FOR IMMEDIATE RELEASE
April 10, 2006
AP-002-2006
A Paper by the Asian Human Rights Commission (AHRC)
SRI LANKA: A commentary on the recent case of the prime minister’s fundamental rights violation
Recently, a fundamental rights application was made to the Supreme Court of Sri Lanka by former prime minister and now president, Mahinda Rajapakse, in which he cited the inspector general of police and other government officials as having violated his basic human rights, as protected under article 12(1) of the country’s constitution. On March 27, 2006 the Supreme Court ruled in favour of Rajapakse. The court also awarded him Rs. 500,000 as compensation; Rs. 200,000 was to be paid by the government and Rs. 100,000 each by the first, second and fourth respondents. This case has received wide publicity within the country, and the court judgment has been published in the Daily News.
The case and subsequent judgment raise several important questions, a few of which the Asian Human Rights Commission (AHRC) reflects upon below.
a. Does a prime minister, president, or even a minister have the legal capacity to file a fundamental rights application in their official position?
This question arises from the manner in which the application was treated by the court; it was seen not as an application by an ordinary citizen, but by Prime Minister Rajapakse. According to the court judgment,
The case is unique since the Petitioner being the then Prime Minister and second only to the President in the hierarchy of the Executive Government, alleged an abuse of the legal process of criminal investigation at the highest level of the Police, carried out at the behest of the UNP being a political party in opposition.
Under article 126 of the Sri Lankan constitution,
Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this Chapter.
What is envisaged under the constitution is the violation of the rights of ordinary people by the executive, which comprises the president, prime minister and the cabinet. The executive and the bureaucracy through which its work is carried out represents the state. The policing system works under the ministry of defence and is a part of this bureaucracy.
The problem presented by this fundamental rights application is that the executive has been attacked by the chief of police at the instigation of an opposition party. In other words, a member of the executive’s bureaucracy has acted against the executive. In such a situation, the executive must take appropriate action against the errant officer, however, under no circumstances does this fall within the scope of article 126. If those representing the state brought their various frictions with the state to the courts in this manner, the very nature of article 126 would be distorted.
b. How does this case come under article 12(1) of the constitution?
Under article 12(1), all persons are equal before the law and are entitled to equal protection of the law. Violations of this article would therefore include acts of discrimination or unfair treatment. The application filed by Rajapakse involves no discrimination on the basis of race, gender, language or religion. So what are the grounds for discrimination? That the news of a criminal inquiry into official misconduct by him as prime minister would have influence the SLFB (Sri Lanka Freedom Party)’s decision on whether he should stand as their candidate for the post of president. The fundamental rights application also conjectures that the purpose of the inquiry was to enhance the chances of the opposition party candidate in the presidential elections.
If indeed there was an unfair initiation of inquiry, the matter could have been taken up at the magistrate’s court where a report had been filed by the police, and subsequently at the appeals court. It was also possible to seek a writ at the appeals court prohibiting the criminal inquiry. However, if the matter was to be brought under article 12(1) of the constitution, the petitioner has the burden to establish that the matter falls under this article, which in this case has not been done.
c. In awarding compensation in a fundamental rights case should the fact that the complainant is the prime minister matter in the quantum of compensation?
The compensation awarded in this case is Rs. 500,000, for the initiation of illegal investigations, which allegedly is in violation of rights protected under article 12(1) of the constitution. In almost all recent awards on human rights cases, the average amount of compensation has been between Rs. 15,000 to 25,000. These cases have involved illegal arrest, detention or torture, all of which are abuses violating rights under articles 13(1), 13(2) and 11 of the constitution. Oftentimes in awarding such compensation, the court has found all three rights to have been violated.
The difference in the compensation awarded in these cases is significant, and there has been no explanation for the higher award. Compared to the present case, the compensation in the cases of torture, illegal arrest and detention should have been much higher. Article 12(1) states that there should be equality before law; this equality should also find expression in compensation awarded by courts.
d. In the hierarchy of rights, is illegal investigation worse than illegal arrest, detention and torture?
International law considers torture among the most heinous of crimes. Its prohibition is one of the four non-derogable human rights. Illegal arrest and detention are also serious fundamental rights violations. Sri Lankan courts however, have in many cases awarded paltry sums of compensation for torture, even when grave injuries have been inflicted. A few cases in the past were awarded higher sums, but recent awards average between Rs. 15,000 to 25,000, as mentioned above.
How then, is the awarding of Rs. 500,000 for an alleged illegal initiation of inquiry to be understood? Perhaps the explanation is that the inquiry was followed by publicity, which may have adversely affected the petitioner in his candidacy for the post of president. Such a matter relating to defamation should have been resolved in a civil court. Damage to reputation is not recognised as a fundamental right protected under the constitution, the infringement of which can be redressed by article 126.
e. If a complainant gives information in bad faith, is the inquiry that follows also in bad faith?
The court has concluded that being a member of an opposition political party, the fourth respondent–the complainant who initiated the inquiry–acted in bad faith. In other words, he deliberately made a false complaint in order to sabotage the petitioner’s candidacy.
Many criminal complaints are lodged by individuals seeking legal or other action against those they are complaining about. When such an individual makes a complaint, the investigator cannot know the validity of the complaint until preliminary investigations have been conducted. Investigation officers are therefore obliged to investigate all complaints. If it was left to the discretion of investigators to look into complaints, it could lead to many complaints being ignored. The defence that in the investigator’s opinion the complainant was acting in bad faith cannot excuse an absence of criminal investigations.
f. Is being politically motivated in making a complaint the same as acting in bad faith?
Proving that a complainant was acting in bad faith requires proving that at the time of making the complaint he was certain the complaint was false. This has not been proven in this case. In fact, the attorney general himself believed that there was a need for investigation into the complaint.
There is no dispute that the complaint was politically motivated. The complainant was a political opponent of the petitioner and his complaint was based on a news item published in a newspaper supporting his political party. None of these motives make his complaint in bad faith if he believed that his allegations were correct. That he did not pursue his complaint later does not in itself prove the complaint was made in bad faith. Numerous complainants do not pursue their complaints beyond a certain point, of which Sri Lanka’s four per cent conviction rate is clear evidence.
g. Is there proof that the making of the complaint and the beginning of the investigation were a conspiracy?
The court judgment in this case does not refer to any evidence of conspiracy between either the complainant and the police, or the inspector general of police and his subordinate, the deputy inspector general, the first and second respondents. The judgment only mentions that the two officers acted upon the complaint very quickly, within the same day in fact.
Is such quick investigation not expected in accordance with Sri Lanka’s criminal procedure code? The premise that the police do not often act urgently cannot by itself prove bad faith in this instance. The Supreme Court has also dealt with this case quite speedily compared to other pending fundamental rights cases: it is not uncommon for fundamental rights application to go on for several years; some are pending even after six years. Would it be fair to infer any motive, let alone bad faith on this basis? Rather, the Supreme Court should be lauded for its speedy disposal of the case and urged to follow the same sense of urgency in other fundamental rights applications. This case proves that the delay in hearing fundamental rights cases is not due to the excessive workload of the court.
h. With the Supreme Court ruling that a state officer has acted in bad faith, should he continue to hold office?
The Supreme Court of Sri Lanka, the country’s highest court has found the inspector general to have violated the rights of then prime minister, Mahindra Rajapakse, by pursuing an investigation in bad faith to politically sabotage him. The court has further decreed upon him the highest compensation sum to be paid by an individual officer so far. Under these circumstances, it is not possible for him to hold the confidence of the public or the executive. Furthermore, such an officer cannot hold the respect of the police department of which he is head.
Additionally, the Supreme Court found that the two police respondents had presented fabricated documents to the court. This is one of the most serious offenses that could be committed by any police officer, particularly a senior ranking officer. It immediately undermines their credibility, integrity and professionalism. Previous judgments on fundamental rights cases have also noted the submission of fabricated documents by police. This seems to be a common occurrence in Sri Lanka, as the following comments reveal.
In a case in which I pronounced judgment a few days ago too, I found that the B.C.I.B. had been altered, and therefore it appears that, that was not an isolated instance. Thus, the police force appears to be full of such errant officers. The question is what is the 5th Respondent Inspector General of Police doing about it? In my view, it is unsafe for a Court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original. It is a lamentable fact that the police who are supposed to protect the ordinary citizens of this country have become violators of the law. We may ask with Juvenal, quis custodiet ipsos custodies? Who is to guard the guards themselves? [SC (FR) Application No. 343/99 – Case of Kemasiri Kumara Caldera]
i. The Sri Lankan government has suggested that the 17th Amendment should be modified to allow for the inspector general of police to become a member of the National Police Commission. How will this case affect such a decision?
One of the main objections to the now defunct National Police Commission, as made by government officials including ministers, was that the inspector general was not a member. Now that the Supreme Court has held that the inspector general acted in bad faith with political motives, this point of view must be reviewed. The very purpose of the National Police Commission is to have independent persons to supervise the policing system and ensure it is not used as a political tool. Those who advocated the inclusion of the inspector general within the Commission need now to candidly express their position on this issue.
This case raises various other issues of legal and constitutional concern, which should be taken up for study and discussion within the country.
