Unlawful Arrest & Deportation of British

Touris: A case of abuse of power by police in

restricting civil liberties in a most
dishonourable manner
J.C. Weliamuna
Thursday, May 08, 2014
Unlawful Arrest & Deportation of British Tourist; A close look at the series of illegal
steps taken by law enforcement authorities
JC Weliamuna Ms. Naomi Michelle Coleman, a British Tourist
with wide travel exerience in many Buddhist Countries who had a lar!e tattoo o" the Buddha
and o" a #indu $od on a lotus "lower on her ri!ht arm, arrived in %ri &an'a on 21st (ril 2014.
%he assed throu!h immi!ration counters and came out o" the (irort to the arrivals loun!e and
came out o" the main arrival )uildin!. %he resonded to the media )e"ore )ein! deorted and
disclosed what haened to her at the time o" arrest* +taxi driver then aroached her and said
that her )ody art would )e a ro)lem.
, said ,-ve come twice )e"ore with the tattoo and that i" it-s o""ensive, , will cover it u. .utside
the airort, she was aroached )y another taxi driver and a man claimin! to )e a lain/clothes
oliceman who had told her she would have to ma'e a statement at the olice station0 .
%ince then she was under arrest, 'et in remand at the Ne!om)o 1rison and then was detained
in the ,mmi!ration 2etention Centre, Mirihana 3Transit Cam4. %he was roduced )e"ore the
Ne!om)o Ma!istrate. %he was "inally deorted. #er a!ony aart, there are multile le!al issues
touchin! the very "oundation o" 5ule o" &aw in this country and which should )e an eye oener
to the le!al "raternity. This article is an attemt, in the u)lic interest, to analyse the le!ality o"
the arrest and deortation o" the British tourist / to!ether with the role o" the olice and the
Ma!istrate. #owever, this article does not deal with the international law.
The Alleged Offence and B-eport filed in !ourt
, must start with the star' revelation that the Ma!istrate has not )een in"ormed o" an alle!ed
o""ence committed )y Naomi. (ccordin! to the reort "iled )y the .""icer in Char!e, 3olice
station (irort4 dated 21 (ril 2014 3)earin! No. B 6748144, the (irort %ta"" had !iven
in"ormation to olice that a woman 3Naomi4 with Buddha tattoo on her uer ri!ht hand had
arrived "rom 9n!land. The 5eort "urther states that the investi!ations have revealed that the
susect had no intention to insult Buddhism or to incite eole )ut she had come to %ri &an'a
+without roer understandin!0. The olice )elieves that i" she stays in %ri &an'a, there is
li'elihood o" creation o" u)lic in"uriation and there"ore moved the Ma!istrate 3o" Ne!om)o4
to ma'e an order deortin! the susect Naomi without ermittin! her to stay in %ri &an'a.
, must say that this is not the "irst time the $overnment o" %ri &an'a deorted tourists with
tattoos )ut the writer is una)le to o)tain all such case records to ascertain under what law such
ersons were deorted reviously. &et me however re"er the reader to the 1olice %o'esman-s
version on why Naomi was arrested. (ccordin! to Mr. (:ith 5ohana, %1, 1olice %o'esman,
she was arrested on the char!e that she had violated section 2;1B o" the 1enal Code o" %ri
&an'a . Thou!h such le!al rovisions have not )een even re"erred to in the B/5eort "iled in
Court, let us have a <uic' !lance at the relevant rovisions*
+2;1B. =hoever, with the deli)erate and malicious intention o" outra!in! the reli!ious "eelin!s
o" any class o" ersons, )y words, either so'en or written, or )y visi)le reresentations, insults
or attemts to insult the reli!ion or the reli!ious )elie"s o" that class, shall )e unished with
imrisonment o" either descrition "or a term which may extend to two years, or with "ine, or
with )oth. >.
(ny law student is aware that roo" o" a criminal case has to )e )eyond reasona)le dou)t.
=hen a olice o""icer arrests a erson, what should !uide the olice o""icer is clearly
reco!nised in our law. ?or centuries, the rincile 3!overnin! the elements o" arrestin! o""icer-s
mind4 has )een le!ally esta)lished, lon! rior to the introduction o" the ?undamental 5i!hts
chater to our Constitutions. &et me set out the words o" @ustice $ratian, "rom the o"ten <uoted
:ud!ement o" Corea vs. The Aueen , which discloses the !overnin! rincile*
+1olice o""icer must realise that )e"ore they arrest without a warrant, they must )e ersuaded o"
the !uilt o" the accused.0 3emhasis added4
,n our criminal law, as in the case o" most democracies, the rosecution has to esta)lish )oth
mental 3mens rea4 and hysical element 3actus reus4 in relation to the criminal conduct. ,n my
view, the element o" +the deli)erate and malicious intention o" outra!in! the reli!ious "eelin!s0
is comletely a)sent in this case.
(art "rom this, in the 5eort su)mitted to court, the olice concede that there is no intention
on the art o" the susect to commit an o""ence. ,n my view, the olice are then le"t with only
one otion that is to release her "rom custody immediately without resortin! to extra :udicial
detention or see'in! any orders "rom courts. There"ore )oth arrest as well as the detention is
ille!al.
"gnored #rocedure
The rocedural asects o" criminal le!al roceedin!s are !overned )y the Criminal 1rocedure
(ct. ,nitiation o" the criminal case should have )een "iled in accordance with the rocedures
laid down in this statute.
The rocedure in institutin! actions a!ainst anyone committin! an o""ence under section 2;1B
o" the 1enal Code is di""erent to avera!e criminal cases, )ecause Chater B,,, o" the Code o"
Criminal 1rocedure (ct sets out a di""erent sa"ety mechanism a!ainst a)uses. %ection 1673143e4
o" the (ct stiulates +Conditions necessary "or the initiation or rosecutions "or certain
o""ences0, which is as "ollows*
>167.314 (ny court shall not ta'e co!niCance o"/
3e4 any o""ence unisha)le under section 2;0( or section 2;1B o" the 1enal Code unless uon
comlaint made )y the (ttorney/$eneral or )y some other erson with the revious sanction o"
the (ttorney/$eneralD>
The olice had "iled this case without any re"erence to (ttorney $eneral and in "act the
comlaint is made )y the olice themselves. There"ore the institution o" the roceedin!s a!ainst
Naomi is comletely ille!al.
ole of the $agistrate
Ma!istrates or any :ud!e in any court have no unlimited ower to deal with any case. (ll
owers are demarcated with clear )oundaries. Enless a seci"ic statute !ives seci"ic owers,
Ma!istrates can imose limited unishments such as imrisonment uto two years, "ine not
exceedin! 5s.1,7008/ or com)ination o" )oth o" them . The Constitution and many other
statutes such as Criminal 1rocedure Code (ct rovides "or seci"ic limitations on the ower o"
the Ma!istrate. ,n this case, the Ma!istrate has issued a 2eortation .rder deortin! Naomi to
her countryF &et us now examine the le!ality o" this order and the vital <uestion here is who
has the le!al ower to deort.
2eortation is !enerally a ower historically vested in the executive to care"ully exercise
deendin! on "acts o" each case. This ower is su):ect to review )y courts. %ri &an'a has not
"or!otten the cele)rated case o" Brace!irdle, where a British lanter who associated himsel"
with the la)our movement in Ceylon in 1;60s lead to a deortation order issued )y the
$overnor $eneral. The 2eortation order was challen!ed and the courts have held that 5ule o"
&aw is the )asis o" our constitutional "ramewor' and administration is )ound )y the law and it
cannot inter"ere with the ri!hts o" the individuals excet in accordance with the law. ,n 1;6G, a
well resected Chie" @ustice 3()rahams C@4 in <uashin! the deortation order held that the
arrest and detention was unlaw"ul as the $overnor did not have roer le!al authority under the
circumstance to ma'e a deortation order. =e read and re/read this :ud!ement which is
reorted in 6; N&5 1;6 and we 'ee in mind that civil li)erties were in "act rotected, , would
say even ro)ustly / under the British 5ule than's to the stron! :udicial system we had then.
,n my view, a Ma!istrate8Ma!istrateHs Courts in %ri &an'a has no I,nherent 1ower- whatsoever
to issue 2eortation .rders. There"ore, i" the Ma!istrate is to issue I2eortation .rdersH, such
owers should )e seci"ically !iven )y an enactment. , am una)le to "ind such an enactment.
(nother asect must )e )orn in mind J that is / the le!al authority which has ower to deort a
erson has not made a deortation order on Naomi. =ho is that roer authority thenK
1art L o" the ,mmi!rants and 9mi!rants (ct deals with the deortation o" non/citiCens who had
committed immi!ration o""ences and 1art L, deals with other cate!ories o" deortations 3those
who are una)le to suort him8hersel", ersons with unsound mind, rostitutes, medical reasons
or those who were convicted elsewhere4 )y the Minister. , am una)le to "ind a le!al rovision
which has !iven the ma!istrate le!al authority to deort a erson. =e should not )e con"used
here with the Ma!istrate-s ower to revent a erson "rom leavin! the country. =hat we deal
with is a simle issue o" civil li)erties involvin! an innocent tourist visitin! the country where
the ma!istrate had made an order to deort. The B 5eort, "iled in the Ma!istrate-s Court did
not disclose any criminal o""ence. Thus in my view, there was a duty on the :ud!e to simly as'
why she was roduced )e"ore the :ud!e and i" no such o""ence is disclosed, the :ud!e should
have dischar!ed Naomi without any "urther orders. There"ore , resect"ully su)mit that the
order o" the Ma!istrate is ar)itrary and void a) initio.
!onclusion
This is one case o" a)use o" ower )y olice 3executive4 in restrictin! civil li)erties in a most
dishonoura)le manner. =e have seen in the recent ast olice success"ully o)tainin! orders
3"rom di""erent ma!istrate courts4 on how to conduct "unerals, how to conduct rotest marches,
restrainin! orders reventin! wor'ers stri'es and u)lic meetin!s and discussions. ,n my view
the olice are see'in! those orders "rom the ma!istrates J not )ased on any rovision o" law J
)ut to ta'e cover o" a :udicial order "or otherwise ille!al actions. The cover o" a :udicial order is
!ood enou!h to avert a le!al challen!e o" an ar)itrary and totally ille!al action o" the olice )y
a citiCen in "undamental ri!hts cases )ecause, "undamental ri!hts challen!es are only limited to
executive and administrative actions 3and not a!ainst :udicial actions4. (nother reason why
olice continue with it is courts are !enerally over wor'ed.
, only hoe that this case and the de)ate on the outcome o" this case will sha'e the conscious o"
the :ud!es as a whole. @ud!es are not mere ru))er stams o" olice, who run to courts see'in!
ille!al orders. This is a case where the :udicial administrators in %ri &an'a must ta'e notice o"
and ta'e some meanin!"ul stes to ut a sto to unacceta)le and ille!al :udicial orders
routinely made today, at the )ehest o" olice. , am convinced that no :udiciary will )e e""ective
and deliver :ustice unless it learns lessons "rom its own mista'es, challen!es and unwholesome
trends. , )elieve that we have a collective duty to ensure that u)lic will resect :udicial orders
and they will a)ide )y them incontesta)ly in "uture