21 November, 2018

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On Unlawful Arrest & Deportation Of The British Tourist

By JC Weliamuna

JC Weliamuna

JC Weliamuna

Unlawful Arrest & Deportation of British Tourist: A close look at the series of illegal steps taken by law enforcement authorities

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”[2]. 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[3]. 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[4],   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.

Ignored Procedure

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[5]. 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.

Conclusion

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.


[1] JC Weliamuna, LLM, Constitutional & Human Rights Lawyer, Eisenhower Fellow, Chairman, Transparency International Sri Lanka

[2] http://www.sundaytimes.lk/140427/news/sl-tourism-on-damage-control-over-buddha-tattoo-naomi-93997.html

[3] http://www.bbc.co.uk/sinhala/sri_lanka/2014/04/140423_tattoo_deportation_illegal.shtml

[4] 1955 NLR457 @  pg 464

[5] Judicature Act. S.14

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Latest comments

  • 7
    0

    An excellent and comprehensible post mortem of the whole sordid affair,only spoilt, for me,by the misspelling of the name of Justice GRATIEN (but then,spelling was never a strong point of J C Weliamuna.)

    • 2
      2

      Dear JC Weliamuna –

      “Unlawful Arrest & Deportation of British Tourist: A close look at the series of illegal steps taken by law enforcement authorities”

      “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. :

      Thank you for highlighting the Para-Sinhala Buddhist problem, that is affecting the Land of the Native Vedda. Why DOUBLE STANDARDS?

      Let me summarize.

      1. The Para-Sinhala, The Para-Tamil sand Other Pars, are Parsadesis who arrived from India, illegally, They all should be deported to India.

      2. The proof is in Their DNA.

      3. Hinduism and Buddhism arrived from India, two Paradesahi, or Foreign religions as far as the native Veddah are concerned. theu are not superior, jut different, with their own myths.

      3. Native Veddah wants all Para to be deported to India, where tjhey came from, whether they have Tattoos of Buddha Rama, Sita, Hanuman, Mara, The devil or not.

      • 0
        0

        Ballige puthas regime would never see it right.

        He behaves as if he is in deaf mode. How can this man ever become our president.
        People should be fool of the fools to have voted this man into power.

        Our people should be very unique to them – KNOWING all the bunch of Rajapakshe and his men have only been driving this country to ruins… just stay blind and deaf – people ( the masses) should be brain sick.

    • 3
      0

      Dear JC Weliamuna –

      RE: On Unlawful Arrest & Deportation Of The British Tourist

      So we have Double Standards, in the “Dhamma Deepaya”, The Land of Monk Mahanama “Buddhists: with their Imaginations of Buddha and Buddhism, and with monks Running Amok and committing crimes with Impunity.

      What a farce. The Paras need to get back to India.

      “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[4], which discloses the governing principle:”

    • 0
      0

      Govt should offer the tourist a new air passage so that she could come and visit the country could heal this dispute.

      The officer that worked against the passenger should be interdicted making him a lesson then only other officers of the same idiocy would not react in that way. A country whose economy is based on the tourist arrivals should not neglect the issue in this way.

    • 1
      0

      Three hearty cheers to JC Weliamuna – you are a well respected lawyer and a brave defender of human rights. You stand tall amongst the lesser mortals of the legal fraternity for your integrity and sense of decency, joining only a small handful of legally trained people who are willing to speak up against injustice, although in doing so, put themselves in the spotlight of the totally corrupt and vicious criminals who rule our dear country.

      That intellectually and morally bankrupt (and effete) bugger G L Pieris must know that he stands in shame for all his misdeeds when compared with JCW, Kishali P-J and a few of their ilk.

      Where have all the other lawyers gone? Where has the Bar Association gone? Where have the academics gone? Long time passing, long time ago……

  • 8
    0

    Reading several articles by legal experts, now I realize how the law has been ridiculed by the police and the immigration officers. Apart from that, I get the feeling that the police and immigration officers have also been driven by the unofficial law of the country – that is any act deviating from the established norm of Sinhalese Buddhist street cult/gang law which keep on changing on a daily basis, with full patronage from the President (according to BBS, the president has no objection to having a BBS police, except for a manpower problem to recruit officers to enforce such a force). So, the constitutional police is confused. They enforce half of law passed by the parliament and a half of BBS cult/gang law. Naturally they felt a danger to this lady from these gangs, and found the closest official law they can use to deport this lady in good intention.

    This unofficial religious cult that demands to discriminate other believes and imposes punishments on those who deviate from the norms they impose was started by Dharmapala’s and nurtured by successive Southern Prime Ministers and Presidents including the current President. What is needed now is a revolution within the legal community first and the civil society at large, to re-establish rule of law passed by a parliament that arrests cult law.

    All foreign aid should be channeled first to train Sri Lankan law enforcement officers to follow the proper law, not the cult law. Any extra funds can be spent on concrete and tar, because concrete and tar on shaky justice will crack and collapse without doing justice to the tax payers of the respective countries.

    • 2
      0

      Thrishantha, This law needs to be challenged by Weliamuna or the Bar Association. It can also be challenged by a citizen (may be even a Buddhist priest) of the country with a tattoo of the Buddha, on arrival in Sri Lanka. What are the legal grounds to arrest?

      I see many writers in news papers(including those who show metta/karuna to animals) callously justifying the deportation of the tourist concerned on the ground that the tattoo was disrespectful to Buddhism. The mutant Buddhists are blinded (avijja) to those acts that are more disrespectful in this country such as
      Murder(even by politicians)
      Robbery and Thievery
      Rape
      Lying (by politicians included)
      Dishonesty(even by politicians)
      Unkindness
      Cruelty
      Worship of cement and concrete structures
      Worship of Trees

      True Buddhism is disappearing in Sri Lanka. What will remain will be mere observance of ritual like in many Western religions.

  • 8
    0

    It would be interesting to know what the current CJ’s views are about the magistrate’s illegal deportation order.

    Would he as the chief judicial administrator of law in SL,now promote the said magistrate as SC judge or send back to the Law College for further study and training?

  • 10
    0

    if they are making such a fuss about a tattoo regarding religious feelings then they should arrest that mad buddhist monk and stick him prison I would sedate him first… the law in srilanka is becoming a joke.

  • 1
    0

    No amount of critical comment would satisfy those of us who are outraged by the path on which we are taken by this government. However forceful or however cleverly reasoned this administration will not deviate from it’s chosen path. J.C.Weliamuna is wasting his time.

    The plain fact is that the three branches of the government do not observe the law at all. Any action decided on the spur of the moment by any one in authority is the law. This type of action is normally recognized by the wise as IMPUNITY. In fact impunity is the law and it is high time that we enshrined it in our Constitution and dispensed with all other laws.

    Just as much as the Executive acts with impunity, the Legislature, and now the Judiciary too acts with impunity. The BBS and other mutant Buddhists have also started acting with impunity.

    The fun will start when the ordinary citizen too feels he is free to adopt the same attitude of impunity. At that time it will be recognized as ANARCHY. That is where we are being taken by this foolish man at the helm. My recommendation is that we buy sturdy padlocks and be ready to bolt our doors.

  • 3
    0

    It appears that the magistrate was/is ignorant/disregarded the provisions of the law relating to ‘deportation’ of a foreigner for offences committed in Sri Lanka.
    The least he/she could have done is to have consulted the department of the attorney general before deciding how to proceed.
    It is also reported that this lady had ‘retained’ a lawyer for Rs.5,000 who too had obviously failed to suggest this to the magistrate.
    Do we need lawyers and judges of this calibre?

  • 3
    0

    Mate, mate, mate…

    Do you have to go that far a write a CONCLUSION? This is a country where nobody gives any regards to the Law. That’s it!

  • 2
    3

    I can not believe a retired judge has been THIS much political.

    Only the people went through immigration of many different countries know how immigration authorities treat the visitors.

    This is just an crap article by a retired judge.

    He looks very much a politically active person with a specific AGENDA.

  • 1
    1

    Wlimume comes forward to close the stable’s door after the horses have bolted.

    Alittle too little… alittle too late………
    Singing for his supper. !!!!!!!!!!!

  • 1
    3

    Sorry this is rubbish Immigration officials around the world have the power to deport anybody no questions asked . The Airlines are obligated to bear the cost . While it is unfortunate that this woman was deported , there is no legal issue here .

    Just go check how many Sri Lankans are deported from singapore on arrival .

    Cheers

    Abhaya

    • 1
      1

      Abhaya

      “Just go check how many Sri Lankans are deported from singapore on arrival”

      They deserved to be deported to their country of origin, India, not back to this island.

      Have you read the article in full?

    • 0
      0

      You and the like ilk would only see that only myopic
      Have your brain cells healed before travellign to the country next.

      Ballige puthas of your kind are the majority that help Rajapakshe maraurders to do whatever they is right.

      Man, immigration offiers have no authority to go against the passengers coming from long way to make their dreamy holidays .
      I was met with this, i would have gone mad. I would take every action all legal means.

  • 5
    0

    Mr Weliamuna you are wasting your time explaining the intricacies of the law to idiots, morons and donkeys.
    There is no law and order in this country. It is a failed state and the only way out is to throw all the Rajapakses into jails.

  • 2
    0

    The illegal orders by the magistrate is clear. But this is not the only case . Now it had become a fashion to obtain orders from magistrate to stop unarmed protests like pickets or demonstrations what is the law.
    Not long ago a magistrate (now elevated to high Court) ordered how a funeral arrangements should be conducted when a peaceful protester of free trade zone was killed inside a factory premises when the protest was against the amendments ot the EPF Act, which was withdrawn later. What was the power of the magistrate to order the way the funeral rights should be conducted , there was no law but people adhered to it .
    The examples are numerous , there is clearly no law fro deportation of persons with the magistrate as well as preventing peaceful demonstrations overreaching funeral rights . Therese are powers with the executive or other law enforcement agencies.
    Sadly, when the Police made a lawful application to stop the factory from polluting water in Rathupaswala , the Magistrate postponed the case that led to demonstration and loss of 3 lives.

  • 1
    0

    Guess what: the magistrate has been let off scot-free. Jayawewa!

  • 1
    0

    In this corrupt lawless, so called “Wonder of Asia” only criminals, drug dealers and terrorists are welcome. God save former Democratic Sri Lanka from these LUNATICS.

  • 0
    0

    Weliamuna being a respected legal luminary should look beyond his NGO psyche.

    1. Just beneath the Buddha Tatoo is a sexplicit kissing of two God like portraits. He’s silent on that. its an insult to portray such behavior infront of Buddha whether its a tottoo or not.
    2. Just because the tourist lady concerned is of British descent it doesn’t mean their (West, first world) actions are always correct.
    3. What if Welamuna tattoo himself and sport Jesus in the Vatican or Prophet Mohammed in Saudi or God Shiva in the streets of Delhi ? He won’t have a writer to defend him will he ?

    Pls Welamuna, learn to repect religous sensitivites beyond so called Universal Rights and shed your glasses to live in Sri Lanka or deport.

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