| by JC Weliamuna
A close look at the series of illegal steps taken by law enforcement authorities
( May 9, 2014, Colombo, Sri Lanka Guardian) Ms. Naomi Michelle Coleman, a British Tourist with wide travel experience in many Buddhist Countries who had a large tattoo of the Buddha and of a Hindu God on a lotus flower on her right arm, arrived in Sri Lanka on 21st April 2014. She passed through immigration counters and came out of the Airport to the arrivals lounge and came out of the main arrival building. She responded to the media before being deported and disclosed what happened to her at the time of arrest: “taxi driver then approached her and said that her body art would be a problem. I said I’ve come twice before with the tattoo and that if it’s offensive, I will cover it up. Outside the airport, she was approached by another taxi driver and a man claiming to be a plain-clothes policeman who had told her she would have to make a statement at the police station” .
Since then she was under arrest, kept in remand at the Negombo Prison and then was detained in the Immigration Detention Centre, Mirihana (Transit Camp). She was produced before the Negombo Magistrate. She was finally deported. Her agony apart, there are multiple legal issues touching the very foundation of Rule of Law in this country and which should be an eye opener to the legal fraternity. This article is an attempt, in the public interest, to analyse the legality of the arrest and deportation of the British tourist - together with the role of the police and the Magistrate. However, this article does not deal with the international law.
The Alleged Offence and B-Report filed in Court
I must start with the stark revelation that the Magistrate has not been informed of an alleged offence committed by Naomi. According to the report filed by the Officer in Charge, (police station Airport) dated 21 April 2014 (bearing No. B 354/14), the Airport Staff had given information to police that a woman (Naomi) with Buddha tattoo on her upper right hand had arrived from England. The Report further states that the investigations have revealed that the suspect had no intention to insult Buddhism or to incite people but she had come to Sri Lanka “without proper understanding”. The police believes that if she stays in Sri Lanka, there is likelihood of creation of public infuriation and therefore moved the Magistrate (of Negombo) to make an order deporting the suspect Naomi without permitting her to stay in Sri Lanka.
I must say that this is not the first time the Government of Sri Lanka deported tourists with tattoos but the writer is unable to obtain all such case records to ascertain under what law such persons were deported previously. Let me however refer the reader to the Police Spokesman’s version on why Naomi was arrested. According to Mr. Ajith Rohana, SP, Police Spokesman, she was arrested on the charge that she had violated section 291B of the Penal Code of Sri Lanka . Though such legal provisions have not been even referred to in the B-Report filed in Court, let us have a quick glance at the relevant provisions:
“291B. Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of persons, by words, either spoken or written, or by visible representations, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. ".
Any law student is aware that proof of a criminal case has to be beyond reasonable doubt. When a police officer arrests a person, what should guide the police officer is clearly recognised in our law. For centuries, the principle (governing the elements of arresting officer’s mind) has been legally established, long prior to the introduction of the Fundamental Rights chapter to our Constitutions. Let me set out the words of Justice Gratian, from the often quoted judgement of Corea vs. The Queen , which discloses the governing principle:
“Police officer must realise that before they arrest without a warrant, they must be persuaded of the guilt of the accused.” (emphasis added)
In our criminal law, as in the case of most democracies, the prosecution has to establish both mental (mens rea) and physical element (actus reus) in relation to the criminal conduct. In my view, the element of “the deliberate and malicious intention of outraging the religious feelings” is completely absent in this case.
Apart from this, in the Report submitted to court, the police concede that there is no intention on the part of the suspect to commit an offence. In my view, the police are then left with only one option that is to release her from custody immediately without resorting to extra judicial detention or seeking any orders from courts. Therefore both arrest as well as the detention is illegal.
The procedural aspects of criminal legal proceedings are governed by the Criminal Procedure Act. Initiation of the criminal case should have been filed in accordance with the procedures laid down in this statute.
The procedure in instituting actions against anyone committing an offence under section 291B of the Penal Code is different to average criminal cases, because Chapter XIII of the Code of Criminal Procedure Act sets out a different safety mechanism against abuses. Section 135(1)(e) of the Act stipulates “Conditions necessary for the initiation or prosecutions for certain offences”, which is as follows:
"135.(1) Any court shall not take cognizance of-
(e) any offence punishable under section 290A or section 291B of the Penal Code unless upon complaint made by the Attorney-General or by some other person with the previous sanction of the Attorney-General;"
The police had filed this case without any reference to Attorney General and in fact the complaint is made by the police themselves. Therefore the institution of the proceedings against Naomi is completely illegal.
Role of the Magistrate –
Magistrates or any judge in any court have no unlimited power to deal with any case. All powers are demarcated with clear boundaries. Unless a specific statute gives specific powers, Magistrates can impose limited punishments such as imprisonment upto two years, fine not exceeding Rs.1,500/- or combination of both of them . The Constitution and many other statutes such as Criminal Procedure Code Act provides for specific limitations on the power of the Magistrate. In this case, the Magistrate has issued a Deportation Order deporting Naomi to her country! Let us now examine the legality of this order and the vital question here is who has the legal power to deport.
Deportation is generally a power historically vested in the executive to carefully exercise depending on facts of each case. This power is subject to review by courts. Sri Lanka has not forgotten the celebrated case of Bracegirdle, where a British planter who associated himself with the labour movement in Ceylon in 1930s lead to a deportation order issued by the Governor General. The Deportation order was challenged and the courts have held that Rule of Law is the basis of our constitutional framework and administration is bound by the law and it cannot interfere with the rights of the individuals except in accordance with the law. In 1937, a well respected Chief Justice (Abrahams CJ) in quashing the deportation order held that the arrest and detention was unlawful as the Governor did not have proper legal authority under the circumstance to make a deportation order. We read and re-read this judgement which is reported in 39 NLR 193 and we keep in mind that civil liberties were in fact protected, I would say even robustly - under the British Rule thanks to the strong judicial system we had then.
In my view, a Magistrate/Magistrate's Courts in Sri Lanka has no ‘Inherent Power’ whatsoever to issue Deportation Orders. Therefore, if the Magistrate is to issue ‘Deportation Orders', such powers should be specifically given by an enactment. I am unable to find such an enactment. Another aspect must be born in mind – that is - the legal authority which has power to deport a person has not made a deportation order on Naomi. Who is that proper authority then?
Part V of the Immigrants and Emigrants Act deals with the deportation of non-citizens who had committed immigration offences and Part VI deals with other categories of deportations (those who are unable to support him/herself, persons with unsound mind, prostitutes, medical reasons or those who were convicted elsewhere) by the Minister. I am unable to find a legal provision which has given the magistrate legal authority to deport a person. We should not be confused here with the Magistrate’s power to prevent a person from leaving the country. What we deal with is a simple issue of civil liberties involving an innocent tourist visiting the country where the magistrate had made an order to deport. The B Report, filed in the Magistrate’s Court did not disclose any criminal offence. Thus in my view, there was a duty on the judge to simply ask why she was produced before the judge and if no such offence is disclosed, the judge should have discharged Naomi without any further orders. Therefore I respectfully submit that the order of the Magistrate is arbitrary and void ab initio.
This is one case of abuse of power by police (executive) in restricting civil liberties in a most dishonourable manner. We have seen in the recent past police successfully obtaining orders (from different magistrate courts) on how to conduct funerals, how to conduct protest marches, restraining orders preventing workers strikes and public meetings and discussions. In my view the police are seeking those orders from the magistrates – not based on any provision of law – but to take cover of a judicial order for otherwise illegal actions. The cover of a judicial order is good enough to avert a legal challenge of an arbitrary and totally illegal action of the police by a citizen in fundamental rights cases because, fundamental rights challenges are only limited to executive and administrative actions (and not against judicial actions). Another reason why police continue with it is courts are generally over worked.
I only hope that this case and the debate on the outcome of this case will shake the conscious of the judges as a whole. Judges are not mere rubber stamps of police, who run to courts seeking illegal orders. This is a case where the judicial administrators in Sri Lanka must take notice of and take some meaningful steps to put a stop to unacceptable and illegal judicial orders routinely made today, at the behest of police. I am convinced that no judiciary will be effective and deliver justice unless it learns lessons from its own mistakes, challenges and unwholesome trends. I believe that we have a collective duty to ensure that public will respect judicial orders and they will abide by them incontestably in future.