By Ruwan Laknath Jayakody –

Ruwan Jayakody

What happens when religion, that opioid placebo of the ignorant masses, blinds one to the true nature of one’s beliefs, in this case Buddhism, and obscures the central tenet of the Buddhist faith, which is one of tolerance, and instead breeds that which is most despicable of the manifestations of institutionalized religion, self-righteous prejudice and cultural xenophobia? The result is Coleman v. Attorney General and Others.

The facts of the case – the petitioner

It all began, when Naomi Michelle Coleman, herein onwards referred to as the Petitioner, a British national and nurse by profession, who characterizes herself as a “devout, practicing Buddhist,” had arrived at the Katunayake airport in 2014 to engage in a tour of Sri Lanka with a friend, the latter who was to arrive later.

Even though the Petitioner had received official clearance from the Customs and the Department of Immigration and Emigration to enter the country, she had nearer to the airport’s exit, been accosted by a trio comprised of a taxi driver, another person and a person claiming to be from the civil defence force, who had taken objection to the tattoo on her upper right arm, depicting Buddha seated upon a lotus flower, which according to an affidavit filed by the Petitioner was a respectful personal expression with the view of paying tribute to and showing her devotion to the Buddhist teachings via a “symbol of peace and compassion representing her travels to Buddhist countries and the lessons she had learned from Buddhist monks”, stating that such was unacceptable and thereafter had forced her to accompany them to the Katunayake Police Station. According to the petition, other uniformed officers outside the airport had neither taken notice of the tattoo nor taken any visible offence to it.

Naomi Michelle Coleman

According to the Petitioner, what followed was a litany of abuse and harassment, specifically of arbitrary arrest at the hands of the Katunayake Police, events that transpired at the Negombo Magistrate’s Court (MC), detention at the Negombo Prison and the Mirihana Immigration Detention Camp, and ultimately, unlawful deportation, a process at each stage of which she was subjected to degrading treatment.

Apart from the Attorney General, the other respondents, in the order of listing in the petition, are a Police Sergeant and Police Inspector cum Acting Officer-In-Charge (OIC) attached to the Katunayake Police Station, the OIC of the Negombo Prison, the Inspector General of Police and the Controller General of Immigration and Emigration.

At the said Police Station, although the Acting OIC who questioned the Petitioner was not, according to the Petitioner, able to comprehend the answers provided by the Petitioner to his questions, no attempt was made to obtain a translator, with the taxi driver serving as the translator during the interrogation. Even though no statement was recorded from her, she was directed to make a written statement. Furthermore, the Petitioner, despite requests for the said information, had not been informed of the charges levelled against her (Neither did the ‘B’ Report subsequently submitted to the Negombo MC when the Petitioner was produced before Court provide details of the offence allegedly committed and the provisions of law under which she was arrested, charged or detained). She was also not afforded an opportunity to contact the British High Commission in Sri Lanka.

When she was detained behind bars in the Court cell at the Negombo MC, the Petitioner had had no opportunity to properly consult, instruct or obtain legal advice from the Attorney introduced by the Prisons Guards, the former who appeared for a fee of Rs 5,000. She had not been able to follow the Court proceedings which were conducted throughout in Sinhala by the Magistrate, the Court officials and the lawyer. As of the legal entitlements afforded to an alleged offender, Section 4(1)(e) of the International Covenant on Civil and Political Rights Act, No. 56 of 2007 holds that, where the alleged offender cannot understand or speak the language in which the trial is being conducted, the said person is to be provided with the assistance of an interpreter. Also, while in the MC cell, the Prison Guard in charge of the Petitioner had subjected her to lewd, obscene, disparaging and sexually explicit remarks.

According to the Petitioner’s friend who was to accompany the Petitioner on their tour, who however ended up having to visit the Petitioner at the Court house, the Petitioner was “very pale and worried,”, “crying,” and “shaken,” by the whole ordeal. The friend too had been accosted by a female Officer and male Guards who had demanded money, and she had had to part with Rs 500. When she had brought and given food and water to the Petitioner at the Court premises, a Guard had put his hand on his pistol when she had attempted to hug the Petitioner. She too had subsequently been fleeced by the aforementioned taxi driver.

At the Prison, a Woman Police Constable (WPC) had after going through the Petitioner’s belongings, demanded Rs 10,000 from the Rs 13,000 she had had on her person and had attempted to take the Petitioner’s mobile phone too. The WPC had finally taken Rs 2,000. The aforementioned Prison Guard had continued with the verbal harassment, in language which the superior Court in its verdict deemed as “unacceptable,”, “horrifying and scandalous,”, and he too had demanded money.

She was then deported and her passport returned to her only once she had arrived on England soil.

The fundamental rights petition

The Petitioner subsequently invoking the Constitutional remedy provided for in Article 17 against the infringement of fundamental rights filed this case in the Supreme Court citing the violation of the Constitutional Articles – 11 which amongst other guarantees provides for all persons to be free from being subjected to degrading treatment or punishment (in this instance, the confiscation of the passport too can be argued as constituting a punishment in that had she committed an offence which warranted the confiscation of her passport), 12(1) which amongst other guarantees ensures that all persons are entitled to the equal protection of the law, and 13(1) which enshrines that no person can be arrested in contravention of the procedure prescribed in law and further holds that all persons arrested are to be informed of the reason for the said arrest. 

The facts of the case – the respondents

The Police Sergeant attached to the Katunayake Police Station, had stated that in the said tattoo, below the Buddha atop the lotus, a male and a female lay in embrace, which according to the Sergeant had also been observed by a Police Constable. He further states that many civilians in the nearby area too had become aware of the said aspect, and that a crowd had gathered at the scene, become disturbed, restless or agitated. The latter sign had thence been interpreted by the Sergeant as an imminent disturbance or breach of the peace by the public, and therefore the need to escort the Petitioner to a safer place, whereby they had proceeded in a taxi to the Police Station. Three witnesses corroborated this version of the incident and events, however as noted by Justice (J) Anil Gooneratne writing for a bench/panel of Supreme Court Judges which included H. Nalin J. Perera J and at the time of deciding the case Acting Chief Justice, President’s Counsel Shanthi Eva Wanasundera, only in the form of belated “self-serving” statements to support the Sergeant and the Inspector cum Acting OIC. Moreover, the Sergeant had added that the facts had been correctly reported to the Magistrate, and that no charges had been framed and that therefore the question of pleading guilty had not arisen, and also that the Attorney General’s sanction would only be required if charges had been framed. He denies acting maliciously.

The Inspector cum Acting OIC on the other hand, had stated that he had received a call from a civilian about a foreign female with a tattoo. He further stated that having considered all the circumstances, he had thought it fit to produce the Petitioner before the Magistrate for a suitable order and that he had kept the British High Commission and senior Police officials notified of the matter, in writing, via letters.

The applicable legal regime and a critical analysis of the reasoning of the Supreme Court in its judgment

The apex Court held that the fact that the Petitioner had been produced before the Magistrate on the basis of a ‘B’ Report (which not only makes no mention of an offence that had allegedly been committed by the Petitioner but moreover states that the Petitioner had no intent {part of what constitutes the mens rea} to outrage religious feelings) was enough proof that Coleman had in fact been arrested. The Police had also carried out no further investigations in this regard but had only sought the deportation of the Petitioner.

Section 32 of the Code of Criminal Procedure Act which deals with instances when an arrest may be made sans a warrant or Magistrate’s order, in Section 32(1)(a) holds that it can be done in the event a person commits a breach of the peace in the presence of a peace officer while Section 32(1)(b) reads, “who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned.”

Section 291B of the Penal Code allows for anyone, who with the deliberate and malicious intention of outraging the religious feelings of any class of persons, by visual representations (a tattoo falls under this category), insults or attempts to insult the religion or the religious beliefs of that class, is punishable by way of a maximum term of imprisonment of two years, or be handed a fine, or be imposed with both. In the context of this case however, the Police attest to the lack of such intent on the part of the Petitioner. However, the Police in their recorded statements attempted to in turn make a case that there was a possibility of a public outcry breaking out. The Court was however of the view that no acceptable evidence had been placed before the Court to support such a claim. Furthermore, regardless of whether the arresting officer acted in good faith or not (bad faith), arresting a person upon a mere “Elementary, my dear Watson,” “surmise” as Gooneratne J. describes it, or on a fanciful presumption, will, to quote Gooneratne J. once again, “not suffice.”

If the law enforcement authorities, in this instance the Police, adopt a heckler’s veto approach when faced with such an instance where there is a clear lack of “imminent lawless action (as set out in Brandenburg v. Ohio)”, whereby the Police seek to prevent possible reactions from the people by restricting in prior certain actions of and by the people, what such a practice exhibits is the imposition of a pronounced chilling effect upon the domain of expressions which fall within the ambit of what late Associate Justice of the Supreme Court of the United States (US), Oliver Wendell Holmes, Jr. in his dissent in US v. Schwimmer, advocated for, which is “not free thought for those who agree with us but freedom for the thought that we hate.”

Elsewhere, writing on a certain central tenet of democracy, namely free speech, the late American jurist Prof. Ronald Dworkin argued for a right to ridicule while opposing a right not to be insulted or offended. He railed against the “endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of ‘multiculturalism’, and that Governments are right after all to propose that it be made a crime to publish anything ‘abusive or insulting’ to a religious group.” He pointed out that “religion must observe the principles of democracy, not the other way around. No religion can be permitted to legislate for everyone about what can or cannot be expressed any more than it can legislate about what may or may not be eaten. No one’s religious convictions can be thought to trump the freedom that makes democracy possible.”

This raises a question. What if someone sought to with deliberate and malicious intent, outrage the religious feelings of any class of persons, insult or attempted to insult the religion or the religious beliefs of that class? In a joint statement cum declaration issued in February 2001 with the United Nations Special Rapporteur on the Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe Representative on the Freedom of the Media, and the Organization of American States Special Rapporteur on the Freedom of Expression as signatories, it was noted that laws governing ‘hate speech’ should in consonance with international and regional law, at a minimum, conform to several guidelines one of which states that “no one should be penalized for statements which are true.”

To paraphrase Gooneratne J., “there was no proper legal basis or a right to arrest the Petitioner at all. The Police could arrest only on reasonable grounds of suspicion. This is nothing but an erroneous assumption of authority by the Police. To permit extra judicial arrest would be detrimental to the liberty of the Petitioner. We in this Court cannot encourage illegality merely to help the Police.”

As per the provisions in Sections 31(1)(iv)(d) of the Immigrants and Emigrants Act, No. 20 of 1948, it is the Minister in charge of the subject who is solely vested with the authority to issue a deportation order to remove non-citizens from the country, and therefore the matter does not come under the jurisdiction of a Magistrate or MC.Further, Article 13(7) of the Constitution holds that such an order under the Immigrants and Emigrants Act cannot be contrary to the said Article. Gooneratne J. further observed,“that the Police, in the case in hand, had misrepresented the facts and misled the learned Magistrate into believing that a Deportation Order could be made by such a Court.”

It is also pertinent to note that on the matter of the exercise of sovereignty, Article 4(d) of the Constitution holds that all Governmental organs engaged in executive or administrative action or otherwise are duty bound to respect, secure and advance fundamental rights.

Although not made mention of in the Court’s ruling, the following Constitutional Articles – 10 {the freedom of thought, conscience and religion/belief}, 13(2) {that anyone held in custody, is detained or otherwise deprived of personal liberty shall not be further held in custody, in detention or be deprived of personal liberty except upon and in terms of the order of such judge made in accordance with the procedure established by law}, 13(3) {the right for anyone charged with an offence to be heard, in person or by an attorney-at-law, at a fair trial), 14(1)(a) {the freedom of expression}, 14(1)(e) {the freedom to manifest one’s religion or belief in worship, observance, practice and teaching by oneself in public or in private} and 14(1)(f) {the freedom to enjoy and promote one’s own culture and to use one’s own language}.

In conclusion, the Court directed that a sum of Rs 500,000 was payable by the State as compensation to the Petitioner along with a further Rs 200,000 as costs, while also ordering the Sergeant and the Inspector cum Acting OIC to pay Rs 50,000 each as compensation to the Petitioner.

Conclusion

Expressing her views on the outcome of the case and any words of wisdom she had for visiting tourists and the local authorities, in a post-verdict newspaper interview, Coleman stated that, “The whole situation was handled badly and I was very frightened as I did not know what was going to happen to me. I am glad that it has been acknowledged that the Police officers are at fault and that they have been asked to pay a fee. Sri Lanka is a beautiful country, however I will not be able to return to it due to a small percentage of people who would still wish to harm me. Fellow tourists, just be mindful if you have a tattoo of the Buddha as there is a small percentage of extremists who could create a huge problem.”