in applications of this nature. That approach will not induce public officers to exercise, perform and discharge their powers, duties and functions with due care and attention for the fundamental rights of citizens …".
Personal liability of respondents
Although compensation has sometimes been awarded against the person in some way instrumental in causing a violation, such awards are not made in every case. For instance, not every person making a false complaint leading to a violation would be personally liable for a wrongful arrest violative of Article 13 of the Constitution.46 Nor would every superior officer of, or officer responsible for; a police station, as such be vicariously liable for the acts of subordinate officers.47
No award or order will be made personally against persons who are not named as respondents.48 In Mariadas Raj49 Sharvananda J said:
"Since Sub-Inspector Godagama has not been a party to these proceedings, I do not make any order against him though strongly I disapprove his flouting the law and exercising his powers despotically."
I would respectfully submit that persons who are not parties, and have had no opportunity of defending themselves, ought not to be castigated. Moreover; there must be sufficient evidence implicating a respondent, showing participation in a way that would in law, make him personally responsible.50 A connection of some sort is not enough. For example, in Gunawardena and Wijeratne v Pathirana51 the third respondent, who was the Minister of Food and Co-operatives of a Provincial Council, was held not personally liable since his complaint to the police was action according to law", and there was "no evidence that he, in any way, instigated or procured the impugned seizure and arrest". The petitioner's claim against him therefore failed.
As far as private persons are concerned, they would be liable only if their conduct in the circumstances is regarded by the Court as an "executive" act. In Faiz v AttorneyGeneral52 police officers as well as certain members of parliament and a provincial councillor were ordered to pay compensation personally to the two petitioners who had been illegally arrested and assaulted. Fernando J said:
"The act of a private individual would be executive if such act is done with the authority of the Executive. Such authority transforms an otherwise purely private act into executive or administrative action: such authority may be expressed or implied from prior or concurrent acts manifesting approval, instigation, connivance, acquiescence, participation and the like (including inaction in circumstances when there is a duty to act) and from subsequent acts which manifest ratification or adoption.... In my view responsibility under
Article 126 would extend to all situations in which the nexus between the individual and executive makes it equitable to attribute such responsibility.
The Executive and the Executive officers from whom such authority flows would all be responsible for the infringement. Conversely, when infringement by an Executive officer; by executive or administrative action, is directly and effectively the consequence of the act of a private individual (whether by reason of instigation, connivance, participation or otherwise) such individual is also responsible for the executive or administrative action and the infringement caused thereby. In any event this Court would have power under Article 126(4) to make Orders and directions against such an individual to afford relief to the victim."
I would respectfully submit that it ought to be "equitable" to attribute personal responsibility only when the nexus between a private individual and the executive is established by evidence showing instigation, connivance or active participation.
There has been no difficulty in ascribing personal liability to an executive officer who personally carried out the torture or cruel, inhuman or degrading act. With regard to others, Kulatunga J in Wimalawardena v Nissanka53 said:
"Police officers who deliberately encourage, tolerate or acquiesce in torture or inhuman treatment are also responsible for such acts."
If a claim for personal liability is not pressed, the Court would not make an award against the respondents personally; the state alone would be required to pay the compensation.54 But in cases of torture or cruel, inhuman or degrading treatment, when the perpetrator of the misdeed has been identified, the Court has sometimes required the delinquent officer to personally pay some of the compensation.
However; personal liability becomes rare in cases of transgressions of the right to freedom from illegal arrest and detention, and rarer still in the case of other transgressions. The exceptional cases generally seem to be based on the desire of the Court to punish the officer or officers responsible. In cases of violations of other rights by executive and administrative action, such as violations of the right to equality (Article 12), however; state institutions such as public corporations have almost invariably been called upon to pay the whole of the compensation. This is understandable, for the bottom line of the balance sheet of such an institution ought to accurately reflect both its achievements and its failures, howsoever caused.
Unless there are exceptional circumstances, I do not think that, in cases other than those concerned with torture or cruel, inhuman or degrading treatment, personal liability should be imposed, for law enforcement might otherwise suffer adverse consequences. There ought to be a balance: law enforcement officers should not be impeded in the discharge of their duties, and they must act within the bounds of the law.55 In general, the liability to pay compensation and costs in cases of violations relating to the deprivation of personal liberty (Article 13) should be against the state and not against individual police officers, although there may be exceptions where the Court decides otherwise. On the other hand, in general, the liability to pay compensation and costs for torture or cruel, inhuman or degrading treatment should, at least partly, be against the delinquent officer directly responsible for an attack where he or she has been identified by the evidence.
Computation Where both state and respondent ordered to pay Compensation
In general, the practice of the Supreme Court, it seems, has been to determine whether; and if so, how much, compensation and costs should be awarded. Then if in the circumstances of a case, the Court is of the view that one or more of the respondents should be made to contribute toward the payment, it will determine the amounts to be paid by one or more of the respondents personally, having regard to culpability and responsibility,56 and require the state to pay the balance. In determining the amount payable by a delinquent by way of penalty, a Court would probably have regard to his or her means.57
Where the amount of compensation is large, the state's contribution would usually be much more than that of the delinquent. But if the amount of compensation is not very much, the amount awarded against the state may be more or less; the same as, or even somewhat less than, the amount payable by the delinquent officer. However; not all cases conform to this pattern.
Compensation exceptionally payable by delinquent alone
In very rare instances, the whole of the compensation has been ordered to be paid by the respondent who was found to have been directly liable for a transgression involving the rights of personal security or liberty. In such a case, Kulatunga J said in Jayathiram v Attorney-Genera458 the liability of the state is "purely conceptual".
In Jayasena v Ramanayake59 the petitioner had been assaulted, hung up, thrown into a water tank, chilli powder put into his eyes, and, when he asked for water; the first respondent urinated into his mouth. In addition to physical injuries, the petitioner suffered severe, stubborn, psychotic depression triggered off by the traumatic events, residual symptoms of which were evident over six months later. The first respondent, a police constable, who was directly responsible for the arrest, detention and assault, was ordered to pay Rs 60,000 as compensation and Rs 2,500 as costs. The second respondent, a police sergeant, was ordered to pay Rs 40,000 as compensation and Rs 2,500 as costs. The fourth respondent, the officer-in-charge of the police station, who was aware of the detention, was ordered to pay Rs 20,000 as compensation and Rs 2,500 as costs. The fifth respondent, a private person who instigated the arrest, was ordered to pay Rs 20,000 as compensation and Rs 2,500 as costs. The state was not required to pay anything.
In Piesis v Adikari6o the petitioner had been illegally arrested and assaulted with a hose pipe and trampled upon. The assault was carried out by the second and third respondents, with the active encouragement of the first and fourth respondents. The four respondents, who were all police officers, were ordered to pay Rs 50,000 as compensation. The state was ordered to pay Rs 5,000 as costs.
In Nihal v Police Sergeant Kotelawala61 both arms of the petitioner were fractured as a result of an assault. The five police officers responsible were each ordered to pay Rs 5,000 as compensation and Rs 500 as costs. No order was made against the state.
The state as the sole source of compensation
Where there has been a transgression, but no personal liability is wholly or partly held to be payable by a delinquent, for instance because the assailants who were recognizably police officers were, nevertheless, not personally identified,62 the state, being "primarily" liable for violations of fundamental rights,63 would be liable to pay the whole of the compensation.64
Compensation, punishment and deterrence
In Saman V Leeladasa65 Amerasinghe J said:
am unable to agree that deterrence is a relevant element in the assessment of compensation in a Fundamental Rights action. Being as they are actions against the State, an attempt by this Court to punish the State would, I think, be imprudently venturesome. To attempt to deter it would be hopelessly futile, for the State, in truth, I believe, has a long pocket, the depths of which we must know, if we are to make a meaningful, punitive award. It is extremely unlikely that we shall ever know the deepness of the treasury pocket and it is therefore hardly ever likely that we would be so placed as to make a proper assessment of punitive damages. It behoves us also to be mindful of the fact that large awards will only increase the burden of the tax-payer and that of the ordinary man in the street to whom the burden of the tax-payer will, lamentably, be passed on eventually. Therefore we need to act with restraint in awarding compensation in these matters."
Punishment, however; has come to be recognized as a factor in assessing compensation, which delinquent respondents have been personally ordered to pay. In one case, however; a judge, with respect, rightly, said he was not increasing compensation by the addition of a punitive element despite the fact that similar transgressions had been earlier deprecated.66 Punitive considerations, in my view, ought to have no place at least where compensation is payable solely by the state.
With regard to the burden on the state, no doubt a contribution from individuals might reduce this, but if it is the duty of the state to provide "just and equitable relief" to comprehensively deal with the question of compensation, the burden on the state ought not to be lightened by the consideration that such compensation comes from public funds, even if at first sight it does seem strange and unacceptable that the public must pay for the delinquent acts of its officers.
In Dissanayaka v Superintendent Mahara Prison67 Kulatunga J said:
"It would be ironical if the public themselves have to pay for the infringement of their rights on such a scale."68
However; Kulatunga J, quite correctly in my view, observed in Gamlath v Neuille Silva69 as follows:
"Such infractions make the State primarily liable. In awarding just and equitable relief we are mindful of the fact that the State has to pay compensation out of public funds, but this Court cannot on that ground resile from making an appropriate order. The State has to pay in view of the principle of State responsibility for executive and administrative action. If payment of compensation in default is a burden on public funds, it cannot be helped. In any event, compensation ordered is payable to the citizen whose rights are violated and constitutes a just levy on public funds in favour of the citizen."
In Gamlath, the petitioner had been illegally arrested and detained, hung up and assaulted with weapons, leaving the marks of 17 injuries. The state was ordered to pay Rs 1,000 for illegal arrest and Rs 14,000 for cruel, inhuman and degrading treatment. The first and second respondents who were held personally liable for the infringements were directed to each pay Rs 875 as costs, but with a warning that a recurrence of such conduct by police officers "may attract heavier sanctions against them including liability to pay compensation".
Clearly, in those cases in which a wrongdoer contributes toward the amount payable as compensation, they would in some (even small) way help to provide what Fernando J described in Faiz70 as "relief to the victim". However; a reading of the cases shows that, in general, the purpose of making "actual wrongdoers" liable seems to be to punish them and deter them and others from future transgressions.
In Ratnasara Thero v Udugampola7l the petitioner's fundamental right of freedom of speech and expression, including publication,72 was violated by the seizure of 20,000
"In my view this is a serious violation of the fundamental rights of a citizen of this country which calls for the award of substantial damages. A mere declaration without more in the form of some penalty ... will not deter such
future abuse of fundamental rights of citizens."73
The first respondent, a police officer; was directed to pay to the petitioner a sum of Rs 10,000 as compensation and costs fixed at Rs 2,100. It is a notorious fact that the government paid the compensation and also promoted the officer.
In a later case, Karunaratne v Rupasinghe,74 Fernando J said that the practice of ordering the state alone to pay compensation (which in the case of violations relating to personal security and physical liberty it seems was the invariable practice until the early 1990s) tended to "encourage' rather than to deter the infringement of fundamental rights by public officers". Kulatunga J in Sirisena v Perera made a similar observation, and stated that "Giving relief against individual officers in addition to the State in appropriate cases would also help to curb any tendency on the part of State officers to violate fundamental rights in the belief that the State alone is liable for such violation ".75
The Court has, in very strong terms, repeatedly condemned violations of the rights of personal security and physical liberty, and in computing the amount awarded as compensation it has sometimes, but not always, taken into account pronouncements of judicial abhorrence of violations as well as the intense disappointment of the Court at the continuation of violations despite numerous judicial condemnations. However; in Premalal de Silva v Rodrigo76 Kulatungaj observed that "neither the pronouncements of the Court nor the awards made appear to have deterred the police in resorting to the illegalities established in the instant case". And in Abasin Banda v Gunaratne77 Amerasinghe J said:
"judicial condemnation and the imposition of sanctions by way of requiring transgressors to personally contribute toward compensation assessed by the Court as being just and equitable in the hope that other persons may be deterred from violating Article 11 of the Constitution has meant very little. The Court's sense of frustration has been openly expressed .... I had in Saman v. Leeladasa raised doubts about the appropriateness and effectiveness of awarding compensation as a punitive measure..."
Similar; sometimes more strongly expressed, observations have been made in a number of other cases.
Re medial measures criminal and disciplinary proceedings, and requirements of international norms
Article 4 of the UN Convention against Torture provides that:
"(1) Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
(2) Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature."
Sri Lanka has given effect to Article 4. Section 2 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment Act No 22 of 1994 makes torture, or the attempt to commit, or the aiding and abetting in committing, or conspiring to commit torture, an offence. A person found guilty after trial by the High Court is punishable with imprisonment for a term not less than seven years and not exceeding ten years and a fine not less than Rs10,000 and not exceeding Rs 50,000.
Additionally, there are the provisions of the Penal Code under which persons may be punished for transgressions of physical security an4 personal liberty, for example, culpable homicide (Section 293), murder (Section 294), death by negligence (Section 298), attempt to murder (Section 300), attempt to commit culpable homicide (Section 301), hurt to extort confession (Section 322), wrongful restraint (Section 330), wrongful confinement (Sections 331, 334, 335), and criminal force and assault (Sections 340-9). Moreover; Section 82 of the Police Ordinance makes it an offence for a police officer to knowingly and wilfully exceed his powers or to offer any unwarrantable personal violence to any person in custody.
In Ireland v United Kingdom 78 the European Court of Human Rights held unanimously that it could not, as the Irish Government had requested, direct the United Kingdom to institute criminal or disciplinary proceedings against those who, according to the Court, had condoned and tolerated the breach of Article 3 of the European Convention. Similarly, the Supreme Court of Sri Lanka does not direct that a transgressor should be prosecuted:
that is a matter it leaves to the Attorney-General to decide.79 In terms of Rule 44(1) (b) of the Supreme Court Rules 1990, a petitioner seeking relief or redress for the infringement of a fundamental right is required to name the Attorney-General as one of the respondents. The Attorney-General is served with a copy of the petition and anexes,80 and has a right to be heard.81 As a matter of policy, the Attorney-General does not defend public officers who are alleged to have violated Article 11 of the Constitution. One reason for this is that he has to decide whether to, and if so, prosecute a delinquent respondent, or advise the police with regard to disciplinary matters, if called upon to do so.
Although the Court does not give directions with regard to criminal proceedings, it does sometimes cause its Registrar to simply forward a copy of the judgment to the Inspector-General of Police, for his information, or to enable him to consider disciplinary or other action, or with further instructions and directions. For instance, the Inspector-General has been required to keep a copy of the judgment for departmental or administrative purposes; or to place a copy of the judgment in the delinquent's personal file; or directed to inquire into the matter and report to Court within a prescribed time, after which the matter would be called before Court for the consideration of the report; or to report by a certain date on criminal or disciplinary action taken, the matter to be called before Court for consideration of the report; or to take disciplinary action, to inquire into who was responsible and report to Court to enable it to consider whether further orders or directions were necessary; or for appropriate action regarding which a report on the action taken is to be filed on or before a specified date. In some cases the judgment of the Court has been sent to the Inspector-General with a direction to ensure expeditious payment or payment before a certain date. In one case, the Inspector-General was directed to refrain from promoting the delinquent officers for a period of one year from the date of the judgment82 In Saman v Leeladasa83 the Court made no order as t6 disciplinary action since such action had been already taken.
In some instances the disciplinary inquiries ordered cannot be proceeded with since the complainant, it is said by the police, refuses to "co-operate". The last thing successful complainants may want to do is to risk exposing themselves or the members of their family, or others who may have testified on their behalf, to the police. Moreover; an inquiry by the police into the alleged misconduct of its own officers lacks public credibility. There is a need to have some independent body undertaking disciplinary matters, while assuring the safety of the complainant. Article 13 of the UN Convention against Torture requires that steps be taken to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of the complaint or any evidence given.
In Wimalawardena V Nissanka84 Kulatunga J observed that if such acts had been committed by a member of the public they would be prosecuted, and if by public officers, they would be dealt with by way of disciplinary action; "however; police officers appear to be immune His Lordship in Pelawattage v Officer-in-Charge Wadduwa85 attributed continuing violations to the failure of the authorities to impose effective sanctions, and in Nimal v Adikari86 he said:
"Unless the authorities take effective action to arrest the trend there is no hope for the aggrieved."
In Abasin Banda V Ganaratne,87 after referring to the apparent ineffectiveness of awarding compensation as a punitive measure,88 Amerasinghe J said:
"I am of the view that a comprehensive approach must be adopted if satisfactory results are to be achieved. Article 2.1 of the United Nations Convention on Torture, which entered into force for Sri Lanka with effect from 2 February 1994, requires the State to take 'effective legislative, administrative, judicial or other measures to prevent acts of torture ...'. Sri Lanka has enacted legislation (Act No.22 of 1994) making torture an offence. Sanctions, whether penal or disciplinary, will no doubt play their part; but a meaningful course of action to minimize violations of Article 11 should include other measures. The United Nations Convention stresses the need for education and certain procedural steps the State should adopt.
'Article 10
(1) Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
(2) Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.
Article 11
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
Article 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given ....
Amerasinghe J went on to note that, although the UN Convention is primarily concerned with torture,89 Article 16 provides that "the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment".
While endorsing those views, I should like to add something by way 6f amplification. The need for education and continuing education should be underlined, and perhaps the Secretary of the Ministry of Foreign Affairs might draw. the attention of the Secretaries concerned with law enforcement personnel (police and armed services), medical personnel (Judicial Medical Officers and District Medical Officer; Forensic Medical Experts) and persons involved in the custody of persons (for example, prison officials) to the international obligations under Article 10 of the Convention.
The Supreme Court has from time to time drawn the attention of the Inspector-General of Police to the matter of rules and instructions to be issued by him in line with Article 10 of the Convention. In Karunasekera v jayewardene9o the Inspector-General was directed to adopt measures to prevent the abuse of police officers in applying the Emergency Regulations and to report to the Court on or before a specific date as to steps taken to comply with the direction. In Wijeratne v Vijitha Perer91 the Inspector-General was directed, after consulting the Attorney-General, to issue precise and detailed instructions to all officers-in-charge of police stations as to their duties in terms of Article 4(d) of the Constitution to respect, secure and advance the exercise of the fundamental rights guaranteed by Articles 13(1) and 13(2), and Article 14(1) (a),(b) and (c), and thereafter to forward to the Registrar of the Court a copy of such instructions.
In Samanthilaka v Ernest Perera92 the Inspector-General of Police had, in his affidavit, informed the Court that he had given instructions to all the Police Stations concerning the manner in which a suspect taken into custody should be treated by Police officers, and if it transpires that these instructions have been violated, that disciplinary action will be taken against them, and also if there is evidence against any officer; steps will be taken to prosecute him in court".
The Court, having found that certain police officers had subjected the petitioner; a young girl, to "such severe physical and mental pain as amounted in law to cruel, inhuman and degrading treatment and punishment", declared Article 11 violated and ordered the state to pay her compensation and costs, and directed the Inspector-General of Police to give effect to the undertaking in his instructions within three months of the order. The police reported that they had sent the petitioner a cheque, but that they were unable to comply with the other directions of the Court, since they could not find the petitioner at the address given in the petition. Despite assurances by the police that efforts were being made to find the petitioner; the record of the case five years later showed that nothing further had been done, and it was not clear whether the cheque had been en cashed, or what the attorney-at-law for the petitioner; who had received a copy of the communication from the police, had done to follow up the matter.93
Compensation as a means of alleviating the pain of a constitutional breach, and as an expression of abhorrence
In cases where a petitioner has been subjected to torture or to cruel, inhuman or degrading treatment or punishment, physical and/or mental pain would be obvious enough and would, no doubt, be taken into account both in determining liability and quantum. Sometimes the mental pain ordinarily associated with a violation of Article 11 might be aggravated by other circumstances. Any additional distress caused may be taken into account in computing the amount payable. Thus in Palitha de Silva v Amarakone94 Article 11 was violated by a serious assault resulting in a fracture of the zygomatic arch necessitating surgery. In assessing compensation, the Court took into account the "great embarrassment and pain of mind quite apart from the physical pain and discomfort" as a result of one of the attacks being on a public road.
In cases of deprivation of personal liberty, in computing compensation, the Court has on more than one occasion referred to the emotional distress caused in the particular circumstances of a case, although the violation has not been one that fell within the prohibition against torture or cruel, inhuman and degrading treatment. Thus in Withanachchi and Leelaratne v Herath95 wrongfully detaining a sick man in a police cell was regarded as an "inhuman act" that entitled him to receive "substantial relief'. In Dharmatillake v Abeynaike96 the request by an elderly lady, a senior public servant, suffering from a heart ailment, for hospitalization had not even been mentioned to the magistrate before whom the petitioner was produced. This was found to constitute "inhuman" treatment In Kalyanie Perera v Siriwardena97 the Court not only took account of the duration of unlawful detention but also of the fact that the petitioner had suffered "rough treatment".
In most cases of breach of constitutional rights, the complaint is principally or solely non-pecuniary in nature, and compensation may be awarded as a sum of money paid to make up for the inconvenience of the deprivation of a right or for the loss of an opportunity of enjoying certain basic freedoms, to comfort and console the complainant, and to provide a solace for a petitioner's injured feelings. What Lisa Tortell98 describes as "the pain of a constitutional breach" would be a relevant fact, if not, in my view, the sole consideration in the circumstances of some cases, whether the infringement is of rights pertaining to personal security or physical liberty or of any other fundamental right.
The pain of a constitutional breach has been taken into account by the Court awarding the payment of a sum of money as a solatium for a constitutional breach.99 For example, in Weligodapola V Samarasinghe100 the majority awarded a sum of Rs 10,000 by way of a solatium payable by the state for a breach of the constitutional guarantee of equal protection before the law (Article 12). Even when there is some financial loss also involved, the non-pecuniary element of the constitutional breach deserves consideration. Thus where petitioners were wrongfully arrested and the right of freedom of speech was also violated by the confiscation of a book, Fernando J said that "the amount of .compensation must not be restricted to the proprietary loss or damage caused". Compensation, as his Lordship had said in Deshapriya v Municipal Council, Nuwara Ehya101 must be "measured by the yardstick of liberty, and not weighed in the scales of commerce".
In Saman v Leetadas102Amerasinghe J said:
"When, in an appropriate case, compensation is awarded for the violation of a Fundamental Right, it is, I think, by way of an acknowledgement of regret and a solatium for the hurt caused by the violation of a fundamental right and not as a punishment for duty disregarded or authority abused."
I am not for a moment suggesting that a constitutional breach, in every case, results necessarily in pain that must be compensated. Indeed, I have said above that the payment of a sum of money is not imperative upon the proof of a transgression of a fundamental right. Nevertheless "the pain of a constitutional breach" is, in my view, a matter for consideration in deciding whether; and if so how great, a sum of money should be ordered to be paid to a petitioner in an appropriate case.
I should also add that, although in Saman v Leeladasa I did say that compensation is an acknowledgment of regret as a solatium for the hurt caused by the violation and not a punishment for duty disregarded or authority abused, yet, as we have seen, punishment seems to have loomed large in the computation of compensation by the Court during the last decade. Judicial restraint inhibits me from further considering the matter; except that attention ought to be drawn to the often, expressly lamented, bad experience of the Court in its use of penalties to prevent or minimize violations of fundamental rights.
At the same time, I do not reject the practice of requiring delinquents, in appropriate cases, personally to contribute toward the compensation due to a petitioner; on the contrary, I consider it to be of great value, for it helps to assuage the hurt feelings of the petitioner and makes sense of a solatium awarded. If the "actual wrongdoer", such as the police officer who carried out the assault, is made personally to pay the petitioner; it would surely allay the petitioner's pain, pacify them and abate their sense of grievance more effectively than if the state alone was ordered to pay compensation:
"The fact that a transgressor is personally required to pay a part of the compensation assessed by the Court as being just and equitable is useful to the extent that it will to some extent assuage the wounded feelings of the victim."103
In Saman V Leeladasa104 Amerasinghe J said:
"Civil action [s] are concerned with reparation rather than punishment.... In a case such as this where the First Respondent was guilty of outrageous behaviour; it is not a punitive element that must enter into the enhancement of compensation payable, but the need to assuage the Petitioner's hurt feelings by a recognition of the enormity of the wrong complained of. What is sought to be done by increasing the amount of the award is to give the Petitioner the consolation of knowing that this Court acknowledges the seriousness of the harm done and that it has tried to establish some reasonable relation between the wrong done and the solatium applied."
Assessment of just and equitable relief
Cases of multiple violations
In many instances, a petitioner complains of the violations of several rights caused in the same transaction. For instance, a person may be illegally arrested, violating Article 13, and tortured or treated in a cruel, inhuman or degrading manner; violating Article 11; or a person may be unlawfully arrested, violating Article 13, and prevented from exercising their right of freedom of speech or association by keeping them away from a meeting they were due to attend and address, violating also Article 14(1) (a). Sometimes the Court indicates separate amounts for specified violations.105 More often, however; the Court awards a single sum for all the violations.taken together.
Cases of physical abuse - proof of harm
In cases of physical abuse, medical evidence is of great importance both in proving the allegation of torture or cruel, inhuman or degrading treatment and in assisting the Court to assess just and equitable compensation. In such cases the Court orders the production of hospital records and a medical examination of a petitioner; if so requested in the petition.
In some cases, the police produce a suspect in their custody before a government doctor; usually a District Medical Officer; and obtain a "medico-legal report" this is in a standard printed form requiring a brief account of "medical history", whether the person was under the influence of alcohol, and whether he had contusions, abrasions, grievous or non-grievous injuries.
In general, these reports are of limited value, not only because they are laconic and not very informative, but also because they are not always reliable. In Sudath Silva v Kodituwakkulo6 Atukorale J said:
"It seems to me to be preposterous for any medical officer before whom a suspect is produced for a medical examination in the custody of a police officer to expect him to tell the officer in the very presence of that police officer that he bears injuries caused to him as a result of a police assault This seems particularly so when the suspect is produced at the instance of the police themselves and not upon an order of court. I therefore reject the report of the [Medical Officer] as being worthless and unacceptable. The circumstances of this case disclose a gross lack of responsibility and dereliction of duty on the part of the [Medical Officer], Bandaragama."
The Court accepted the report of the Assistant Judicial Medical Officer; which disclosed that the petitioner had been, in the opinion of the Court, the victim of a "barbaric and savage" attack that was "most revolting to one's sense of human decency and dignity".
In Liyanage V Chandrananda107 the petitioner's teeth were broken and he suffered the permanent loss of an eye as a result of an assault by the police. The District Medical Officer; however; observed no injuries; and the Court had to rely upon the report of the Assistant Judicial Medical Officer. In Re Dr S. Abeykoo108 the Court was deprived of the benefit of medical evidence because the District Medical Officer, upon retirement from service, had taken the petitioner's hospital records with him, and later thwarted the efforts of the Court to obtain the record. He was punished for contempt of court
If and when "suspects" are produced before a magistrate, they may complain to the judge whose record may subsequently prove to be useful in a fundamental rights proceeding.109 A magistrate may order a judicial Medical Officer or a forensic medical expert to examine and report on the condition. But this can only happen if a magistrate actually sees,110 and has an opportunity of communicating with, the complainant111 One would also expect magistrates to be truthful and unbiased in their observations, which regrettably, may not be the case.112 Moreover; a person may choose not to complai113 or may even tell the magistrate that they were well treated by the police so as to escape further harassment114
Usually, the medical reports furnished to Court, by either a petitioner or a medical officer who has been directed by the Court to examine the petitioner, sufficiently indicate whether the petitioner's allegations are true. For instance, a person who complains of being hung up would probably have scars on their wrists; a person who complains of assault may have healed scars at the places where they claim to have been hit with some weapon, and so on. Yet, because the examination usually takes place long after the event, and for other reasons, the exact nature of an attack with all its horrific details may be difficult to ascertain. The nature of the pain and suffering inflicted can only be inferred from the affidavit of the petitioner or of eyewitnesses (which is rare), the available medical evidence and regard to the probability of the respondent's version. One must bear in mind the possibility that petitioners might have exaggerated their case or that they were untruthful. In Siriwardene v Officer-in-Charge Mingamail5 it was alleged that the petitioner lost an eye on account of an assault by prison officers. However; there was evidence that the petitioner; who was schizophrenic, had pulled out his eye in an attempt to commit suicide. In Thadchanamoorthi v Attorney~General116 Wanasundera J was not satisfied that the injuries complained of were inflicted by the police. He said:
"Mr. Pullenayagam submitted that the police can be credited with techniques of assault which leave no tell-tale marks. I do not think he intended to suggest that the police have so perfected the art of assaulting that even when they use force when making an arrest... one should not expect to find any marks of violence.
The absence of external injuries does not necessarily mean that a petitioner's allegations are false: the violation may be established by other evidence.117 The absence of medical evidence may sometimes lead to a rejection of a petitioner's allegation of a violation of the right of physical security.118 However; medical evidence is not a sine qua non.119 Thus in Ansalin Fernando v Sarath Perera120 Kulatunga J said:
"Whilst I shall not accept each and every allegation of assault/ill-treatment against the police unless it is supported by cogent evidence I do not consider it proper to reject such an allegation merely because the police deny it or because the aggrieved party cannot produce medical evidence of injuries. Whether any particular treatment is violative of Article 11 of the Constitution would depend on the facts of each case. The allegation can be established even in the absence of medically supported injuries."
The absence of "non grievous" injuries at the time of the medical examination was described in Abeywickrame vDayaratnei21 as a "fallacious approach".
The difficulties faced by litigants alleging physical abuse were referred to by the European Commission of Human Rights in the Creek Case in the following terms,122 which have been cited with approval by the Sri Lanka Supreme Court:
"There are certain inherent difficulties in the proof of allegations of torture or ill-treatment. First, a victim or witness able to corroborate his story might hesitate to describe or reveal all that has happened to him for fear of reprisals upon himself or his family. Secondly, acts of torture or ill-treatment by agents of the police or armed services would be carried out as far as possible without witnesses and perhaps without the knowledge of higher authority. Thirdly, where allegations of torture or ill-treatment are made, the authorities, whether the police or armed services or the Ministries concerned, must inevitably feel that they have a collective reputation to defend, a feeling which would be all the stronger in those authorities that had no knowledge of the activities of the agents against whom the allegations are made. In consequence there may be reluctance of higher authority to admit, or allow inquiries to be made into, facts which might show that the allegations are true. Lastly, physical traces of torture or ill-treatment may with lapse of time become unrecognisable, even by medical experts, particularly where the form of torture itself leaves little external marks."
In making its assessment of compensation, the painful emotion, terror; loathing and repugnance felt by the petitioner will no doubt be considered by the Court, but, regrettably, this largely depends on imagination and surmise rather than evidence. The Court has no evidence of residual disability (except, but largely conjecturally, in a few cases, such as the loss of an eye or permanent deafness or a fracture of a bone). No evidence is available with regard to the psychological harm and mental anguish caused by traumatic events, although, as was almost quite accidentally found in one case123 very severe and persistent injury may be caused.
The Court is conscious of the fact that for several reasons it is not in a position to make a comprehensive assessment of compensation. The Court endeavours to dispose of an application expeditiously, even though it may not be able to comply with the requirement in Article 126(5) of the Constitution that it shall hear and "finally dispose of' any petition relating to the infringement of fundamental rights "within two months" of the filing of such petition. A petitioner is required to file his application within one month of the alleged infringement, and so he may not be in a position to furnish the Court with the necessary information in time. Even if the Court grants him leave to proceed on the available material and permits him to file additional evidence later; would that really help in some cases, for sufficient time for stabilization must be allowed to enable an opinion to be fairly expressed by an expert in a particular field of medicine? It is difficult enough for a complainant to pay a lawyer; although the Bar Association and other non-governmental organizations have proved to be of commendable assistance in some matters; who will pay for the medical examinations? The Court is left to make its own assessment on the basis of cryptic medical reports, usually describing only tell-tale marks, such as scars, but not indicating whether the injuries are disabling, and if so whether they are temporary or permanent, and, in either case, what extent of disability has been caused. Evidence on relevant matters such as the income of the petitioner, past and future loss of income, past and future medical and other expenses resulting from the injury, the effect on the enjoyment of amenities, shortening of life expectation, post-traumatic neurosis and other relevant matters are not placed before the Court. Moreover, the available evidence is not tested by cross-examination as the Court usually decides a matter on affidavit evidence.
In Abeygunawardene v PC Dahanayake,124 where the petitioner had been assaulted with batons
and suffered the fracture of two ribs and the iliac spine, the Court awarded him Rs 50,000 as compensation and Rs 10,000 as costs. Fernando J said:
"We have no medical or other evidence showing whether; in consequence of his injuries, the petitioner suffered (or would suffer) some disability, incapacity or disfigurement, which is likely to cause him pain or discomfort or in any way to affect his work, his caring capacity, his leisure or his enjoyment of life in general. It is, of course, open to the petitioner to institute a civil action for damages, but that would entail further expense and delay. I think this Court has jurisdiction under Article 126(4) first to determine whether a petitioner should be granted a declaration that his fundamental rights have been violated and thereafter to give directions (if requested by the petitioner) necessary for the assessment of compensation. However; it is preferable that Rules should be made under Article 136(1) prescribing the procedure to be followed in regard to such directions and inquiry to be held thereafter."
Perhaps it might be possible for the Court to go into a matter more fully with a view to providing a petitioner with comprehensive compensation. However; we should proceed cautiously, making haste slowly, festina lente as Suetoniu125 said, or; what is much the same thing, proceed "hemin, hemin" - slowly, slowly, as Sri Lankan judges seem, in my respectful view appropriately, to discharge their duties in the interpretation and application of constitutional provisions. In the meantime, attention should in my view continue to be focused on providing just and equitable relief, inter alia for the pain of the constitutional breach, leaving it to a petitioner to claim compensation for delict in an appropriate Court. As Soza J in Vivienne Goonewardenel26 reminded us, the "old forms of procedure and the old remedies still co-exist" with the new remedy created by the Constitution.
Other factors in assessing compensation
In estimating compensation, the Court takes account of a variety of matters: from the point of view of the petitioner; in the case of physical abuse, the gravity of the injuries, the fear; terror; shock, physical suffering and the humiliation and degradation and mental distress are no doubt considered. In the case of unlawful arrest and detention, the duration of the detention will be one factor. However; other factors too would be relevant in computing compensation, such as the fact that even during a short period of detention the petitioner was tortured or treated in a cruel, inhuman or degrading manner or not given medical treatment though ordered by a magistrate, or otherwise ill-treated, or that as a result of the detention the petitioner's professional or business activity or employment were adversely affected, or that his wedding had to be postponed, or that the scholastic work of the petitioner; who was a student, was disrupted, or that the arrest was at the time of a parliamentary by-election, and was "likely to undermine public confidence in the democratic process, so vital to the advancement of fundamental rights enshrined in the
Constitution",127 or that the illegal arrest (Article 13) was combined with the violation of the petitioner's right of freedom of speech (Article 14(1) (a)).
The Court has considered the mala fides or bona fides of the delinquent officer; and the fact that the petitioner's behaviour and remarks were provocative, although such behaviour does not justify an assault. The Court has repeatedly stated that even criminals or suspected criminals must be treated in a humane manner and that their fundamental rights must be protected.128 In making such assessments, liability and quantum have been clearly distinguished.
Quantum is essentially a matter of impression
In assessing damages the Court takes a variety of matters into account both from the petitioner's point of view, such as his or her pain and suffering, and from the Court's point of view, such as the expression of abhorrence. This means that a verdict with regard to the amount "is a product of inextricable considerations and therefore in expressing it, a separate assessment of the various elements ought not to be made or disclosed".129
In Sri Lanka, compensation for the violation of fundamental rights has been open-handed and wide and subject to no limitations or restrictions, except that awards should be just and equitable. Lord Hailsham observed in Cassell & Co v Broom130 that "the whole process of assessing damages where they are 'at large' is essentially a matter of impression and not addition". Lord Evershed MR once observed that:
"The subject-matter of estimation is very much what might be called a series of imponderables; and that, of course, makes anything in the way of an assertion about what is the right figure a precarious matter.131
In a few cases the Court has compared the awards made in earlier decisions.132 But the facts of two cases are not likely to be so similar that some kind of formula, such as a fixed amount for each day of detention, should be applied. Moreover; changes in the value of money tend to make comparisons with earlier cases rather meaningless.
Mode of payment
In general, the Court makes order that compensation and costs should be paid to the petitioner. In the case of a minor; the Court may make an order that ensures that the compensation will not be squandered, but used for the benefit of the petitioner. In Kalupahana (AAL) for Kuman133 the petitioner was a fourteen-year-old girl who had been hung up on a tree, beaten with a hose pipe and trampled on. Her sight was impaired and her education had been adversely affected. The state was ordered to pay Rs 150,000 into a fixed deposit at the National Savings Bank, and the monthly interest was to be paid to the petitioner's mother for the use of the petitioner. The petitioner was declared entitled to deal with the deposit only upon attaining the age of majority.
The transmission of an injured party's rights to their heirs may, perhaps, depend on the ordinary rules applicable in the case of an action for damages based on delict. When compensation has been awarded, but the petitioner dies before receiving payment, the Court may, upon application, direct that the compensation should be paid to the heirs134 In Premalal de Silva v Rodrigo135 the petitioner "disappeared" after the institution of the petition. The Court directed that in the event of it being established that the petitioner was dead, the compensation and costs awarded were to be paid to the petitioner's legal representatives.
Settlements and withdrawals
Settlements and withdrawals are not uncommon and the Court in some instances dismisses the application pro forma.'36 Sometimes counsel for the respondents, without contest, agrees that compensation should be paid and the Court decides on the sum it considers just and eqmtable137 or the Court awards the sum agreed to by the parties,138 or a sum agreed as "costs" by way of settlement.139
In Mahalingam v Premadas140 the petitioner had complained of unlawful arrest and detention. After judgment was reserved, the petitioner and the first respondent, the officer-in-charge of the police station, filed a motion. The first respondent admitted that the arrest, search and detention showed an absence of respect for the petitioner's fundamental rights, and he apologized for his conduct and agreed to make amends by the payment of Rs 20,000 to the National Defence Fund of Sri Lanka. The Court said: "We consider this settlement to be reasonable", and made order accordingly.
However, the Court has held that withdrawal is a matter within the Court's discretion. In Herath Banda v Sub-Inspector of Police, Wasgiyawatte Police Station 141 the petitioner had been granted leave to proceed with his application in which he alleged he had been rendered unconscious and had been hospitalized following an assault by a police officer. When the matter came up for hearing, his counsel moved to withdraw the petition on the ground that the petitioner had "settled his differences with the police officer". The Court fixed the matter for hearing the submissions of the Attorney-General. The Deputy Solicitor-General, citing the decision of the Supreme Court of India in Basheshar Nath v Commissioner of Income Tax142 submitted that the violation of a fundamental right, especially the right guaranteed by Article 11, was not a private matter that could be settled or withdrawn. He also referred to the fact that the Supreme Court of Sri Lanka had in Velmurugu143 held that Article 11 had "special features". It was held that no useful purpose would be served by attempting to arrange fundamental rights on a hierarchical scale and determine the question of withdrawal by reference to importance. It was observed that although withdrawal had been permitted in hundreds of cases, each case depended on its own circumstances and leave to withdraw was a matter "within the absolute discretion of the Court". In the matter before it, there was ample medical evidence to support the allegation of the brutal assault alleged in the petition. The Court declared Article 11 was violated, but no compensation was awarded since the "differences" had been settled. A recognition, perhaps, that there was no pain of a constitutional breach that should engage the attention of the Court. Nevertheless, the Inspector-General of Police was directed to investigate the matter.
Orders other than a declaration of violation and compensation
If the petitioner is under illegal detention, the Court may order his or her release144 or it may leave the question of release to be decided by a Court before which the petitioner is being tried for a criminal offence.145
Sometimes, pending the hearing of a fundamental rights application, the Court may order a petitioner who is in police custody to be produced before a magistrate who may be directed, if he or she is of the opinion that the petitioner should be held in custody, that the petitioner be detained in an authorized prison.
The range of relief the Court may grant is very wide. In Kalyanie Perera v Siriwardena146 the Court awarded the petitioner compensation for her illegal detention of one year; ordered her release and directed the Army, which had taken two of her vehicles, to return them to the petitioner.
Other remedies
Not all delicts are violative of fundamental rights. For instance, an assault may be a delict but may not be a violation of Article 11. As we have seen, actions that are not by "executive or administrative action" are not actionable under the Constitution.Thus redress for the order of a judge concerning wrongful detention should be taken up in an appellate court.147 Where a complaint by a private person results in illegal arrest, but he was not guilty of conduct that would have made him personally responsible for executive action, the Court held him not liable for violating Article 13(1) and referred to the fact that the petitioners had other remedies for harm resulting from the alleged false complaint.148
Acts that violate fundamental rights may also be actionable wrongs for which relief may be sought in other courts. While the availability of other relief is no bar to an application for relief under the provisions of the Constitution149 the Supreme Court may grant a declaration of violation and award costs but prefer, in the circumstances of a case, to leave the matter of compensation to be sought in another action in another forum, especially if; it seems, a party appears to have no financial or other difficulty, or it is otherwise appropriate in the circumstances to pursue relief in other courts or tribunals.150
Posted on 2003-01-27
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