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| Sunday, 23 March 2003 |
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Court awards compensation and costs by Sarath Malalasekera "Democracy requires not merely that dissent be tolerated, but that it be encouraged, and that obligation of Executive is expressly recognised by Article 14 (d), so that the Police too must respect, secure and advance the right to dissent for as cautioned in WEST VIRGINIA STATE BOARD of EDUCATION vs BARNETT, "those who begin coercive elimination of dissent soon find themselves exterminating dissenters," observed Justice Mark Fernando delivering a judgment in a fundamental right case filed by Attorney at Law Sujeewa Arjuna Senasinghe. The Supreme Court recently awarded Rs. 235,000 as compensation and costs on a Police assault to Attorney at Law Sujeewa Arjuna Senasinghe on the day of the Jana Bala Meheyuma on July 2001 at Nugegoda police division. The Bench comprised Justice Mark Fernando, Justice D.P.S. Gunasekera and Justice C. V. Wigneswaran. Justice Mark Fernando in his judgment, the other two judges agreeing, said that "As I observed ten years ago, stifling the peaceful expression of legitimate dissent today, can only result inexorably in catastrophic explosion of violence some other day." The petitioner, Attorney at Law, in a fundamental rights application cited Senior SP Gamini Karunatilleke, DIG Jayantha Wickremaratne, then IGP and the Attorney General as respondents. The petitioner stated that on July 19, 2001 the Police had acted in violation of his fundamental rights at Nugegoda. The police had caused him body injuries and also harassed him by taking him into custody. On the day of the incident six mass protest rallies had ben organised by the Alliance for the protection of democracy. There was public agitation against the PA Government to reconvene Parliament (then prorogued) to uphold democracy and against the referendum. The Judgement stated that by preventing the petitioner from returning to his car the first respondent infringed his freedom of movement under Article 14 (1) (h), that by causing his subordinates to open fire on, and to injure, the petitioner, the first respondent subjected him to cruel and inhuman treatment inviolation of Article 11, and that by ordering the petitioner's arrest, the first respondent infringed his fundamental right under Article 13 (1). 'Even if I were to assume both that the protest march was unlawful, and that the petitioner was a willing participant, yet in the circumstances the use of firearms was unjustified, unreasonable, excessive and in violation of the department orders.' the judgement added. As for compensation, the infringement of Article 11 was particularly grave and reprehensible because the first respondent not only acted with high-handed disregard for the Department Orders but displayed a callous indifference to human suffering, while suppressing a democratic protest, the judgement stated. Justice Fernando in his lengthy judgement said "I therefore award the petitioner compensation in a sum of Rs. 200,000 for the infringement of Article 11 and in a sum of Rs.10,000 for the infringement of Articles 13 (1) and 14 (1) (h), together with costs in a sum of Rs. 25,000, payable on or before May 31, 2003. While the infringements were the consequence of improper governmental decisions for which the first respondent was not responsible, he nevertheless acted in bad faith, and in excess and abuse of his powers. 'I therefore order the first respondent personally to pay a sum of Rs. 20,000 and the State to pay the balance. The Court also directed the Supreme Court Registrar Bandula Atapattu to forward a copy of this judgement to the National Police Commission. President's Counsel Ikram Mohamed with S. Jayawardena, F. Cassim and A. M. Faiz instructed by Messrs Paul Ratnayake appeared for the petitioner. State Counsel P. Ranasinghe appeared for the IGP and the Attorney General. Manohara de Silva appeared for the first respondent. |
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