The Supreme Court on December 14, 2023, found the present Acting IGP Deshabandu Tennakoon and two of his subordinates guilty of torturing the petitioner for an alleged theft and violating his fundamental rights

The failure to terminate the services of the three police officers, who were found guilty by the Supreme Court of torturing and infringing the fundamental rights of a petitioner, has attracted public criticism against the National Police Commission. The Constitutional Council too has come under severe criticism for endorsing police promotions for individuals whose names have been involved in criminal and human rights violations.

The Supreme Court on December 14, 2023, found the present Acting IGP Deshabandu Tennakoon and two of his subordinates guilty of torturing the petitioner for an alleged theft and violating his fundamental rights at the time the men in uniform were attached to the Nugegoda Police Division in 2010.

Weheragedara Ranjith Sumangala of Kindelpitiya, Millewa, filed a Fundamental Rights Application in the Supreme Court (SC/FR 107/2011) in March 2011, against the then Superintendent of Police, M.W.D. Tennakoone (popularly known as Deshabandu Tennakoon who is also the 5th Respondent), OIC (Emergency Unit) Mirihana IP Bhathiya Jayasinghe (2nd Respondent), Police Officer Bandara (1st Respondent), former Sargent Major Ajith Wanasundera of Padukka (4th Respondent) and a few others in the police department seeking relief in respect of the alleged violation of his fundamental rights. 

The other respondents were, HQI Mirihana, CI Egodawela (3rd Respondent), Mahinda Balsooriya (6th Respondent) and the Attorney General (7th Respondent).
Senior Counsel Viran Corea and a team of lawyers appeared for the Petitioner while Induni Punchihewa appeared for the 5th Respondent and Sandamal Rajapaksa for the 1st, 2nd and 3rd Respondents.

Having found responsible for torturing the petitioner and violating his fundamental rights, the three bench that comprised of Justices S. Thurairaja PC, Kumudini Wickremasinghe and K. Priyantha Fernando delivered the judgement directing the National Police Commission (NPC) and other relevant authorities to take appropriate disciplinary action against Tennakoon and two of his subordinates.

Although the NPC says that a preliminary inquiry will be initiated, a leading legal luminary said it is not necessary to hold preliminary inquiries as the Supreme Court (SC) has already given a judgement faulting the three police officers for torture and FR violations of the petitioner. “It is the paramount duty of the NPC to interdict the 1st, 2nd and 5th respondents and if deemed to hold an inquiry thereafter,” said the legal luminary.

A highly reliable source from the legal fraternity on strict condition of anonymity told this newspaper that by the time the Constitutional Council (CC) met to take the decision –whether or not to endorse Deshabandu Tennakoon as the Acting IGP, President Ranil Wickremasinghe has appointed him to the post.

**** “The procedure is to send the name to the CC by the Executive and once it is endorsed by the CC, the appointment can be made. In this instance, Tennakoon has been appointed on October 29th and subsequently the name has been submitted to the CC on the same day. When the Council met on November 3, 2023, to take a decision on this, three members opposed the decision and the others had to remain silent as the appointment had already been made. It is learnt that the CC has asked reports from the NPC and the Court of Appeal to unearth whether there are pending cases against Tennakoon, to which four reports have been sent by the NPC and two by the Court of Appeal clearing his name,” the sources said.******
Emeritus Professor of Law Savitri Goonesekere speaking to the Daily Mirror, queried as to why the CC, that has the authority either to object or not, regarding the names forwarded by the President for High Posts, endorsed Deshabandu Tennakoon’s name as the Acting IGP when there was a FR case pending against him in the SC.

 “As per the 19th and 21st amendments to the Constitution, the CC should decide on  endorsing the names sent to them by the President for any high post in the country. The Acting IGP has committed a criminal offence under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994. Having very well known that there is a pending FR case against Tennakoon in the SC for violating fundamental rights of the petitioner including torture, it is questionable as to why the members of the CC endorsed Tennakoon’s name for the post of acting IGP. This appointment is controversial. Even the NPC has failed to act fast as per the SC order. The NCP cannot take any disciplinary action against the IGP, but Tennakoon is not the sitting IGP and is merely acting in the post,” Prof. Goonesekere said.

Prof. Goonesekere further finds fault with the President for ignoring the SC ruling and allowing Tennakoon to remain in his post. “As a lawyer, the President should obey the country’s apex court ruling and should have easily terminated the acting post. The three bench has very carefully gone through the affidavits and the medical reports of the Petitioner and of the other arrestees and given a very important unanimous decision. The NPC should interdict the respondents rather than hold inquiries against them,” Prof. Goonesekere said. 
The Daily Mirror is in possession of details of both the SC judgment and the petitioner’s application that gives a comprehensive detailed report of how the petitioner was arrested based on an anonymous complaint received by Deshabandu Tennakoon. 

Deshabandu Thennakoon

Together with the petitioner, three of his friends- Nimal, Chaminda and Jayasena- were arrested on the same allegations by the Mirihana Police and were subject to severe torture at the hands of the 1st, 2nd and 5th respondents.

As per Nimal’s affidavit, Tennakoon, who is the 5th respondent, paid a visit to the place where the petitioner and three of them were detained on December 17, 2010. It further states how Tennakoon, stripped all of them naked and assaulted them with a ‘three-wheeler belt’ and ordered them to rub Siddhalepa on their genitalia. ‘We applied Siddhalepa though it was smarting. He repeatedly thrashed us with the three-wheeler belt,’ it states.

The judgement further states, ‘Therefore I find the 5th respondent to have tortured the petitioner in violation of his FR guaranteed under Article 11 of the Constitution. For this very reason, and by the very fact, I find the 5th respondent to have further violated the petitioner’s rights under Article 12 (1) of the constitution.

‘With regard to the violation of Article 13(1) and 13(2) of the constitution, from the aforementioned facts, it is clear that Tennakoon had knowledge of the petitioner’s detention on account of his visit on December 17, 2010 for a brief session of torture. He had received the anonymous complaint describing the involvement of the petitioner and three others by name only five days before the arrest and when the 5th respondent arrived at the torture chamber on December 17, 2010, he had inquired from another police officer ‘who they were’ to which the answer was ‘Sir, this is the party involved in that Sargent Major’s case’.

‘Such a loose reference to a matter alludes to the fact that not only did the 5th respondent have knowledge of the arrest of the petitioner and the three others, but he was kept updated on the events that transpired after the arrest on December 15, 2010. As such it appears that the petitioner was kept detained without being produced before a Magistrate within the legally stipulated time frame with full knowledge of the 5th respondent. Therefore I hold the 5th respondent too to have violated the FR of the petitioner enshrined under articles 13(1) and 13(2) of the Constitution’. 

In the judgement, it also states that the stars that adorn police officers’ uniforms are not ornaments of power, but rather, reminders of the immense responsibility that comes with their authority.

The judgement further states, ‘From the circumstances established in the instant case, it is clear that the 5th respondent has enabled through his actions as well as inaction, the conduct of the 1st, 2nd and 4th respondents, making him directly liable for the FR violations hereinbefore established. No material has been produced before this Court by the 5th respondent so as to distance himself from such violations.

THE SC BENCH COMPRISED OF JUSTICES S. THURAIRAJA PC, KUMUDINI WICKREMASINGHE AND K. PRIYANTHA FERNANDO DELIVERED THE JUDGEMENT DIRECTING THE NATIONAL POLICE COMMISSION (NPC) AND OTHER RELEVANT AUTHORITIES TO TAKE APPROPRIATE DISCIPLINARY ACTION AGAINST TENNAKOON AND TWO OF HIS SUBORDINATES

‘Therefore I hold the 5th respondent to have violated the FR of the Petitioner guaranteed under Articles 11, 12(1), 13(1) and 13(2) of the Constitution.
 ‘In cases of this nature where the violations are grave while the State must absolutely take responsibility, I do not see it sufficient to merely impose the liability on the State. I do not see it just and equitable to impose upon the taxpayer the burdens of compensating for the transgressions of errant officials. Having borne the burden of their earnings over the years, must the tax payer compensate for their misdeed as well?

‘Furthermore the amount of compensation awarded must sufficiently reflect the gravity of the offences as well as the audacity of the offenders. Especially where violations of Article 11 are to be found. It is necessary to award compensation in such amounts adequate to deter such degenerates’.

Hence the State was ordered to pay Rs100,000 out of the funds allocated to the Police Department while the Acting IGP Deshabandu Tennakoon, Police Officer Bandara, Inspector Bathiya Jayasinghe and Sargent Major Wanasundara were directed to pay Rs.500,000 each to the petitioner out of their personal funds within six months from the date of the judgement.
On March 28, 2011, submitting a detailed description of the physical harm caused to him in the hands of the respondents, the petitioner states that he was beaten with a three-wheeler belt on several occasions from the time he was arrested. Later handcuffed, he was tied to beams, suffocated and a bag of chillie powder was tied over his head and he was forced to inhale the contents in it.

In the medico-legal report, Dr. Ajith Jinasena, JMO of the District General Hospital, Matale (fearing the petitioner didn’t get admitted to any hospital in and around Colombo) has made note of the injuries identified having examined the petitioner on December 27, 2010. The JMO had made notes of several healing abrasions along the back of the petitioner’s neck and chest and across his arms, several resolving contusions on his arm, on the back of his chest and abdomen. The JMO report also states that the injuries identified are consistent with the medical history as narrated by the petitioner and special attention was drawn to the injuries which are consistent with a ligature at his wrist joint and corroborates the averments as to the torturous acts committed against the petitioner.

The petitioner has further been diagnosed with post traumatic stress disorder with depressive features, having left ulnar claw with both ulnar and median nerve damage, injury to spinal nerves and has restricted movements of the neck and also the possibility of left side mild ulnar nerve lesion without gross axonal degeneration and neuropraxia all of which clearly indicate the gravity of the injuries suffered by the petitioner at the hands of the respondents.   

The petitioner states how he was arrested on December 15, 2020, while he was on his way to work and was taken to the Dambara cemetery by the 1st and 2nd respondents and was questioned about one Chinthaka. When the petitioner told them that he did not know anything about this person, the two respondents had kicked his thighs continuously until the legs became numb. Thereafter the 1st respondent has made a call and has told ‘Sir we caught him’. Thereafter as per the instructions given by this ‘Sir’, the respondents have removed his T-shirt and blindfolded him with it.

About 15 minutes later, while being blindfolded, he had been dragged into a van with his hands cuffed at the back. The 2nd respondent had then threatened him that he would be buried alive in the cemetery causing fear for his life.

Thereafter the 2nd respondent had asked the 1st respondent to put chillie powder into two shopping bags and to tie it over his head for him to breathe the contents in the bag. Compelled to inhale the chillie power he had choked and suffocated at which point the respondents had removed these bags after noticing that he was about to die. The entire process of torture with chillie powder has been continued while the other police officers were striking blows to his cheeks until he was bleeding from the mouth. He was also beaten with what he described as ‘three-wheeler belts’.

During the torturing process the 2nd respondent had further questioned him about several other robberies he was purported to have been involved in, with a specific focus on the robbery said to have occurred at the house of the 4th respondent. When he has stated said that he knew nothing about it, the torture had continued. He further states that it came to a point that he could not bear the harassment anymore and in fear of his life had falsely admitted to being involved in the robbery at the 4th respondent’s house.
In his application he states, ‘In an attempt to get a relief, I fabricated a story where a person by the name of Chaminda broke into the house of the 4th respondent while he (petitioner) was outside and that Nimal too was also involved in the robbery’.

He has also falsely admitted that he was given Rs.50, 000 for having assisted in the robbery and that he didn’t know what had happened to the remainder of the stolen money.
After he ‘admitted’ to having had a hand in the robbery, the torture was stopped, but had not been given any food. Thereafter he was once again blindfolded, handcuffed, given a shower and taken to a place which he later learnt was the Mirihana Police Station.

 He was further questioned by the 1st and 2nd respondents and has informed that he has 15 robbery cases against him in Padukka which he has not accepted. Since he did not admit that he has 15 pending robbery cases against him, he was once again subjected to torture. In addition to the chillie powder harassment two officers had jumped on his thighs until his legs became numb.

Since it was unable for him to bear the pain and agony he once again succumbed to the pressure and had admitted to various wrong doings; including admitting to breaking into the co-operative store, removing the rubber from a lorry, stealing some gold jewellery and breaking into his brother in law’s house etc.
He had then told the police that he could show the stolen goods buried in his garden. When he was brought to his house on December 16, by the 1st, 2nd, 4th respondents and four other police officers, the police could not find any robbed items. The 2nd respondent and another police officer had beaten the petitioner mercilessly in front of his wife and two children-aged nine and two years. The nine- year-old child had fainted seeing her father being tortured in front of her.

He was then taken back to Mirihana Police ‘torture chambers’ and had hung him upside down on a roof beam. The respondents from time to time had questioned the petitioner and he had said that he was compelled to lie because he wanted to escape from the torturing merely to experience some relief from the severe pain. On December 18, he was once again hung by his hands on a beam. He further states that from the time he was arrested on December 15 on or about December 18, 2010, he wasn’t given even a single morsel of food. He also states that the 2nd respondent had beaten him 25- 30 times with a three-wheeler belt. Although his wife had repeatedly visited the Mirihana Police to see him, the officers there, despite having admitted that the husband was inside the police, had not allowed to see him.

The petitioner maintains that he and his friends were produced before the Acting Magistrate, Awissawella on or about December 19, 2010, to obtain a detention order for 48 hours under the pretext of conducting further investigations. By informing the court that the petitioner was arrested on December 18, the 2nd respondent hoodwinked the Acting Magistrate as the arrest was made on December 15. Although a 48- hour-detention order was granted neither he nor the other three were produced before the court on December 21, 2010. Hence the Acting Magistrate on December 22, had declared that the detention was unlawful and called a report from the DIG Nugegoda regarding the subject.

 When the petitioner and the rest were produced before the court, he had informed the Magistrate of the harassments they had to face at the hand of the police officers.  The Magistrate granted bail to the petitioner and the three others and ordered them to be given necessary medical treatment and the case record to be placed in the safe.

Meanwhile, the 1st, 2nd and 4th respondents in a joint statement of objections, have stated that they were conducting investigations on the instructions of Deshabandu Tennakoon.
One of the arrestees, in an affidavit states how they were sunk into a pond of water after their legs were tied and were taken out when they were gasping for breadth. It further states, how these respondents held shopping bags filled with petrol near their faces compelling them to inhale the petrol and while chillie powder was applied on their already bruised genitals.