Focus on Rights

Daring to be a good samaritan
When should a Sri Lankan dare to be a good Samaritan? Or, in the alternative, is this something that should be avoided at all costs, given the perils that such an intervention may expose oneself to? These are questions that have become very pertinent to us, living as we do in a society where ordinary rules of decency and civilised behaviour have forsaken us with a vengeance.

When the Supreme Court ruled recently on the fundamental rights plea of a fifty five year old senior lawyer who had intervened when his neighbour's son had been taken away by police officers for involvement in a fatal accident and had thereafter himself, been assaulted, humiliated and detained by police officers, several interesting facets of this dilemma that confronts ordinary Sri Lankans, emerge for discussion.

In the first instance, the incident illustrates very well, the summary manner in which police officers now proceed to exercise their powers. In this case, (see Wagaachige Dayaratne vs IGP and Others, SC Minutes of 17.5.2004, judgement of Wigneswaran J. with Yapa J. and J.A.N. de Silva J. agreeing), the lawyer concerned had come out of his house and heard his neighbour's son being told by two police officers that they needed to take him away for questioning. This was later disclosed to be in reference to an incident where a police officer had been fatally run over. At that point, the lawyer had advised the boy to surrender to the police.

When the latter was taken away, driving his own car, accompanied by the two policeman, the lawyer had, on the pleas of his neighbour's wife, followed behind in his car. However, on the way to the police station, the car driven by the boy was stopped near Pedris Park on Havelock Road and the lawyer had seen the boy being dragged out of the care and kicked by an officer.

When the lawyer also stopped his car and got out, pleading that the boy should not be assaulted but taken to the police station, he was abused in obscene language. Thereafter, many other police officers coming on to the scene surrounded the lawyer and assaulted him. When he tried to escape, he had stopped when he heard someone shouting 'shoot him'. He was then further assaulted, dragged to the police jeep and taken to the police station and detained there until his release.

The issue before the Court in this instance was not the fact of the assault and detention which was admitted by the Inspector General of Police but the identification of the specific police officers who were responsible for the attack on the lawyer and his later arrest and detention. These were not the police officers who had initially taken the boy away. Affirming the violation of the rights of the lawyer to freedom against torture and degrading treatment, equality under the law and freedom from arbitrary arrest and detention had been violated, the Court awarded compensation and costs in a sum of Rs 500,000/=.

Piquantly, the violation of the right to equal treatment is found in the fact that the police had failed to give equal treatment of the law to the lawyer, (who was only acting as a Good Samaritan and kindly neighbour), presumably because a police officer had been knocked down in the accident and the former had asked the police to show restraint in their actions.

However, in the absence of specific identification of the culpable police officers, the Court imposes responsibility on the State with regard to the rights violation and ultimately therefore, payment of the compensation. This is, or course, a re-iteration of an oft accepted principle of the Court, most notably in Amal Sudath Silva vs Kodithuwakku, Inspector of Police and Others (1987, 2 Sri LR 119) where Atukorale J. ruled that, if a citizen has established torture and cruel treatment by the police. whoever they be, the State will be held responsible despite doubts about the exact identification of the particular police officers who are directly culpable. The police force is an organ of the State. The State is liable to pay compensation to the victim.

The stand taken by the Court in all these instances of holding the State liable for the acts of its officers and consequently, the payment of considerable sums of compensation, has given rise to public discussion as to the merits and demerits of tax payers in this country being called upon to bear the financial burden, as it were, of such awards.

This is a concern, which has obviously preoccupied the mind of Court when it takes cognizance of the fact that, ordering the State to pay compensation for violation of rights by individual police officers will drain public funds while 'guilty officers get away with impunity."

In other instances, we have seen the Court withdrawing, in fact, from the granting of high awards as evidenced for example, in another recent case again involving a police assault on a lawyer (Adhikary and Adhikary vs. Amarasinghe and Others S.C. (FR) No. 251/2002, S.C. Minutes of 14th February, 2003) where Shiranee Bandaranayake J, ordered Rs. 20,000/- as compensation and Rs. 5,000/- as costs to be paid by the State.

On the other hand, where particular police officers are identified as responsible for rights violations, these officers have been ordered to personally pay the compensation. In Sriyani Silva vs. O.I.C., Paiyagala Police, S.C. (FR) No. 471/2000, S.C. Minutes of 8th August, 2003), an alleged army deserter arrested by the police, died whilst in remand custody. The Court, (in the judgement of Mark Fernando J.), gave relief to his widow who came before court on the basis that she and her minor child was entitled to the compensation that the deceased would have received, but for his death. In this case, a sum of Rs. 700,000/- was ordered to be paid by the State and Rs. 50,000/- each by the two errant police officers personally.

If one generally evaluates these cases, it is evident that the issue here, is most emphatically, not the high awards of compensation that the conscience of the Court is, in a sense, moved to award, considering the most barbaric forms of behaviour that our law enforcement officers engage in at times.

To deny the above is to accede in the argument that officers of the State will be free to engage in the most despicable actions so long as their individual identity is concealed while their victims have to go through the travails of litigation and obtain paltry amounts of money in situations where often, even the most massive sums of compensation cannot redress the pain that they have suffered. Sriyani Silva's case is not the only recent example in this regard.

Take, for instance the case of Gerald Perera, an ordinary worker who was taken into custody on the mistaken belief that he was "Gerad" a known criminal and then assaulted to the extent that he suffered renal failure. Here too, the Court granted the sum of Rs 800,000 as compensation and costs in addition to the cost of the medical treatment that he had to undergo but would that have been sufficient for the health problems that will probably plague him for the rest of his life, let alone his psychological traumas?

It is high time therefore that the discussions moved away from the question as to the quantum of compensation that ought to be awarded by the Court in these cases, (an absurd question in any event) to more significant issues of impunity. We have the Court in Dayaratne's case this month, calling upon the National Police Commission and the Police Department, to take stringent steps in this regard.

This is one of the legion cases in which such directions have been issued. Why is it that even where police officers, (junior as well as senior), have been identified as personally responsible, we have seen no internal action against them or a single instance of successful prosecution in courts of law? The deterrent effect of such action or prosecution would be incalculable. We have yet to see whether these directions will be hearkened to.

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