The Supreme Court has ordered the State to pay Rs 1 million each (a total of Rs 2 million) to the parents of two men who disappeared in 2008 while in custody of Batticaloa police. Court also ordered T Shantha Wickramasinghe, Officer-in-Charge of the Batticaloa police, to pay Rs 50,000 each to petitioners Selvarajah Pushparani [...]


Revolting episode in law enforcement, SC slams police in FR case ruling

Batticaloa OIC ordered to pay compensation to parents of missing men

The Supreme Court has ordered the State to pay Rs 1 million each (a total of Rs 2 million) to the parents of two men who disappeared in 2008 while in custody of Batticaloa police.

Court also ordered T Shantha Wickramasinghe, Officer-in-Charge of the Batticaloa police, to pay Rs 50,000 each to petitioners Selvarajah Pushparani and Annamalai Selvarajah (together) and to petitioners Thevapody Kandasamy and Kandasamy Palathai (together) “for having failed to provide equal protection of law to their missing sons who were subject to torture”.

“The case disclosed a shocking and revolting episode in law enforcement,” Justice Anil Gooneratne held, with Chief Justice Priyasath Dep and Justice Upaly Abeyratne agreeing. “If fundamental rights assured by our constitution are to be meaningful, trampling underfoot the fundamental freedom of the subject by law enforcement officers should not be tolerated.”

It was the third Supreme Court ruling against the Police Department in as many weeks. On May 30, the Court ordered compensation of Rs 1 million to a man tortured by officers of the Bandaragama police station. On June 6, the Court ordered three officers of the Matugama police to pay a man a total of Rs 75,000 for, among other things, arresting him on “a vague general suspicion”.

The latest judgment relates to the arrest and disappearance in October 2008 of Selvarajah Gunaseelan and K Kugadas of Batticaloa. Employees of a grocery shop in town. Both disappeared while in custody. A few days later, their bodies were washed ashore with injuries.

Their parents filed fundamental rights petitions for which the Supreme Court granted leave to proceed in April 2009. It was revealed that Mr Gunaseelan and Mr Kugadas were detained on October 3, 2008, during a police search operation done jointly with Special Task Force (STF) and the army. They were given no reason for arrest.

The families saw and spoke to the men in police custody. They tried to have them freed but the police were evasive. Around 8pm on October 4, one of the mothers was told that detainees could not be released at night “as they are not cattle to let go”. She was instructed to return the next day.

But both men were not to be found at the police station from October 5, the third day after their arrest. Other detainees said four persons had come around midnight and taken Mr Gunaseelan and Mr Kugathas away after masking their eyes. They later heard the noise of a jeep leaving the police station.

On October 9, the Batticaloa Bishop’s House telephoned the first petitioner, Selvarajah Pushparani, saying two bodies that washed ashore in the Kattankudy area were in the Batticaloa Teaching Hospital mortuary. She identified one of the bodies as that of her son, Mr Gunaseelan. The same series of events took place in the case of Mr Kugadas.

Batticaloa OIC Wickramasinghe stated in his affidavit to court said he had no knowledge of whether the two men were dead. A search of Batticaloa town was conducted on October 3 as the Chief Justice had been scheduled to declare open the new court complex there. Whilst 32 persons were “arrested on suspicion”, 25 were released on police bail the same day. Seven, including Mr Gunaseelan and Mr Kugadas, were detained for further questioning. He pleaded that they were enlarged on personal bail by 7.10 am on October 4.

OIC Wickramasinghe also said that two bodies tied to a concrete post on the beach at Polamunai in Kattankudy were later identified as Mr Gunaseelan and Mr Kugathas. He said he didn’t see the bodies. He denied any allegation of torture, cruel, inhuman or degrading treating or punishment while in police custody. He pleaded that he was not aware of what happened to the two men after their release.

The affidavits of the second and third respondents—Police Sergeant W A Rupathunga and Sub Inspector Udayanga—supported the version of events as narrated by the OIC. They, too, denied any allegation of torture, cruel, inhuman, degrading treatment while in police custody.

The Court observed that, while the officers claimed the two men were released on October 4, both sets of parents very categorically stated that their children were in police custody on that date. “Why should the parents who underwent such a traumatic experience distort facts?” the judgment asks.

It is “very suspicious and doubtful” as to why police were unable to produce the bail bond or any other valid document to establish the release. Nor did they furnish the attendance register maintained at the entry point of the police station, saying it was misplaced. Such register would have established the movement of the parents.

On the other hand, had the police released the two men, it would have been more prudent to have done so in the presence of the parents; to have obtained the signatures of the petitioners; and to have recorded their identities. Justice Gooneratne declared the arrests of Mr Gunaseelan and Mr Kugan to be unlawful and held the police “totally responsible and to be blamed”. The State has to be held responsible. The OIC’s excuses were “lame” and could not be tolerated in law or in any decent society. However, there was inadequate material to directly implicate the other two respondents–Sergeant Rupathunga and SI Udayanga–in any illegal act.

“Although the right to life is not expressly recognised as a fundamental right, that right is impliedly recognised in some provisions of Chapter III of the Constitution,” the judgment records. “If, therefore, without his consent or against his will, a person is put to death unlawfully and otherwise than under a court order, clearly his right under Article 13(4) has been infringed,” it states.

It also cites Article 14.1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which provides that: “Each state party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation”.

The petitioners were represented by Saliya Peiris, PC, with Anjana Ratnasiri. S A Collure with A P Jayaweera appeared for the first, second and third respondents. Senior State Counsel Madhawa Tennakoon represented the Inspector General of Police and the Attorney General’s Department.

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