Friday, November 27, 2020

Was it assault and death and an infringement of rights, or a simple case of epilepsy?

In a case of possible police brutality, where a man had been arrested and had died in the police station the next day, the relatives of the deceased sought redress in a fundamental rights case filed in the Supreme Court.

If it was indeed a case of police brutality, why was it that there was no recourse to the aggrieved parties — including the mother who had lost her son — other than a FR case in the Apex Court of the land?

Couldn’t they have opened up an investigation based on a criminal complaint against the police officers concerned?

Those circumstances are unknown to this writer. If indeed police brutality was involved, surely if there was enough publicity, Law Enforcement would have been forced to investigate the circumstances and open a criminal inquiry?

But in the absence of such recourse, the relatives of the deceased were forced to file a Fundamental Rights application where the most is that they could win damages and have a declaration made that their fundamental rights have been infringed.

The facts of the case are rather bizarre, and the reader may be able to make up his or her own mind about what may have happened.

The deceased won a lottery and was however unable to claim the lottery prize because the seller of the lottery was contesting the fact that the deceased had actually won the lottery.

The lottery seller stopped a police posse on patrol and pleaded that his own son was waiting to assault him. His son was employed by the winner of the lottery.

The Court granted Leave to Proceed on September 3, 2003 to the petitioners in respect of the alleged infringements of Articles 11, 13 (1), 13 (2), 13 (4) and 17 of the Constitution by the first to third Respondents and several other Police Officers of the Moragahahena Police Station.

That means in short that the petitioners were coming to Court alleging that there was cruel inhuman and degrading treatment and unlawful arrest of their son, which violated his fundamental rights. After all, it’s not they who were arrested unlawfully as they allege, or treated cruelly — it’s their son who is now deceased that was the victim.

The petitioners were of course granted leave to proceed.

The crux of the case is that the petitioners alleged that the deceased was assaulted when the police arrested him, which is why he bled from the nose.

This fact was borne out both in the police inquiry notes pertaining to the statement given by one Piyawathi, an aunt of the deceased, and her affidavit.

If that was the case, shouldn’t it have been obvious that the deceased had been assaulted causing his death, after he had begun bleeding from the nose in the police station cell and was taken to hospital?

The snag was that in the inquiry notes it transpired that the deceased’s friend, one Chanaka, had said that the deceased was in a jovial mood when police came to Piyawathi’s residence and that he had started bleeding from the nose and had been taken outside and given an iron rod because he was epileptic.

In the judgement Justice Shirani Thilakawardena wrote, “In the Affidavit, Chanaka states that he saw the deceased being assaulted both inside and outside Piyawathi’s house and the First Respondent in particular assaulted the deceased on the back of his head. In the jeep too the deceased had been severely assaulted and when he shouted not to assault, the deceased he had been slapped by the Police. Thereafter next morning the deceased had complained that he felt vomitish and he was bleeding from the nose. Later on Police Officer Malalasekara had directed Chanaka to give an iron rod into the hands of the deceased.”

The judgement further notes, “It is important to note that the Petitioners, Piyawathi and Chanaka deny that the deceased had been suffering from epilepsy. However Nancy Nona (Chanaka’s grandmother) had told the Police that the deceased was suffering from epilepsy.

The Policemen who were at the Police Station and the other detainees in the cell with the deceased and Chanaka have stated that the deceased’s fall in the cell was due to epilepsy. The Respondents state that the signs of bleeding from the nose and the way the deceased was struggling at the time, may have given them the impression that it was an attack of epilepsy.”

Though this is certainly not the classic landmark case that contains legal dicta for the ages, the fact remains that it is a rather intriguing case. Did the deceased suffer an epileptic fit on the very day that he was arrested by the police, and succumb as a result?

Improbable as it may seem, the judgement notes that the fellow detainees at the police cell had all observed that the deceased had an epileptic attack.

The police records also seem to indicate that the deceased had an epileptic attack in the police cell.

But, if all this is not complex enough, it gets even more intriguing because the State alleged that the petitioner was of unsound mind, and therefore her affidavit could not be trusted.

The pertinent fact that may not occur to a layman is that fundamental rights cases are decided upon the affidavits of the deponents. It’s one set of affidavits against another and if the contending affidavits of the petitioner and the respondent are contradictory, it follows that at least one party is lying under oath.

The judgement was not in favour of the petitioners. The police officers’s (respondent’s) position was corroborated by the police, and therefore the case was dismissed.

Source: dailynews.lk

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