S.C. (FR) Application No. 471/2000 - Case of Kotabadu Durage Sriyani Silva
S. C. (F.R.). Application No. 471/2000
In the Supreme Court of the Democratic Socialist Republic of Sri Lanka
Colombo 12.
In the matter of an Application under Article 126 of the Constitution.
Petitioner:
Kotabadu Durage Sriyani Silva, Pettawatta, Gomarankada, Payagala.
(Wife of Mulle Kandage Lasantha Jagath Kumara - now Deceased)
Vs.
Respondents:
1. Chanaka Iddamalgoda, Officer-in-Charge, Police Station, Payagala.
2. Inspector Prasanna Wickramarathne, Officer In Charge (Crimes), Police Station, Payagala.
3. Ananda, Police Station, Payagala.
4. Chadrasiri, Police Constable (21568), Police Station, Payagala.
5. Commissioner General of Prisons, Department of Prisons, Baseline Road, Colombo 08.
6. Inspector general of Police, Police Headquarters, Colombo 01.
7. The Attorney-General, Attorney-General's Department, Colombo 12.
BEFORE:
Sarath N. Silva, CJ.
Shirani A. bandaranyake , J.
Edussuriya J.
COUNSEL:
J.C.Weliamuna for the Petitioner
Manohara De Silva for the 1st Respondent
Saliya Peiris for the 2nd and 3rd Respondents
Ms. Viveka Siriwardena De Silva, SC for the 5th -7th Respondents
ARGUED ON:
29.08.2001, 29.11.2001 and 25.03.2002
WRITTEN SUBMISSIONS TENDERED ON :
For the Petitioner: 29.04.2002
For the 1st Respondent: 06.06.2002
For the 2nd and 3rd Respondents: 20.05.2002
For the 7th Respondent: 10.06.2002
DECIDED ON:
10.11.2002
(Majority Decision)
Shirani A. Bandaranayake, J.
This is an application filed by the wife of a deceased detainee, praying for a declaration that the deceased husband's fundamental rights guaranteed by Articles 11, 13(1) and 13(2) of the Constitution were violated, and claiming for a sum of Rupees one million as compensation from the 1st to 4th Respondents and the State.
The initial petition was filed on 18.07.2000 by an Attorney-at-Law of the Legal Aid Commission on behalf of the petitioner and was listed for support for leave to proceed on 23.08.2000. On that day, learned counsel for the petitioner who supported the application moved to amend the caption to read as on behalf of the wife as the legal representative of the deceased. Learned counsel for the petitioner submitted that the prayer to obtain compensation was for the deceased's wife and for the minor child of 2 ½ years of age. The Court allowed to amend the caption and the amended petition was dated 30.08.2000, field on 25.09.2000 was supported on 23.10.2000. On that day, this court granted leave to proceed for the alleged infringement of Articles 11, 13(2) and 17 of the Constitution.
When this matter was taken up foe hearing, two preliminary objections were raised on behalf of the respondents, viz.,
i. the petitioner has no locus standi to make this application; and
ii. the petitioner's application is out of time.
Learned Counsel for the respondents submitted that although the petitioner claims that she is entitled to continue with his application the question of continuation does not arise in this case, as the detainee died before making any application alleging that the respondents violated his fundamental rights. The question before us therefore is, whether the wife or a third party of a deceased person has a right to institute proceedings in this court in terms of the provisions of the constitution, seeking relief for the alleged infringement of a deceased person's fundamental rights.
Fundamental rights are enshrined in Chapter III of the Constitution, which contains 8 Articles, viz., Articles 10 to 17 that deal with different freedoms and rights. Article 17, which is an enabling as well as a governing provision as far as the remedy for an infringement of a fundamental right is concerned, read as follows:
" 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 fundamental right to which such person is entitled to under the provisions of this Chapter".
This Article contains a clear enunciation of the entitlement of any person to apply o the Supreme Court in respect of an alleged infringement or imminent infringement by executive or administrative action. However, the applicability of this provision is subject to the conditions and limitations enshrined in Article 126 of the Constitution. Article 126 of the constitution deals with the fundamental rights jurisdiction of the courts and its exercise. Article 126(2), which is directly relevance to the question under review, is in the following terms:
"Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he nay himself or by an Attorney-at-law on his behalf within one month thereof in accordance with such rules of court as may be in force apply to the supreme court by was of petition in writing addressed to the supreme court praying for relief or redress in respect f such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the supreme court, which leave may be granted or refused, as the case may be, by not less than two judges".
Learned counsel for the respondent relied heavily on Somawathie Vs. Weerasinghe and others [(1990) 2 Sri LR 12] where an application was field by the petition on behalf of her husband for violation Articles 11 and 13 of the Constitution. In that case majority held that Article 126(2) of the Constitution when construed according to the ordinary, grammatical, natural and plain meaning of its language give a right of complaint to the person affected or to his Attorney-at-Law and to no other person.
I am of the view that Somawathie Vs. Weerasinghe (supra) on which learned counsel for the respondents placed heavy reliance, can be distinguished, in relation to the facts of this case.
In Somawathie's case (supra) application was made by the virtual complainant alleging the infringement of her husband's fundamental rights guaranteed by Articles 11, 13(1), 13(2), 13(5) and 13(6) of the Constitution. At the time the said application was filed he was remand prison Mahara. The virtual complainant was named as the 4th Respondent in that application.
The evidence before us in the present case, however, is different.
The deceased detainee was taken into custody on 12.06.2000, and was produced before the Magistrate on 17.06.2000 on which occasion he was handed over to the Remand Prison, Kalutara. The Petitioner averred that on 18.06.2000, the mother and the sister of the deceased detainee visited the prison but they were not allowed to meet him. On 19.06.2000 the uncle of the deceased detainee who visited the Prison was informed that the detainee was transferred to the Magazine Remand Prison on 18.06.2000. On 21.06.2000 the Payagala Police informed the Petitioner that the detainee had died on the previous night at the Magazine Remand Prison.
Several affidavits were filed along with the petition which indicated that the detainee was severely assaulted during the time was he was kept in police custody. I do not wish to venture into the details of the allegation on assault as we are only dealing with the preliminary objections raised by the respondents at this juncture. However, I am of the view that it is necessary to refer to the post mortem report which was called by this Court at the time leave to proceed was granted on this application. This report refers to 20 injuries, which were identified on the Head, Trunk, Upper limbs, and Lower limbs of the deceased and the AJMO had given the cause of death as "Acute renal failure due to muscular cutaneous injuries following blunt trauma". The detainee, an averagely build male, was 23 years of age at the time of his death.
It is to be noted that on 17.06.2000, at the time the detainee was brought to the Remand Prison, Kalutara, he made a statement to one of the Prison Officials informing that he was assaulted while he was kept at the Payagala Police Station P6). Again on 18.06.2000 at 2.50 p.m. The detainee had made a statement informing that about 10 officers including the 2nd and 3rd respondents assaulted him at the Police Station.
Learned Counsel for the 5th to 7th respondents concluded that factually the instant case could be distinguished from Somawathie's case (supra). Her position was that Article 126 (2) of the Constitution was given a plain grammatical meaning in Somawathie's case and the factual consideration should not play a role in the interpretation of the plain and ordinary words of the provision.
Considering the crux of the arguments raised by the learned counsel for the respondents according to the provisions of the Constitution a person other than whose rights are infringed can not make an application to vindicate the rights of another person, even if that other person on whose behalf the application is made is not among the living. Therefore a relative of a person whose death was caused by torture would not be able to obtain redress through the fundamental rights jurisdiction enshrined in our Constitution. I fine it difficult to agree with these submissions made by the learned counsel for the respondents for the following reasons.
It is to be noted that the sole object in the statutory interpretation is to arrive at the intention of the legislature. Donaldson, M.R. in Corocraft Vs. Pan-Am ([1969] QB 616 at pg.638) said that,
"the duty of the Court is to ascertain and give affect to the will of Parliament as expressed in its enactments'.
In Lyons Vs. Tucker ( 1880 6 QBD 660 at pg 664) Grove, J. stated that the golden rule of plain literal and grammatical construction has to be read subject to the qualification that the language of statutes is not always that which a grammarian would use.
Learned Counsel for the petitioner contended that Article 126(1) read with Article 17 of the Constitution provides a right for a victim to seek relief from this Court for an infringement or imminent infringement of a fundamental right. Learned Counsel drew our attention to Bindra, who had stated that,
"If a statute which creates a right does not prescribe a remedy for the party aggrieved by the violation of such a right, a remedy will be implied and the party aggrieved may have relief, in an appropriate action founded upon the statute. The creation of a new duty or obligation or the prohibition of an act formally lawful carries with it, by implication a corresponding remedy to assure its observance." (Bindra, Interpretation of Statutes, 7th Ed. At pp.729-730)
This concept, viz., a right must have a remedy, is based on the principle which is accepted and recognized by the maxim ubi jus ibi idem remedium- there is no right without a remedy". Thus one cannot think of a right without a remedy as the right or a person and the remedy based on the said right would be reciprocal.
Considering the constitutional provisions, Chapter III of our Constitution which deals with the fundamental rights, guarantees a person, inter alia, freedom from torture and from arbitrary arrest and detention (Articles 11, 13(1) and 13(2) of the Constitution). Consequently, the deceased detainee, who was arrested, detained and allegedly tortured and who met with his death subsequently, had acquired under the Constitution to seek redress from this court for the alleged violation of his fundamental rights. It could never be contended that the right ceased and would become ineffective due to the intervention of the death of the person, especially in circumstances where the death in itself is consequence of injuries that constitutes the infringement. If such an interpretation is not given it would result in a preposterous situation in which a person who is tortured and survives could vindicate his rights in the proceedings before this court, but of the torture is so intensive that it results in death, the right can not be vindicated in the proceedings before this court. In my view a strict literal construction should not be resorted to where it produce such an absurd result. Law, in my view, should be interpreted to give effect to the right and to suppress the mischief. Hence, when there is a causal link between the death of a person and the process which constitutes the infringement of such person's fundamental rights any one having a legitimate interest could prosecute that right in a proceeding instituted in terms of Article 126(2) of the Constitution. There would be no objection in limine to the wife of the deceased instituting proceedings in the circumstances of this case.
The second objection taken by the 7th respondent was that this petition was field after the mandatory one-month period provided by Article 126(2) of the Constitution.
As pointed out earlier the deceased detainee was taken into custody on 12.06.2000. On 21.06.2000, the Payagala police informed the deceased detainee's father that the deceased detainee died on the previous night. Throughout this period, the deceased detainee was in the custody of the police and the remand. The legal Aid Commission filed the initial petition on 18.07.2000. The application on behalf of the deceased detainee was therefore filed, within time, as provided by Article 126(2) of the Constitution.
For the reasons aforesaid, the preliminary objections taken by the respondents are overruled. Registrar to take steps to list this application for hearing. In all the circumstances of this case there will be no costs.
JUDGE OF THE SUPREME COURT
I agree.
Sarath N Silva, C.J.
(Minority decision)
Edussuriya, J.
At the date of the filing of the original application under Article 126 of the Constitution, 18/07/2002, the person on behalf of whom it was filed (by an Attorney-at-Law) was already dead (died on 20/06/2000) and as such there was no application which the court could have entered, and therefore it should necessarily have been rejected.
That application of 18/07/2000 should therefore be rejected nunc pro tunc. In any event the petitioner to that application cannot proceed with it. In the circumstances the so called amendment dated 23/08/2000 in which an entirely different person (widow) is the Petitioner becomes a new application which is time barred according to the very Article (Article 126) under which the new Petitioner seeks redress since the new Petitioner's husband had died on 20th June 2000. Then again there cannot be an amendment to an application to which the court cannot entertain.
It is settled law, that, by way of an amendment party should not be allowed to overcome a time bar prescription.
Further, according to Counsel Weliamuna's statement to court on 23/08/2000, (journal entry of 23/08/2000) the Attorney-At-Law had received instructions from the widow to institute the proceedings on her behalf as the legal representative of the deceased. If that be so it is a fresh application that should be presented to court by new petitioner as legal representative, of the deceased.
In the circumstances the order of this court allowing the present petition to be filed as an amendment was in my view made per incuriam for the reasons stated above.
Further, according to paragraph 36 of the so called amended petition, the present petitioner's position is that the rights guaranteed under Articles 11,13 and 17 of the Constitution to the deceased, devolved on the present Petitioner (widow) on the death of her husband and she the present Petitioner therefore is entitled to continue with the first application. Once again I repeat that the first application one which the court could not entertain in as much as the person on whose behalf it had been presented was dead by the date of the institution, and therefore there is no question of continuing with that application.
Therefore the so called amended petition now before court is a new petition field on 25th September 2000 though dated 30th August 2000. ( vide the date stamped on the motion accompanying the so called amended petition) over three months after the death of the person whose fundamental rights are allegedly been infringed.
The Attorney-at-Law for the present Petitioner in fact field an entirely new petition on 25th September 2000 under the guise of an amendment in an endeavour to overcome the time bar.
For the above mentioned reasons I uphold the preliminary objection raised by the learned State Counsel regarding the time bar, in respect of the widow's application and, consequently dismiss this application.
The next question for decision is whether the widow of person whose fundamental rights had been infringed is entitled to make or continue with an application for redress under Article 126(2) on the basis of devolution on the widow, of the right acquired prior to death by the deceased person whose fundamental rights had been infringed to seek redress.
Article 126(2) reads as follows:
"Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he nay himself or by an Attorney-at-law on his behalf within one month thereof in accordance with such rules of court as may be in force apply to the supreme court by was of petition in writing addressed to the supreme court praying for relief or redress in respect f such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the supreme court, which leave may be granted or refused, as the case may be, by not less than two judges'.
On a plain reading of Article 126(2) it is clear that where a person's fundamental rights have been infringed, that person by himself or by an Attorney-at-Law on his behalf can seek redress from the Supreme Court.
The language contained in article 126(2) is unambiguous as it stands and in my view excludes persons other than those named therein from seeking redress. Article 126(2) does not set out the heirs of the dependants of the person whose fundamental rights have been infringed, as persons who could seek redress.
Counsel for the present Petitioner has cited the following passage from Bindra Interpretation of Statutes in this connection. "If a statute which creates a right does not prescribe a remedy for the party aggrieved by the violation of such a right, a remedy will be implied and the party aggrieved may have relief, in an appropriate action founded upon the statute. The creation of a new duty or obligation or the prohibition of an act formally lawful carries with it, by implication a corresponding remedy to assure its observance".
There is nothing in the Constitution which implies that the widow of a person whose fundamental rights were infringement has a right to relief or redress under Article 126(2). Besides Article 126 (2) provides a remedy to the person whose fundamental rights have been infringed. Therefore this passage in Bindra of Interpretation of Statutes -7th Edition Page 729-730 has no application to the matter presently before us.
In Somawathie vs. Weerasinghe and others (1990) 2 SLR 121 wherein Amerasinghe J. stated that "…where the words are themselves in precise and unambiguous and there is no absurdity, repugnance or inconsistency with the rest of the constitution the words themselves do best declare the intention. No more can be necessary than to expound those words ion their plain, natural, ordinary, grammatical and literal sense", and according to the majority decision a wife has no locus standi in a case where her husband's fundamental rights had been violated.
In that case the wife of the person whose rights had allegedly been violated presented an application complaining of the infringement of the fundamental rights of her husband and according to the majority decision, Article 126(2) only permitted those persons named therein to make such application and accordingly held that the wife had no locus standi to maintain the application.
Kulatunga J. taking a dissenting view on the question of locus standi of the wife stated that in the circumstances of grave stress or incapacity particularly where torture resulting in personal injury is alleged to have been committed, next of kin such as a parent or spouse may be the only people able to apply to his court in the absence of an attorney-at-law who is prepared to act as Petitioner; and if such application is also supported by an affidavit of the detenu either accompanying the petition or the field subsequently which could make it possible to regard it as being virtually the application of the detenu himself, this court may entertain such application notwithstanding the failure to effect literal compliance with the requirements of Article 126(2).
In hits connection I may also refer to Fundamental Rights In Sri Lanka (A Commentary) 1993 where Justice Sharvananda has stated "that the injured person alone has locus standi to complain of the infringement of his fundamental rights" (pages 408 and 410).
Bindra on Interpretation of Statutes in Chapter XI states that it is rule of construction of statutes that in the first instance the grammatical sense of the words is to be adhered to unless there be some strong and obvious reason to the contrary and that where there is no ambiguity inn the words there is no room for construction, and the necessity for interpretation does not arise where the language is plain. Further that if the language is plain consequences whatever they may be should be disregarded so that even if the pain meaning of the language results in an absurdity the plain meaning must be given effect to. That if the result of the given effect to the plain meaning is unfortunate it is for the legislature to take action to remedy the defects of the law as it is enacted and it is not for the courts to usurp the functions of the legislature and by staining the meaning, in goring the clear terms of law, seek to evade the consequences, which in the opinion of the court may prove ill fraught. Barru V. Lachhman, 111 PR 1913 at page 417. See also Rananjaya Singh V. Baijnath Singh and Others A.I.R. 1954 S.C. 749, 752. The effect of the words is a question of law. Chatenay V. Brazilian Submarine Telegraph Co., (1981) 1 QB 79,85 per Limdley, L.J. I may mention that well-established rules of interpretation can not be disregarded to give effect to reasonableness.
At page 438 Bindra states "Where the meaning of the words is plain it is not the duty of the court s to busy themselves with the supposed intention. A court can not stretch the language of a statutory provision to bring it accord with the supposed legislative intention underlying it unless the words are susceptible of carrying out the intention. (page 438)
In Abel Vs. Lee (1871) L.R 6 p 365 at 371 Willies J. stated that "I utterly reopudaite the notion that is competent to a judge to modify the language of an Act of Parliament in order to bring it in accordance with his views as to what is right and reasonable;".
Further, it as golden rule of interpretation that Courts can not fill in gaps or rectify defects when the words are unambiguous.
In this connection I may also refer to Article 30(1)(b) and Article 30(1)(c) of the Government's Proposals for Constitutional Reforms of October 1997 and the Constitutional of the Republic of Sri Lanka Bill August 2000 which made provision (1) for an aggrieved person who, is unable or incapable of making an application under Article 17 by reason of physical, social or economic disability or other reasonable cause, an application to be made on behalf of such person by a relative or friend of such person if the person aggrieved raises no objection, and (2) also provided fro an application to be made in respect of any person or persons affected in the public interest, by any person or by any incorporated or unincorporated body of persons acting bona fide. So event at that it was not sought to widen the scope of Article 126(2) to enable a widow or heirs of a deceased person whose fundamental rights had been violated to file an application for redress. It is therefore safe to conclude that the intention of the legislature under Article 126 was to grant relief only to the person whose fundamental rights had been violated.
Article 17 read with Article 126(2) provide a remedy to those whose fundamental rights have been infringed and Article 126(2) categorically states that the person whose fundamental rights have been infringed, himself or by an attorney-at-law on his behalf should make an application for redress. There is nothing therein which even remotely suggests that a wow has a right or that such right devolves on a widow or heirs of a person whose fundamental rights have been infringed.
In the circumstances it would be preposterous on out part to uphold that the legislature intended that the right to apply for redress should pas to the heirs or that the heirs of a deceased whose fundamental rights had been infringed were entitled to apply for relief under Article 126(2).
In passing I may add that the laws of this country adequately provide for the widow of the other dependants of a deceased person who met with this death as a result of a wrongful act of another to seek compensation based on loss of support or maintenance and such compensation has to be calculated on evidence.
Counsel for the present Petitioner has drawn the attention of the court to the fact than Sri Lank has ratified the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and obliged to grant redress to victims of torture the dependants are entitled to compensation, and as such, Article 126 should be construed accordingly.
The International Convention Against Torture was ratified by Sri Lanka in 1994 whereas the Constitution was promulgated in 1978. It certainly can not be said that one can read into Article 126(2) of the Constitution of 1978 a Legislative intention in 1978, to grant relief to a widow of a person whose fundamental rights have been infringed because Sri Lanka has ratified the International Convention Against Torture sixteen years later in 1994, containing a provision to grant relief to dependants of victims of torture in the event the death of the victim as a result of torture.
By this application the widow of the person whose fundamental rights were allegedly infringed has applied for compensation on the basis that "the rights guaranteed under Articles 11, 13 and 17 of the Constitution devolved upon the Petition and she is entitled "continue" with this application seeking relief…" (paragraph 36 of the "Amended Petition")
Under Article 17 read with Article 126 of the Constitution, what are the rights of that accrue to a person whose fundamental rights or language rights have been infringed or about to be infringed?
Article 126(2) sets out that where any person alleges that a fundamental right or language right relating to him has been infringed or is about to be infringed he may himself or by an Attorney-at-law on his behalf apply to the supreme court for relief or redress in respect f such infringement.
Therefore the right to relief and the right to apply for relief are vested in the person whose fundamental rights have been infringed and are personal rights which accrue to him and him alone therefore those rights must necessarily die with them. However, where an applicant under Article 126 (2) for relief, dies after the Respondents had joined issue with the applicant, that is after litis contestatio, then the right to relief will pass to the legal representatives, that is to the estate of the deceased.
In Premalal de Silva Vs. Inspector Rodrigo and others (1991) 2 SLR 301, the applicant Premalal de Silva disappeared subsequently and this Court directed compensation to be paid to the legal representatives of the applicant in the event of it being established that the applicant was dead.
In any event, even if the right to relief which accrued survives the death of the person whose fundamental rights were infringed as claimed by the Petitioner's counsel, then it is the legal representative of the deceased representing the estate of the deceased who can claim relief since that right to claim relief (compensation in their existence) that has survived is an asset of the estate of the deceased. In this instance the widow has not field her petition in this court as the legal representative of the deceased (vide caption), although counsel Weliamuna had stated on 23rd August 2000 (vide journal entry 23/08/2000) that he moves to amend the caption to read " on behalf of K.A. Sriyani as the legal representative of M.K.L. Jagath Kumara the deceased", and that reason too the present Petitioner can not maintain this application.
For the above mentioned reasons, I uphold the objection raised by the learned State Counsel that the Petitioner (Widow) has no locus standi to maintain this application.
I therefore dismiss this application. No costs are ordered solely because the Petitioner is a widow.
JUDGE OF THE SUPREME COURT
Note: By majority of two to one, the preliminary objections were overruled and the matter is now fixed for argument on merit.
