By Ishan Kumar
Introduction
“I know that it’s hard to believe that the people you look to for safety and security are the same people who are causing us so much harm.
― Ijeoma Oluo, So You Want to Talk About Race
On 17th December 2019, the Sri Lanka Supreme Court in the case of Rathnayeke Tharanga Lakmali Vs Niroshan Abeykoon delivered a historic judgment. The Apex court vide its ruling awarded a huge compensation of Rs 2.75 million to the petitioner whose husband had died in police custody. Out of the total compensation awarded to the petitioner,1 million has to be paid by the state as it had failed to prevent the violation of the fundamental rights of the deceased. The police had arrested the deceased on a frivolous charge that he had committed a murder and had stored live ammunition in his house. The court held that the state had violated Articles 11 and 13 of the Sri Lankan Constitution.
Background of the Case
On 16th September 2010, a police team, led by the Officer-in-Charge of the Crime Branch of the Embilipitiya Police Station, came to the house of the petitioner and the deceased. They raided the house and did not find anything. Subsequently, the cops arrested the deceased and took him away in a vehicle. On enquiring about the reason for the arrest, the deceased was told that he was being taken to record his statement. On 17th September, the petitioner paid a visit to the police station to meet the deceased. However, she was told that the deceased had been taken to her house. On reaching home, the petitioner was informed by her mother that the police had brought the deceased and shown him to them. The petitioner claimed that the cops had even gone to the extent of telling the deceased that he could have his last lunch. On 19th September, the elder brother of the deceased told the petitioner that the deceased was shot and taken to the Embilipitiya Hospital.
The petitioner claimed that
- the deceased has been arrested on false charges without any credible material and without reasons being given for the arrest,
- the deceased has been detained in custody without adherence to procedure established by law and without any justification,
- the deceased has been subject to torture, cruel, inhuman degrading treatment and punishment by being assaulted,
- the deceased has been killed by the police whilst he was in the custody of the 1st to 4th Respondents who have thereafter fabricated a version to justify the killing.
On the other hand, the respondents claimed that the deceased was arrested on 17th September 2010 based on credible evidence that he was involved in the unsolved murder of Kanakanamge Ananda Sunil Shantha committed in the Embilipitiya area. Also, live ammunitions were recovered from his house at the time of his arrest. The respondents strengthened their claim by submitting that the facts were reported to the Magistrate of Embilipitiya through the Assistant Superintendent of Police (ASP) i.e. the 7th Respondent and a detention order was obtained. Hence, the arrest of the deceased was lawful. The respondents also stated that on the night of 18th September 2010, the deceased was taken out of the police station to recover a weapon hidden in the deceased’s plantain grove. They asserted that on the way, the deceased tried to snatch the rifle of the 3rd respondent and he was killed as a result of the sudden pull of the trigger of the rifle.
Judgment and its Analysis
After perusing the submissions of the appellant and the respondents, the Supreme Court delivered the verdict in favour of the appellant. The learned judge, in this case, observed that the Sri Lankan legal system provides for investigation, inquiry, trial, and punishment by proper authorities which is the base of democracy and the Rule of Law. As per Article 13(4) of the constitution, no person shall be punished with death or imprisonment except by order of a competent court. Justice White, in Wolff v. McDonnell, observed that even a convicted criminal has a right not to be arbitrarily deprived of his life except in accordance with the procedure established by law. Article 11 guarantees freedom from torture and from cruel and inhuman treatment or punishment. Unlawfully to deprive a person of life, without his consent or against his will, would certainly be inhumane treatment, for life is an essential pre-condition for being human. The principle of ‘right to life’ has also been implicitly recognized by Sri Lanka through the ratification of various International Conventions. Also, Article 27 (2) (15) of the Directive Principles of State Policy mandates the state to foster respect for international law and treaty obligations in dealings among nations.
Justice S. Thurairaja held that Article 11 (read with Article 13(4)) recognises a right not to deprive life whether by way of punishment or otherwise and by necessary implication, recognises a right to life. He opined that this right must be interpreted broadly, and the jurisdiction conferred by the Constitution on this court for the sole purpose of protecting fundamental rights against executive action must be deemed to have conferred all that is reasonably necessary for this Court to protect those rights effectively (cf. Article 118(b)). He was of the view that Article 11 and 13 have been violated by the respondents. As a result, the Supreme Court reaffirmed that the state had violated the Fundamentals rights of the deceased and directed it to pay Rs One million compensation for the custodial killing of the deceased.
The Way Ahead
Sri Lanka had faced criticism from across the globe for failing to curb human right violations of its citizens at the hands of the state machinery and the security forces. The country had recently witnessed the end of the civil war which lasted from 1983-2009.Though the war has officially ended, forced disappearances and custodial deaths of inmates and undertrials continued to take place. The state indulged in violence to curb dissent, particularly against human rights activists and journalists. In 2015,Sri Lanka co-sponsored a resolution at the U.N Human Rights Council in which it committed to take steps towards transitional justice.Thus, the judgment delivered by the three-judge bench of the Sri Lankan Supreme Court gains significance as it symbolises the state’s effort to ensure that the perpetrators of serious human rights violations like custodial torture are brought to the book. The tough stand of the apex court in the present case would ensure that the cops would act within the constitutional powers assigned to them. There is still scope for further strengthening the municipal laws to ensure that they are in consonance with the UN Convention against torture and Other Cruel, Inhuman and degrading treatment. Moulding domestic laws on guidelines of international conventions would hopefully lead to the end of the malaise of custodial torture and death at the hands of the police.
[The author is an undergraduate law student pursuing B.A. LL.B (Hons.) from GNLU, Gandhinagar.]
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