{"id":83288,"date":"2023-12-17T00:54:39","date_gmt":"2023-12-17T04:54:39","guid":{"rendered":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83288"},"modified":"2023-12-17T23:21:51","modified_gmt":"2023-12-18T03:21:51","slug":"83288","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83288","title":{"rendered":"Acting IGP Deshabandu Tennekoon, along with subordinates had violated the law in arresting an ex-soldier for alleged implication in several thefts, thereafter unlawfully detaining and torturing him during 15th -22nd December 2010. States Supre Court Ruling"},"content":{"rendered":"


\nBy<\/p>\n

Kishali Pinto -Jayawardene<\/strong><\/p>\n

In another dubious record for Sri Lanka\u2019s paralyzed criminal justice system, the Acting Inspector General of Police (IGP) who had assumed his post recently trailing clouds of controversy regarding his professional conduct, has been held directly responsible by the Supreme Court for violation of Article 11 of the Constitution (freedom from torture and cruel, inhumane and degrading treatment).<\/p>\n


\n\u201cThe big fish in the pond\u2019<\/strong><\/p>\n

As observed with justifiable ire, the Court had on umpteen times, laid down \u2018guiding principles\u2019 as to how law enforcement officers must act but \u2018all such attempts continue to fall on deaf ears.\u2019 It was held that Acting IGP Deshabandu Tennekoon, along with subordinates had violated the law in arresting an ex-soldier for alleged implication in several thefts, thereafter unlawfully detaining and torturing him during 15th -22nd December 2010.<\/p>\n

Articles 11 (freedom from torture), 12 (1) (right to equal treatment of the law) 13 (1) and (2) (unlawful arrest and detention) were found to have been violated. Writing for the Court, S Thurairaja J (with K Wickremesinghe and Priyantha Fernando JJ agreeing) observed in Weheragedera Ranjith Sumangala v Bandara, Police Officer and others, SCM 14.12.2023), that \u2018while findings of fundamental rights are ample, the wrongdoers \u2013 specially the big fish in the pond – are seldom held duly accountable.\u2019<\/p>\n

Senior officers, under whose authority and direction their subordinates may act, have a special duty that they do not abuse such authority or go beyond such direction,\u2019 the Bench said. In the wake of this ruling, some have (unconvincingly) opined that this decision does not attract such awful repercussions as for example, a criminal conviction of the senior police officer in question.<\/p>\n

<\/p>\n

Classic signs of custodial torture<\/strong><\/p>\n

However, that argument must be dismissed with force. Pointedly, the Court has directed the National Police Commission to take \u2018appropriate disciplinary action\u2019 against the relevant officers and directed each individual respondent to pay compensation amounting to rupees five hundred thousand. Hence, there is little doubt as to the severity of the result.<\/p>\n

Indeed, the case illustrates features of abuse familiar to most of us for decades, including the forced admission of guilt through the use of torture while detaining suspects beyond the permissible limits of the law. In response to Sumangala\u2019s fundamental rights petition filed as far back as on 28th March 2011, the police argued that he had been arrested based on a \u2018reasonable suspicion\u2019 that he was part of a thieving gang, using \u2018minimum force\u2019 since he had resisted arrest.<\/p>\n

But the Court found several inconsistencies in the police version, including finding that the police officers lied about the date of arrest being 17th December 2010 whereas the facts of the case established that it had been two days earlier and that the petitioner had been mercilessly tortured in the meantime. Pertinently, what had to be assessed was not the guilt or otherwise of the petitioner in regard to allegations of theft but whether constitutional safeguards in arrest and detention had been observed.<\/p>\n

Criminals have rights too<\/strong><\/p>\n

\u2018Even reconvicted criminals of the most notorious kind are entitled to their fundamental rights,\u2019 the Bench pronounced. As such, the question of a \u2018reasonable suspicion\u2019 in regard to alleged implication in theft will matter purely in regard to the question as to whether grounds existed for arrest. That cannot be relevant in regard to the violation of Article 11 as torture, inhuman and degrading treatment are \u2018absolutely abominable in law under all circumstances,\u2019 it was reminded.<\/p>\n

The complaint of theft in this case had been filed anonymously which required \u2018utmost caution\u2019 in further steps to be taken. That caution had not been manifested and the petitioner had not been given reasons for arrest. He had been detailed beyond the time limit permitted by law, was not allowed to consult with his lawyer or communicate with friends and family.<\/p>\n

At that time, the incumbent in the seat of the Acting IGP had been serving as Superintendent of Police, Nugegoda Division. Tennekoon\u2019s counter to the Petitioner\u2019s version of events, was filed late this year, \u2018did not challenge much of the averments in the petition.\u2019 <\/p>\n

The impugned and detention was upon Tennekoon\u2019s \u2018direction and instruction,\u2019 he had visited the place where the petitioner was detained and had beaten him with a \u2018three wheeler rubber band\u2019 after stripping him naked. The medico-legal report corroborated the injuries inflicted upon him, establishing \u2018repugnant\u2019 behaviour.\u2019<\/p>\n


\nWhy do police officers ignore the Constitution?<\/strong><\/p>\n

Meanwhile, the Bench makes the (jurisprudentially colourful) observation that the violations in issue \u2018is a glowing testimony as to the almost prophetic prudence of Sir Fitzjames Stevens in making confessions to a police officer inadmissible\u2019 in the drafting of the Indian Evidence Act, followed by Sri Lanka\u2019s Evidence Ordinance. That is certainly so.<\/p>\n

But the Court\u2019s lamentations as to why law enforcement officers continue to violate the Constitution have a wider context. First this speaks to the political immunity afforded to perpetrators in uniform. The famous boast from the 1970\u2019s was that, officers found constitutionally culpable by the Court were promoted by the Jayawardene Government and fines ordered to be paid by them, paid out of a \u2018special fund\u2019 established for that purpose.<\/p>\n

Second, we have the failure under our twin anti-terror laws, the Public Security Ordinance (1947) and the Prevention of Terrorism Act (1979), to observe that same \u2018prophetic prudence\u2019 in shutting out confessions to police officers. Indisputably, that has had a terrible impact in subverting if not perverting \u2018normal\u2019 law enforcement, as reflected in the routine prevalence of torture in police stations. That is to be expected surely.<\/p>\n

Laxity in \u2018anti-terror\u2019 laws rebounding on the South
\nIf police officers are given extraordinary leeway in extracting confessions using torture from \u2018anti-terror\u2019 suspects, that perversion would inevitably seep into all aspects of law enforcement. This is where naively \u2018applauding\u2019 tough laws against \u2018terrorists\u2019 of minority ethnicity becomes ironic in the extreme. That has now well and truly rebounded on the South as an ex-army officer, Weheragedera Ranjith Sumangala found out to his miserable misfortune. This is precisely why we need to look at \u2018anti-terror\u2019 laws with extreme circumspection.<\/p>\n

That danger still persists. For example, the Government\u2019s proposed Anti-Terror Bill, the successor to the Wickremesinghe-led Government\u2019s (2015-2019) Counter-Terror Bill, proposed to replace the PTA has been withdrawn for \u2018public consultation.\u2019 However its contents do not seem to have undergone significant revision. To give due credit, the Bill omits the provision regarding admissibility of confessions to senior police officers that had been a staple of Sri Lanka\u2019s counter-terror regime.<\/p>\n

But that benefit is outweighed by a host of other law enforcement excesses which will inevitably pervert our criminal justice system even further. Ministerial bleating that anyone who is dissatisfied can go to Court against these drafts is not a sufficient answer. The Government must articulate a balanced counter-terror state policy rather than look to the Court to cross the \u2018t\u2019s\u2019 and dot the \u2018i\u2019s.\u2019<\/p>\n


\n\u2018Torturing\u2019 the Constitution<\/strong><\/p>\n

Absent a comprehensive overhaul of practices of \u2018ordinary\u2019 law enforcement or \u2018counter-terror\u2019 as the case may be, judgements even of the apex court will have limited value. Along with the systemic weakening of individual liberties which crosses boundary lines of ethnicity, the Constitution itself is routinely subjected to cruel, inhumane and degrading treatment.<\/p>\n

And we will \u2013 along with the Court \u2013 helplessly if not hopelessly continue to ask the question posed by the 1st-2nd century Roman satirical poet Juvenal, \u2018Quis custodiet ipsos custodes?\u2019 (\u2018who will guard the guards?\u2019).<\/p>\n

That question is not likely to be answered anytime soon.
\n
\nCourtesy:Sunday Times<\/em><\/p>\n

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By Kishali Pinto -Jayawardene In another dubious record for Sri Lanka\u2019s paralyzed criminal justice system, the Acting Inspector General of Police (IGP) who had assumed his post recently trailing clouds of controversy regarding his professional conduct, has been held directly responsible by the Supreme Court for violation of Article 11 of the Constitution (freedom from …<\/p>\n

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