FREEDOM FROM TORTURE.

 

CONSTITUTIONAL ARTICLES & DECIDED JUDGEMENTS ON FREEDOM FROM TORTURE.

Duncan Abeynayaka – LLB, Attorney At Law

 

SRI LANKA'S CONSTITUTION OF 1978

Article 11

No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

 

UNIVERSAL DECLARATIONS OF HUMAN RIGHTS

Article 05

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

 

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Article 07

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

 

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT No. 22 of 1994

SEC 2. (1) Any person who tortures any other person shall be guilty of an offence under this Act.

(2) Any person who”

(a) attempts to commit;

(b) aids and abets in committing ;

(c) conspires to commit,

an offence under subsection (1), shall be guilty of an offence under this Act

SEC 12.            ”torture” with its grammatical variations and cognate expressions, means any act which causes severe pain, whether Physical or mental, to any other person, being an net which is”

(a) done for any of the following purposes that is to say”

(i) obtaining from such other person or a third person, any information or confession; or

(ii) punishing such other person for any act which he or a third person has committee, or is suspected of having committed ; or

(iii) intimidating or coercing such other person or a third person ; or

(b) done for any reason based on discrimination,

and being in every case, an act which is done by, or at the initiation of, or with the consent or acquiescence of, a public officer or other person acting in an official capacity

 

DECIDED JUDGEMENTS

01. VELMURUGU V A.G. (1981) (1 SLR 406)

SHARVANANDA J

The liability of the State extends to the unlawful acts of a wide class of public officers, including subordinate officers at peripheral levels who in nowise constitute the decision making core of the administration. This is a new liability imposed directly on the State by constitutional provisions. The common law test of tortious liability cannot provide a sufficient test.

Article 11 which gives protection from torture and ill-treatment is the only fundamental right that is entrenched in the Constitution in the sense that an amendment of this clause would need not only a two-third majority but also a Referendum. It is also the only right in the catalogue of rights set out in Chapter III that is of equal application to everybody and which in no way can be restricted or diminished. This right occupies a preferred position and it is the duty of this court to give it full play and to see that its provisions enjoy the maximum application.

The State should be held strictly liable for any acts of its high state officials. The liability in respect of subordinate officers should apply to all acts done under colour of office, i.e. within the scope of their authority, express or implied, and should also extend to such other acts that may be ultra vires and even in disregard of a prohibition or special directions provided that they are done in the furtherance or supposed furtherance of their authority or done at least with the intention of benefiting the State.

The application of a concept of administrative practice can extend State responsibility to cases where the material before court can show that occurrence of the acts complained of can be attributed to the existence of a general situation created or brought about by the negligence and indifference of those in authority. In the instant case if liability is to be imputed to the State, it must be on the basis of an administrative practice and not on the basis of an authorisation, direct or implied, or that these acts were done for the benefit of the State. It is not possible to characterise those acts, if they had taken place as alleged as acts incidental to the authority and powers vested in those persons nor have they been performed to further some objective of the State. They seem to be in the nature of individual-and personal acts due to some aberration or idiosyncracy. They are also suggestive of the venting of some grievance of a personal or private nature or in consequence of some strong passion, prejudice or malice. They are admittedly illegal and criminal acts and not merely acts that are unauthorised and ultra vires.

The alleged acts of torture and ill-treatment cannot impose liability on the State as a matter of law. The alleged acts have not been authorised, encouraged, or countenanced or performed for the benefit of the State.

The European Commission on Human Rights in the 'Greek case' commented on the difficulties faced by litigants alleging that public officers had inflicted or instigated acts of torture:

"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 authories, 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, traces of torture or ill-treatment may with lapse of time become unrecognizable, even by medical experts, particularly where the form of torture itself leaves.....few external marks." — Vide Journal of Universal Human Rights, Vol. 1, No. 4, Oct-Dec. 1979 at p.42.

 

02. NAMASIVAYAM VS GUNEWARDENA [1989] 1 SLR 294

SHARWANANDA CJ

On the question whether the petitioner was subject to cruel treatment or torture, petitioner's averments stands uncorroborated by any medical evidence and has been denied by the Respondents. The evidence is not sufficient for us to hold that there had been' any violation of Article 11 of the Constitution.

 

03. MRS. W. M. K DE SILVA V CHAIRMAN, CEYLON FERTILIZER CORPORATION (1989) 2 SRI LR 393

JAMEEL, J.

Per Amerasinghe, J. In my view Article 11 of the Constitution prohibits any act by which severe pain or suffering, whether physical or mental, is. without lawful sanction in accordance with a procedure established by law, intentionally inflicted on a person (whom I shall refer to as the 'victim' by a public official acting in the discharge of his executive or administrative duties or under colour of office, for such purposes as obtaining from the victim or a third person a confession or information, such information being actually or supposedly required for official purposes, imposing a penalty upon the victim for an offence or breach of a rule he or a third person has committed or is suspected of having committed, or intimidating or coercing the victim or a third person to do or refrain from doing something which the official concerned believes the victim or the third person ought to do or refrain from doing, as the case may be.

Article 11 is a species belonging to a certain genera. It belongs to that class which protects life and personal freedom. It belongs to the same family as the fundamental rights of freedom from arbitrary arrest, detention and punishment and retroactive penal legislation.

Article 11 is not concerned with the conduct of public officials in relation to such matters as one's contractual rights in a place of work.

 

04. PREMALAL DE SILVA VS INSPECTOR RODRIGO 1991 2 SLR 307

The rule is that the petitioner must prove his allegations to the satisfaction of this Court. The degree of proof is not so high as in a criminal case. The test is that applied in civil cases but the degree of proof could vary depending on the subject matter. Thus where the allegation is a serious one such as torture and inhuman treatment by the executive and administrative authorities of the State a high degree of probability proportionate to the subject matter is necessary.

 

05. CHANNA PIERIS AND OTHERS V. ATTORNEY GENERAL AND OTHERS (1994) 1 SLR 1

AMARASINGHE J

In regard to violations of Article 11 (by torture, cruel, inhuman or degrading treatment or punishment), three general observations apply:

(i) The acts or conduct complained of must be qualitatively of a kind that a Court may take cognizance of. Where it is not so, the Court will not declare that Article 11 has been violated.

(ii) Torture, cruel, inhuman or degrading treatment or punishment may take many forms, psychological and physical.

(iii) Having regard to the nature and gravity of the issue, a high degree of certainty is required before the balance of probability might be said to tilt in favour of a petitioner endeavouring to discharge his burden of proving that he was subjected to torture or to cruel, inhuman or degrading treatment or punishment: and unless the petitioner has adduced sufficient evidence to satisfy the Court that an act in violation of Article 11 took place, it will not make a declaration that Article 11 of the Constitution did take place.

 

06. ABEYWICKREMA VS GUNERATNE [1997] 3 SLR 225

SHIRANI BANDARANAYAKE J.

Something might be degrading in the relevant sense, if it grossly humiliates an individual before others, or drives him to act against his will or conscience.

 

07. ADHIKARY AND ANOTHER V. AMARASINGHE AND OTHERS (2003) 1 SLR 270

SHIRANI A. BANDARANAYAKE, J.

Article 11 provides that ‘no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. Petitioners generally have sought a declaration of violation of the fundamental right in terms of Article 11, in situations where there had been assault and/or infliction of injuries. In the instant case, although the petitioners’ claimed that they were assaulted, the basic allegation is not on the physical injuries caused to them by such action. In fact there is no material before this Court regarding any kind of physical injuries and no submissions were made to the effect that the petitioners had sought any medical assistance. However, the fundamental rights guaranteed in terms of Article 11 are not restricted to mere physical injury. The words used in Article 11, viz., ‘torture, cruel, inhuman or degrading treatment or punishment1* would take many forms of injuries which could be broadly categorized as physical and psychological and would embrace countless situations that could be faced by the victims. Accordingly, the protection in terms of Article 11 would not be restricted to mere physical harm caused to a victim, but would certainly extend to a situation where a person had suffered psychologically due to such action.

When police officers, who are guardians of the law and whose duties include 'to prevent all offences, preserve peace and to apprehend disorderly characters', behave in an outrageous manner without paying heed to safe guarding and protecting the rights of the people, a dismal picture of such officers held in such high esteem emerges.

If officers with such authority are not trained to act with dignity and humility in respect of the rights of the people, it is my view that the State has an obligation to bear the costs of such action. It is not in any sense to punish the State, but merely as a regret and a solatium for the hurt caused to the petitioners by the actions of the 1 st and 2nd respondents. We have, however, to be mindful of the amounts to be awarded so that it would not be burdensome on the common man in the street.

 

08. DESHAPRIYA V CAPTAIN WEERAKOON, COMMANDING OFFICER, SRI LANKA NAW SHIP “GEMUNU” AND OTHERS [2003] 2 SRI L.R 99

FERNANDO, J.

The 1st respondent’s responsibility and liability is not restricted to participation, authorisation, complicity and/or knowledge. His duties and responsibilities as the Commanding Officer were much more onerous. In the Forces, command is a sacred trust, and discipline is paramount. He was under a duty to take all reasonable steps to ensure that persons held in custody (like the petitioner) were treated humanely and in accordance with the law. That included monitoring the activities of his subordinates, particularly those who had contact with detainees. The fact that the petitioner was being held in custody under his specific orders made his responsibility somewhat greater.

09. NANDASENA VS CHANDRADASA, O. I. C., POLICE STATION, HINIDUMA AND OTHERS (2006) 1 SRI L R. 207

SHIRANI BANDARANAYAKE, J.

Article 11 provides that no person should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The petitioner must discharge his burden regarding alleged infringement of Article 11 with a high degree of certainty. In the instant case, the evidence falls short of the required standard.

 

10. ROMESH COORAY VS JAYALATH, SUB-INSPECTOR OF POLICE AND OTHERS 2008 (2) SLR 43.

DR. SHIRANI BANDARANAYAKE, J.

“It has to be borne in mind that torture, cruel, inhuman and degrading treatment or punishment could take many forms, viz; psychological and/or physical and the circumstances of each case would have to be carefully considered to decide whether the act/s in question had led to a violation of Article 11 of the constitution."

When the allegations are considered in the light of section 12 of the Torture and other Cruel, Inhuman or Degrading treatment or Punishment Act, along with the available medical evidence, and on a consideration of the totality of the facts and circumstances and the conclusion and opinion of the Assistant Judicial Medical Officer, it is clear that the petitioner's fundamental right guaranteed in terms of Article 11 of the Constitution had been infringed by executive action.

 

11. YOHAN INDIKA HERATH VS AJITH, POLICE CONSTABLE S.C. [F/R] NO. 555/2009

18.02.2014

TILAKAWARDANE, J

The standard of proof expected of a Petitioner seeking redress for breach of this right is high. The Court has, in the case of G. Jeganathan v The Attorney General (1982) 1 SLR 294 clarified the intent of the Court in establishing such a high standard. Here the Court stated that the alleged acts must be ‘strictly proved’ due to the fact that, if the allegations are proven to be true and honest they will carry ‘serious consequences’ for the officers concerned.

This Court feels that the evidence adduced by the Petitioner in order to establish “torture” falls short of the standard that is expected by this Court. In the case of Kapugeekiyana v Hettiarachchi (1984) (2 SLR 153) the Courts upheld that the lack of evidence to the satisfaction of the Court in order to establish torture would disable a claim of the Petitioner for the breach of fundamental rights. This view is consistent with international case law such as Grant v Jamaica (1994) (Communication No. 353/1988), Fillastre (On Behalf of Fillastre and Bizouarn) v Bolivia (1991) (Communication No. 336/1988) and Soogrim v Trinidad and Tobago (1993) (Communication No. 362/1989)

12. KASTHURI ACHCHILAGE CHAMARIE SAMARADISA VS. PRASANTHA WELIKALA SC (FR) APPLICATION NO. 104/2016

6th August 2021

S. THURAIRAJA, PC, J.

It is well recognized that the term ‘Torture’ in international Conventions and in the Constitution of Sri Lanka, in Article 11 is broadly defined to encompass both injuries in the form of physical and mental nature. However, in establishing torture in terms of Article 11 of the Constitution a higher burden lies on the Petitioner to prove the alleged torture. The standard of proof required in a case of Torture is a balance of probability with a higher level of certainty weighing towards the case of the Petitioner.

 

13. SRIYANI SILVA VS. IDDAMALGODA, OFFICER-IN-CHARGE, POLICE STATION PAIYAGALA AND OTHERS, 2003 (2) SLR 63.

The petitioner’s version was credible. The police version was contradictory, improbable and had to be rejected. The deceased died of torture by the police and that prevented him from seeking relief personally under Article 126(2).

Articles 11 and 13(4) by necessary implication recognize the right to life. Hence if a person died by reason of torture or unlawful death (by the executive) the right of any person to complain against violation of a fundamental right guaranteed by Article 17 read with Article 126(2) should not be interpreted to make the right illusory; but Article 126(2) should be interpreted broadly especially in view of Article 4(d) which requires the court to “respect, secure and advance” fundamental rights.

The right of every person recognized by Article 17 to apply under Article 126 in respect of the infringement of a fundamental right is an independent fundamental right.

The deceased’s fundamental rights under Articles 11,13(2) and 17 were infringed by the 2nd respondent; and also by the 1st respondent on the ground of culpable enaction to monitor the activities of his subordinates. The deceased’s rights accrued or devolved on the petitioner and their minor child. The deceased was put to death “in order to prevent him totally and permanently from complaining........” On that ground also Article 126(2) should be interpreted expansively.

On the question of compensation, a person who has a “bad record” is entitled to the same rights as any other person. The deceased was entitled to have the allegation against him determined by a competent court, after a fair trial. As such there is no reason to mitigate the compensation due to the deceased’s dependants on the ground of deceased’s character.