SC (FR) Application No.107/2011 JUDGMENT Page 36 of 60 notes how then Superintendent of Police Deshabandhu Tennakoon tortured  suspect Nimal Perera:

Once again, I wish to place emphasis on the Affidavit of Nimal Perera, marked “P12”,
annexed to the Counter Affidavit of the Petitioner, which also establishes the torture
endured by the Petitioner and other 3 detainees in the hands of the 1st, 2nd, 4th and 5th
Respondents. Nimal Perera was taken in by the Police on 16th December 2010. The said
affidavit states as follows:

“I state that, after drying the clothes, we were taken back to the previously said building. Thereafter, we were handcuffed and they made us sit under the tables. We were not given anything to eat or drink that day. Each received a panadol tablet. We stayed under the table that night too. While we were there, a higher-ranked police officer came to the place where we were. He asked those officers who we were, and then those officers said, “ Sir, these are the fellows of the Sergeant Major’s case. There is a cattle thief too among them.”.].

I state that, then the said higher-ranked officer stripped us naked and kept us in order. All four of us were beaten around the entire body with a three-wheel rubber band and while being beaten, we were ordered to rub Siddhalepa on our genitals. We applied it with difficulty. He repeatedly thrashed us when we were in pain with smarting.]

I state that, at that moment, he received a phone call. He ordered the other police officers not to let us dress, and to keep us in this manner for about 2 hours, stating that he would be back again. Then an officer who was there said that he was not the type of officer who usually hits people, but he too thrashed us due to our ill fate. I came to know later that the said police officer was Superintendent of Police Deshabandhu Tennakoon.]”

LIABILITY OF THE RESPONDENTS  (SC (FR) Application No.107/2011 JUDGMENT page 51 of 60)

5th Respondent (Deshabandhu Tennakoon )

With regards to the 5th Respondent, it is clear from paragraphs 22, 23, 24 and 25 of the aforementioned Affidavit of Nimal Perera dated 08th June 2011, produced marked
‘P12’, he, then a Superintendent of Police, has paid a visit to the place where the Petitioner and several others were detained on 17th December 2010. The affidavit further states that the 5th Respondent himself beat the Petitioner with a ‘three-wheel rubber band’ after stripping him naked and ordering him to rub Siddhalepa on his genitalia. The 5th Respondent is specifically referred to therein by his name and rank, as it was then.

The Counter Affidavit of the Petitioner along with the aforementioned affidavits marked ‘P10’, ‘P11’ and ‘P12’, was filed before this Court on 02nd March 2012. Written Submissions of the 1st, 2nd and 4th Respondents was filed on 19 th November 2013, almost 20 months later. Even at that point, nothing was filed on behalf of the 5th Respondent.

In the interest of justice, on 19th May 2020, the Court directed the Registrar to serve notices on the 3rd and 5th Respondents informing them of the next date of hearing. The notice sent to the 5th Respondent was not returned. Written submissions of the Attorney-General on behalf of the 5th and 6th Respondents was filed on 26th September 2023.

As can be seen, the Respondents of the instant case were afforded ample opportunities to plead their cases before this Court. Upon direction by the Court, the 5th Respondent, too, filed Affidavit dated 05th October 2023. The said Affidavit only related to the Code of Criminal Procedure (Special Provisions) Acts. The 5th Respondent, represented by the Attorney-General, has not at any point during the proceedings rejected or objected to the allegations against him hereinbefore set out.

Therefore, I find the 5th Respondent to have tortured the Petitioner in violation of his fundamental rights guaranteed under Article 11 of the Constitution. For this very reason, and by the very fact, I find the 5th Respondent to have further violated the Petitioner’s rights under Article 12(1) of the Constitution.

It is also revealed by the Minute on the document marked ‘Rx(1)’, the 1st, 2nd and 4th Respondents’ Statement of Objections and the excerpts from the “හදිසි ඇමතුම් අංශයේ දෛනිකව පවත්වායෙන යනු ලබන හදිසි ඇමතුම් තොරතුරු පොත ” annexed thereto marked ‘Rx(2)’ that the 5th Respondent himself ordered the investigation and that he has had intimate knowledge of the investigation.

Deshabandu in the torture chamber 

With regards to the violation of Articles 13(1) and 13(2) of the Constitution, from the aforementioned facts, it is clear that the 5th Respondent had knowledge of the Petitioner’s detention on account of his visit on 17th December 2010 for a brief session of torture.

The 5th Respondent had received the anonymous complaint describing the involvement of the Petitioner and 3 others by name only 5 days before the arrest, and, when the 5th Respondent arrived at the torture chamber on 17th December 2010, he had inquired from another Police Officer “ මොවුන් [who are they]”, to which the other Police Officer replied “සර් යම් අර සාජන් මේජර් කේස් එවුන් [Sir, this is the parties involved in that Sargent Major’s case]”. Such a loose reference to a matter alludes to the fact that not only did the 5th Respondent have knowledge of the arrest of the Petitioner and the 3 others, but that he was kept updated on the events that transpired after the arrest on 15th December 2010.

As such, it appears that the Petitioner was kept detained without producing before a Magistrate within the legally stipulated time frame with full knowledge of the 5th Respondent. Therefore, I hold the 5th Respondent, too, to have violated the fundamental rights of the Petitioner enshrined under Articles 13(1) and 13(2) of the Constitution.

While findings of fundamental rights violations are ample, the wrongdoers—especially the big fish in the pond—are seldom held duly accountable. Senior officers, under whose authority and direction their subordinates may act, have a special duty to ensure that they do not abuse such authority or go beyond such direction. Senior officers cannot merely give orders and thereafter sleep on this duty. They are to closely scrutinize the conduct of their subordinates. The stars that adorn their uniforms are not ornaments of power, but rather, reminders of the immense responsibility that comes with their authority.

Gross neglect of this duty would render them complicit in the actions of their unruly subordinates. The concept of commission by omission is well recognized in our constitutional jurisprudence by cases such as the Easter Sunday Cases, SC/FR/163/2019, SC Minutes of 12th January 2023.

supervising officers are to be directly held liable

I am of the view that supervising officers are to be directly held liable for the conduct of their subordinates in appropriate instances, even in the absence of direct participation. Supervising officers can be held liable where there is affirmatory participation or participatory presence on the part of such supervising officers; or, where they have, directly or indirectly, implemented or enabled unconstitutional policies by turning a blind eye towards unconstitutional practices directly under their authority.

What is revealed to us in the instant case, apparent from what I have cited above from the affidavits, is a pattern of grave derelictions, which has persisted for a considerable period of time. Where such a pattern is observable, what other inference are we to draw than, either the wrongdoings have taken place with the blessings of the direct supervisors or that such supervisors have slept on the wheel? In either case, such supervisors are directly complicit in the actions so enabled.

From the circumstances established in the instant case, it is clear that the 5th Respondent has enabled, through his actions as well as inaction, the conduct of the 1st, 2nd and 4th Respondents, making him directly liable for the fundamental rights violations hereinbefore established. No material has been produced before this Court by the 5th Respondent so as to distance himself from such violations.

Therefore, I hold the 5th Respondent to have violated the fundamental rights of the Petitioner guaranteed under Articles 11, 12(1), 13(1) and 13(2) of the Constitution.

ORDERS OF THE COURT

Although relief is granted principally against the State in fundamental rights jurisdiction, in appropriate cases, cursus curiae with regards to awarding compensation has been to direct culpable officers to personally make amends. This appears to me a fit case to make such orders.

In cases of this nature, where the violations are grave, while the State must absolutely take responsibility, I do not see it sufficient to merely impose the liability on the State.

I do not see it just and equitable to impose upon the taxpayer the burden of compensating for the transgressions of errant officials. Having borne the burden of their earnings over the years, must the taxpayer compensate for their misdeeds as well?

Furthermore, the amount of compensation awarded must sufficiently reflect the gravity of the offences as well as the audacity of the offenders. Especially where violations of Article 11 are to be found, it is necessary to award compensation in such amounts adequate to deter such degenerates.

Therefore, we direct the National Police Commission and other relevant authorities to take appropriate disciplinary action against the officers we have found to be responsible.

The Respondents are ordered to pay compensation to the Petitioner in the following manner:

1. The State is ordered to pay as compensation a sum of Rs. 100,000/- (Rupees Hundred Thousand) out of the funds allocated to the Police Department, given the institutional issues observed;

2. The 1st Respondent is ordered to pay as compensation a sum of Rs. 500,000/-(Rupees Five-Hundred Thousand);

3. The 2nd Respondent is ordered to pay as compensation a sum of Rs. 500,000/-(Rupees Five-Hundred Thousand); and

4. The 4th Respondent is ordered to pay as compensation a sum of Rs. 500,000/-(Rupees Five-Hundred Thousand).

5. The 5th Respondent is ordered to pay as compensation a sum of Rs. 500,000/-(Rupees Five-Hundred Thousand).

The 1st,2nd,4th and 5th Respondents are to pay the aforementioned sums, within six months from the date of judgement, out of their personal funds.

The judgment was delivered by Justice S. Thurairaja with Justices Kumudini Wickremasinghe and Priyantha Fernando agreeing.

SC (FR) Application No.107/2011 JUDGMENT : sc_107_2011 re Deshabandu and others

By Sunanda Deshapriya