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LRRP men’s fundamental rights case
Irreparable damage to national security: SC rules
The Supreme Court this week ruled that the fundamental rights of the men attached to the 'Long Range Reconnaissance Patrol" of the Directorate of Military Intelligence had been violated and directed that Rs. 800,000 be paid to each of the five petitioners as compensation and costs.

The state was directed to pay Rs. 750,000 to each of the petitioners while the first respondent Police Superintendent K. Udugampola was asked to pay personally each petitioner Rs. 50, 000 as compensation. The bench comprised Chief Justice Sarath N. Silva, Justices Shirani A.Bandaranayake and P.Edussuriya.

The Court also directed that the sums be paid within three months from the day of the judgment (January 29) and directed that a copy of the judgment be sent to the Inspector General of Police.

The five petitioners were S. H. Mohamed Nilam, Prema Ananda Udalagama, H. M. Nissanka Herath, I. Edirisinghe Jayamanne and Habeeb Mohamed Hilmy - all members of the DMI's LRRP unit, which, with the assistance of certain civilians, conducted undercover operations in the Eastern Province.

The Court held that the petitioners' fundamental rights were violated. The Judgment said they noted submissions by counsel for the petitioners that as a result of the conduct of SP Udugampola and his subordinates, several patriotic intelligence operatives had been killed and the covert operations being conducted by the petitioners were exposed and their lives and those of their families were endangered.

The Court submitted that the cause of the predicaments of the petitioners and the deaths of so many intelligence operatuives resulting in irreparable damage to national security was due to the conduct of Mr. Udugampola and that therefore he should be personally responsible for what had taken place.

Citing Article 13 (1) of the Constitution, which states, "no person shall be arrested except according to procedure established by law and any person arrested shall be informed of the reason for arrest," the Court noted discrepancies in the reasons Mr. Udugampola gave for arresting the petitioners.

The Court said that on considering the totality of the circumstances of this case, the first respondent had no valid basis for the arrests and he had not informed the petitioners the reason for their arrest.The Court also held that there was a clear violation of the petitioners' fundamental rights guaranteed by Article 13 (2) of the Constitution which states, "Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law."

After examining the petitions in terms of this Article, the Court said that it was abundantly clear that the detention of the petitioners since 6.01.2002 was unlawful and a violation of the petitioners' fundamental rights.

In relation to Article 11 which states that "no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment," the Court said Article 11 was not restricted to physical impairment as it clearly referred to cruel, inhuman and degrading treatment or punishment." It is well settled law that Article 11 could be applicable to physical as well as psychological trauma and the only required criterion is that consideration should be given to the circumstances of each case to see whether the incident complained of would come within the purview of "degrading treatment."

In this instance, the Court held that upon a consideration of a totality of events that took place, it was of the view that the actions meted out by the respondents would have aroused feelings of humiliation and the suffering that the petitioners had to undergo was of an aggravated kind that reached the expected levels of severity that is necessary to establish a violation of this Article on the basis of degrading and inhuman treatment.

The Court concluded that the petitioners’ fundamental rights had been violated by executive and administrative action and directed the payment of compensation and costs. S.L. Gunasekara with Manohara de Silva, Dilshan Jayasooriya and Prasanna Gunasena appeared for the petitioners.

Shibly Aziz, PC with Faizer Musthapha and Rohan Deshapriya appeared for the first respondent Kulasiri Udugampola. Kolitha Dharmawardane with Sampath Soyza for the second and third respondents, Sub Inspector R.A.P. Dharmaratne and HQI M.A.E.Mahendra. Upul Jayasuriya appeared for fourth and fifth respondents SSP Ashoka Ratnaweera and Inspector M.M.M.B.J. Mohottigedara. Senior State Counsel Shavindra Fernando with State Counsel Viveka Siriwardena de Silva represented the State.

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