Human Dignity as a normative value should buttress and inform Court decisions: SC decides
Kandawalage Don Samantha Perera Vs. Officer In Charge, Police Station, (SC FR No.296/2014, decided on 16.06.2020) Download
Decided by S. Thurairaja PC. J with Priyantha Jayawardena PC J, L.T.B.Dehideniya J agreeing.
Articles 11, 12(1), 13(1), 13(2) and 13(3) of the Constitution; theft and desertion of the army; arrest; manner of arrest whether degrading; detention; torture; custodial violence.
The Petitioner claimed that he was unlawfully arrested, detained and subject to torture, cruel and inhuman treatment and Respondents and the State have infringed the Fundamental Rights guaranteed to him under Articles 11, 12(1), 13(1), 13(2) and 13(3) of the Constitution.
[Relied upon] observations of Justice Prasanna Jayawardena in Ajith Perera v. Daya Gamage et al. [SC FR Application No. 273/2018 at page 23] (decided on 18th April 2019)
“it seems to me that the concept of human dignity, which is the entitlement of every human being, is at the core of the fundamental rights enshrined in our Constitution. It is a fountainhead from which these fundamental rights spring forth and array themselves in the Constitution, for the protection of all the people of the country.”
‘Human Dignity’ is a constitutional value that underpins the Fundamental Rights jurisdiction of the Supreme Court. I am of the view that ‘Human Dignity’ as a normative value should buttress and inform our decisions on Fundamental Rights.
Article 11 of the Constitution guarantees that no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. It is an unqualified, non-derogable right to which every person is entitled. The unqualified nature of the right together with the fact that it is an entrenched provision make it abundantly clear that the Constitution envisages ‘zero tolerance’ towards cruel, inhuman or degrading treatment which is the anti-thesis of ‘Human Dignity’.
[Court in] agreement with Atukorale J’s observations with Sharavanada CJ and LH de Alwis J agreeing in Sudath Silva v. Kodithuwakku [(1978) 2 Sri LR 119 at page 126 -127]
“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.”
[G]ross humiliation or driving an individual to act against his will or conscience may be deemed to amount to ‘degrading’ treatment [Jayamapthi Wickramaratne in ‘FUNDAMENTAL RIGHTS IN SRI LANKA’ (2nd edition, Stamford Lake Publications 2006) at page 208 – 209 quoting from Denmark, Norway, Sweden, and the Netherlands v. Greece (1969) 12 YBECHR 1 and Tyrer v. The United Kingdom (1978) 17 YBECHR 356)]
As a society that is committed to protecting the Dignity and Well-being of the People (See the Preamble/ Svasti of the Constitution), the violation of the right to liberty guaranteed by Articles 11 and 13 of the Constitution should be of serious concern and in my view, the State should take more proactive steps to address the gap between the law and practice.
[Detention] without producing him before a Magistrate to be unlawful and hence violation of Article 13(2) of the Constitution.
[Court finds] arrest to be improper, unlawful and a violation of the Petitioner’s rights enshrined under Article 13(1) and 13(2) of the Constitution.
Petitioner’s fundamental right under Article 11 has been violated by the 1st and 2nd Respondents [OICs]
In view of the violation of the Petitioner’s rights under Articles 11 and 13, [the court finds]
that the Respondents and the State have violated the Petitioner’s right to equal protection of the law guaranteed under Article 12 (1) of the Constitution.
Petitioner has been subject to torture within the meaning of the [Convention Against Torture Act No 22 of 1994.
*Note: Editor’s interpolations in quotes are within square brackets. The paragraphs quoted may not be in the same sequence as in the judgement.