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State should address police violence, custodial torture: SC

04 Mar 2021

The State should consider addressing and mitigating the problem of police violence, and custodial torture and death, the Supreme Court (SC) noted in the context of deciding on a case of custodial torture. The case in question was Kandawalage Don Samantha Perera v. Officer-In-Charge of the Hettipola Police Station and Others (SC FR Application 296/2014) where the petitioner had claimed the infringement of his fundamental rights (FR) under Articles 11 (freedom from torture or cruel, inhuman, or degrading treatment or punishment), 12(1) (right to equality before the law and equal protection of the law), 13(1) (freedom from arbitrary arrest), and 13(2) (freedom from arbitrary detention) of the Constitution. President’s Counsel (PC) and Justice (J) S. Thurairaja, in his opinion, (joined by Priyantha Jayawardena PC J. and L.T.B. Dehideniya J.) held that: “The consistent pattern of police violence, custodial torture, and death as evidenced by the considerable number of FR petitions filed before this Court, indicates that the State should consider addressing and mitigating the problem.” The United Nations (UN) Convention Against Torture (CAT) and Other Cruel, Inhuman, or Degrading Treatment or Punishment is a legal instrument which has not only been ratified by Sri Lanka but has also enacted enabling legislation in the form of the CAT and Other Cruel, Inhuman, or Degrading Treatment or Punishment Act No. 22 of 1994 as amended. The CAT Act defines torture as any act which causes severe pain, whether physical or mental, to another. This law defines the act as being done for the purposes of obtaining from another or a third party, any information or a confession, or punishing another for any act which he/she or a third party has committed or is suspected of having committed, or intimidating or coercing another or a third party or done for any reason based on discrimination, and in every case, done by, or at the instigation of, or with the consent or acquiescence of, a public officer or another acting in an official capacity. Quoting from the European Commission of Human Rights case of Denmark, Norway, Sweden, and Netherlands v. Greece, also known as the Greek Case (as discussed in the Journal of Universal Human Rights [1979] 1, Number 4, 42) and the European Court of Human Rights case of Tyrer v. The United Kingdom, Dr. Jayampathy Wickramaratne PC, in his book “FR in Sri Lanka” noted that “gross humiliation or driving an individual to act against his will or conscience may be deemed to amount to degrading treatment”. The late Prasanna Jayawardena PC J. joined by Vijith Kumara Malalgoda PC J. and Murdu N.B. Fernando PC J. observed in Dr. Ajith C.S. Perera v. Daya Gamage and Others that, “the concept of human dignity, which is the entitlement of every human being, is at the core of the FR enshrined in our Constitution. It is a fountainhead from which these FR spring forth and array themselves in the Constitution, for the protection of all the people of the country”. Explaining that Sri Lanka as a society is committed to protecting the dignity and wellbeing of the people (see the Preamble/Svasti of the Constitution), Thurairaja reiterated that human dignity is a constitutional value that underpins the FR jurisdiction of the SC, noting therefore that human dignity as a normative value should buttress and inform the SC’s decisions on FR. Article 11, which guarantees that no person shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment is, Thurairaja elaborated, an unqualified, non-derogable right to which every person is entitled to. The unqualified nature of the right, together with the fact that it is an entrenched provision, make it, as pointed out by Thurairaja, abundantly clear that the Constitution envisages zero tolerance towards cruel, inhuman, or degrading treatment which is the antithesis of human dignity. According to Thurairaja, when investigating allegations of custodial violence inflicted by the Police, it is relevant to keep in mind the inherent difficulties in proving the allegations. In this regard, Dr. Wickramaratne, citing the Greek Case observed that: “First, a victim or a witness able to corroborate his/her story might hesitate to describe or reveal all that has happened to him/her for fear of reprisals upon himself/herself or his/her family. Secondly, acts of torture or ill-treatment by agents of the Police or the armed services would be carried out as far as possible without witnesses and perhaps without the knowledge of the higher authority. Thirdly, when allegations of torture or ill-treatment are made, the authorities, be it the Police, the armed services, or the ministers 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 the higher authority to admit or allow inquiries to be made into facts which might show that the allegations are true. Lastly, traces of torture or ill-treatment may, with the lapse of time, become unrecognisable, even by medical experts, particularly where the form of torture itself leaves few external marks.” E.A.D. Atukorale J. with Chief Justice Suppiah Sharavanada and Lucian Hector de Alwis J. agreeing, observed in Amal Sudath Silva v. Kodituwakku, Inspector of Police, and Others, that: “The police force, being an organ of the State, is enjoined by the Constitution to secure and advance this right and not to deny, abridge, or restrict the same in any manner and under any circumstances. It is the duty of this Court to protect and defend this right jealously to its fullest measure with a view to ensuring that this right which is declared and intended to be fundamental is always kept fundamental. This Court cannot, in the discharge of its constitutional duty, countenance any attempt by any police officer, however high or low, to cancel or distort the truth induced, perhaps by a false sense of police solidarity.” Emphasising that the violation of the right to liberty guaranteed by Articles 11 and 13 (freedom from arbitrary arrest, detention , and punishment) of the Constitution should be of serious concern, Thurairaja recommended that the State, as per its responsibility, should take more proactive steps to address the gap between the law and the practice. Towards this end, Thurairaja recommended utilising as a starting point, Article 10 of the CAT. Article 10 of the Convention holds that “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”, and that “each state party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person”.

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