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Safe house rights case order reserved
Supreme Court raises questions on police officer’s powers to arrest under Penal Code
By Laila Nasry
The Supreme Court questioning as to whether a police officer has the power to go anywhere and investigate any offence, reserved the judgment in the Athurugiriya safehouse case, a fundamental rights application filed by an Army officer alleging he, together with four other soldiers, had been arrested and tortured while in custody.
The bench comprised Chief Justice Sarath N. Silva and Justices Shirani Bandaranayake and P. Edussuriya.

President's Counsel Shibly Aziz, who appeared for the 1st respondent, Superintendent K. Udugampola, told court that his client went to the Millennium City housing scheme in search of a suspect in another case when he came across the house with arms and ammunition.

Acting under reasonable suspicion that the premises was not a safehouse and was used for illegal activity, SP Udugampola had proceeded to arrest the petitioners on the charge of possession of illegal weapons, Mr. Aziz said.

He said there was nothing to indicate that it was an army safehouse and claimed that his client had been accompanied to the location by an army officer who had not objected to the search of the premises. Mr. Aziz conceded that there remained some discrepancies and deficiencies as to how his client came to be at Athurugiriya but pointed out that his client as a law enforcement officer could not shut his eyes to what he discovered and thus took immediate action.

The Chief Justice stated that if the primary purpose of Mr. Udugampola was to search for Chanuka Ratwatte, a suspect in the Udatalawinna massacre case, then the question arose as to whether he could effect the arrest of the Army officers.

Court stated that what Mr. Udugampola should have done was to report the matter to the Athurugiriya police to take necessary action as per the Criminal Procedure Code. Instead of deploying his officers and surrounding the place and waiting for the Athurugiriya police to take over, Mr. Udugampola acted arbitrarily in arresting the petitioners and taking them to Kandy.

Mr. Aziz said his client might have over-reacted or over-reached himself in carrying out his duties and did not act as the Criminal Procedure dictated. However, as a police officer he had still acted within his jurisdiction.

Kolitha Dharmawardene appearing on behalf of the 2nd and 3rd respondents -- Sub Inspector of the Kandy Police Division, R.A.C. Dharmaratne and Head quarters Inspector M.A.E Mahendra -- said that his clients were not involved in the breach of the petitioner's fundamental rights.

Mr. Dharmawardene said the only allegation against Sub Inspector Dharmaratne was merely the fact that he had accompanied SP Udugampola to Athurugiriya and he was not instrumental in the arrest of the petitioners.

However, S.L. Gunasekara appearing on behalf of the petitioners countered this argument. Mr. Gunasekera said that even if five police officers had joined the mission and one police officer takes the lead, all are equally responsible for the act because they all had the common intention.

Mr. Gunasekara brought it to the notice of courts that it was Sub Inspector Dharmaratne who had signed the false detention order, which kept his clients in custody and therefore was not merely an onlooker but had acted in concert.

Mr. Gunasekara said the 3rd respondent, Inspector Mahendran, was liable for the torture and the degrading treatment brought to bear on the petitioners, as he was the officer in charge of the police station.

Questioned on the allegation of torture, Mr. Gunasekara explained the degrading treatment meted out to the petitioners while in custody. He said they had been kept in a nine by six foot cell designed for two people, with depleted toilet facilities and lack of ventilation with the additional burden of two drunkards as company who had vomited in the cell.

"These are Army officers. You can't just treat them like dirt. Human beings must be treated like human beings," Mr. Gunasekera said. Mr. Dharmawardene took up the position that that particular cell was the only one available for detention and that his client was merely the headquarters inspector and repairing of toilets was out of his control.

Court granted a date to the Counsel for the respondent Mr. Shibly Aziz to file written submissions by August 29 in the Chambers. The Counsel for the petitioner Mr. S.L. Gunasekera made submission to file a reply by September 15.

Cell phones in cells: Prisons chief cracks whip
By Hisham Hilaly
Close Circuit TV cameras will soon be installed in prisons, to curb illegal activities within the prisons, Prisons Chief Rumy Marzook said. "Some prisoners even use cell phones within the premises to plan murders and bank robberies and threaten witnesses. Sometimes when I make surprise visits in the early hours of the morning, I hear mobile phones ringing," he said.

Mr. Marzook said he had asked the Interior Minister to equip the prisons with hi-tech cell phone jamming devices. He said Welikada Prison would be the first to be equipped with CCTV cameras and hi-tech devices.

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