Untitled - International Commission of Jurists

application of the doctrine of vicarious liability to hold officers of higher rank
responsible for the actions of their subordinates who commit gross human rights
abuses. 116 The responsibility and liability of these officers were declared not to be
restricted to participation, authorization, complicity and/or knowledge. On the
contrary, such officers were under a duty to take all reasonable steps to ensure that
persons held in custody were treated humanely and in accordance with the law. That
included monitoring the activities of subordinates, particularly those who had contacts
with detainees. While this liability was applied by the Court primarily to police
officers and prisons officers, some decisions applied this rule to commanding officers
in respect of detainees governed by emergency regulations.
In Banda v. Gajanayake, 117 the Court considered a case in which several persons were
detained under the Emergency Regulations and subsequently killed by a mob. The
petitioner was one of the Officers-in-Charge. The Court accepted the principle that the
inaction of the police constituted an illegal omission. In Deshapriya v. Weerakoon, 118
the commanding officer of a naval establishment was held liable for the torture of a
person in custody even though there was no record of the officer’s participation in the
act of torture. These decisions provided a salutary expansion of the law from an
earlier judgment of the Court in which a commanding officer in charge of an army
camp where several children were imprisoned and tortured by his subordinates was
declared not to have been responsible for any violation of human rights. His
subsequent promotion had been deemed legal. 119
Further, the implicit right to life recognised by the Court was expanded to an explicit
recognition of the right not to be ‘disappeared.” 120 The fact that this latter
development occurred in the context of an ordinary appeal from a dismissal by the
Court of Appeal of a habeas corpus application 121 was particularly significant. In this
instance, a father had complained that his sons had been involuntarily removed in
1990 by soldiers attached to the Plantain Point Army camp. The dismissal in the
Court of Appeal was on the basis that the petitioner had not succeeded in discharging
the requisite burden of proof to establish that the army officer named as respondent in
the petition had, in fact, been responsible for the abduction. The Supreme Court
express right to life) an implied right logically stemmed from the constitutional right not to be punished
with death or imprisonment except by court order (Article 13(4). Also (in the context of a habeas
corpus application), these same principles were reiterated in Kanapathipillai Matchavallavan v. OIC,
Army Camp, Plantain Point, Trincomalee and others S.C. Appeal No. 90/2003, S.C. (Spl) L.A. No.
177/2003, SCM 31.03.2005, per judgment of Justice Shirani Bandaranayake.
115 In Thavaneethan v Dissanayake, [2003] 1 Sri LR 75, (per Justice Mark Fernando) it was judicially
opined that unlike regulations issued in terms of the PSO, regulations made under the PTA cannot be
justified in restricting constitutional rights as they are not encompassed within the ambit of ‘regulations
made under the law for the time being relating to public security’ as declared by Article 15(7) of the
Constitution which is the definitive constitutional article by which such restrictions can be imposed.
116 Sanjeewa v. Suraweera [2003] 1 Sri LR 317; Sriyani Silva v. Iddamalgoda [ibid] and the Wewalage
Rani Fernando case,[ibid].
117 [2002] 1 Sri LR 365.
118 [2003] 2 Sri LR 99.
119 Liyanage v. de Silva [2000] 1 Sri LR 21.
120 Kanapathipillai Matchavallavan v. OIC, Army Camp, Plantain Point, Trincomalee and others S.C.
Appeal No. 90/2003, S.C. (Spl) L.A. No. 177/2003, SCM 31.03.2005.
121 Generally, the writ remedy of habeas corpus available in the Court of Appeal (and from 1987, in the
Provincial High Courts) has proved to be an ineffective remedy primarily due to the extended delay in
these cases being finally determined as would be discussed later.
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