Sri Lanka Supreme Court delivered another important judgment on the arrest and detention of writer Mohamed Razik Mohamed Ramzy, known as Ramzy Razik.
On 9th April 2020, he was arrested by the Criminal Investigation Department (CID) and thereafter produced before the Magistrate’s Court with a Report under the hand of the 1strespondent – Chief Inspector Senaratne, the OIC of the Computer Forensics Laboratory and Training Unit of the CID. The Report contained allegations that he had committed offences under the Penal Code, the International Convention on Civil and Political Rights Act (hereinafter referred to as “the ICCPR Act” and the Computer Crime Act.
The arrest was made on his Facebook post calling for Sri Lanka Muslims to wage an ideological struggle in the face of the vilification of Muslims in the time of Covid plague in the country.
The Judgement states that “Most unfortunately, it has now become common place for this Court to receive Applications alleging the arrest of persons without sufficient cause and in a manner that infringes their fundamental rights. Such arrests are often followed by periods of remand which are also contrary to law. A careful consideration of most such unlawful arrests reveal instances where police officers have not been permitted to exercise discretionary authority conferred on them, and been persuaded by persons in authority to act in a particular manner.”
The judgement provides a translation of his post:
“The Sri Lankan Muslim community has faced an ideological war. The Muslim community has been encircled from all sides by racist groups who are operating in the country and are waging this ideological war in a subtle manner., and thus, the Muslim community is unable to face it. Unable to do anything against this intellectual assault, the
Muslim community is watching it and waiting in shock. Racist enemies are gradually getting closer to their goal. In the face of this ideological war, Muslims are facing defeat.
Muslims should immediately get ready for an ideological jihad (ideological struggle). On behalf of all Sri Lankans, that is a religious responsibility thrust upon the shoulders of all of them. On behalf of the country and all its citizens, this is the time to take up the pen and the keyboard as arms, and get ready for an ideological war. For the purpose of confronting the vicious campaign being carried out against the Muslims who are a group of people of this country, for the purpose of creating awareness in the people about the truth, Muslims should pay attention to the need to carry out an ideological Jihad (ideological war) by using the mainstream media, social media and all other space. Nothing is impossible.”
He was detained for more than 5 months before he was given bail.
Ramzy Razik, was released from a case filed under the ICCPR. The Colombo magistrate’s court freed him on 21 September as there was no evidence to support the charges against him.
State prosecutors argued that the above Facebook post had given rise to racial and or religious hatred, which could lead to disharmony and violence and justified the arrest and detention.
The defence argued that the above motioned post is an exercise his fundamental right to freedom of speech and expression including publication, which is guaranteed by Article 14(1)(a) of the Constitution.
The court rejected the arguments of the state prosecutors and decided the petitioner’s fundamental rights had been violated. SC ordered LKR one million and sixty thousand to be paid to Ramzy Razik as compensation plus the cost incurred by him to prosecute this Application.
Excerpts from the judgement:
Observations by Court
Police officers must bear in mind the fact that arrest, initiation of criminal proceedings and causing a suspect to be placed in remand custody are by themselves criminal justice measures which have a penal character and a direct bearing on the liberty of persons. The adoption and enforcement of such measures in a manner that infringes the fundamental rights of persons can have a chilling effect on other persons too, who wish to enjoy the exercise of their inalienable fundamental rights. Therefore, such criminal
justice measures must be carried out with due diligence, independently, objectively, with great caution and strictly in the manner provided by law. Some degree of laxity can be shown by this Court, if a decision on whether or not to arrest a suspect alleged to have committed a cognizable offence had to be taken in the field at the spur of the moment, where the arresting officer was required in the circumstances of the situation to take a decision spontaneously and without any access to guidance or direction from a senior officer or legal advice. The instant case is not like that. The 1strespondent had sufficient time to consider, if necessary, to consult senior officers and to obtain legal advice from the Honourable Attorney General, and thereafter decide on whether or not to arrest the virtual petitioner.
Instead of acting as a dutiful law enforcement officer, the 1st respondent has used section 120 of the Penal Code, section 3(1) of the ICCPR Act and section 6(1) of the Computer Crime Act as weapons, and has taken action which amounts to punishment, by arresting the virtual petitioner, holding him in police custody, and thereafter having placed him in remand custody for 5 months and 1 week.
This Court must take judicial note of the fact that the Criminal Investigation Department is an established, well-organized, structured and a specialized Department of the Sri Lanka Police, with direct access to the Department of the Attorney General. Therefore, the 1st respondent had access to multiple tiers of senior officers of the CID and to legal advisors of the state who are officers of the Department of the Attorney General.
The 1st respondent does not claim in his affidavit filed in this matter, that he acted on the instructions of his superior officers. Nor does he state that he obtained and acted on legal advice. Therefore, the 1st respondent must take primary responsibility for the infringement of the virtual petitioner’s fundamental rights. The responsibility for the infringement of the fundamental rights of the virtual petitioner does not end with the 1st respondent, though it begins with his conduct of arresting the virtual petitioner.
Most unfortunately, it has now become common place for this Court to receive Applications alleging the arrest of persons without sufficient cause and in a manner that infringes their fundamental rights. Such arrests are often followed by periods of remand which are also contrary to law. A careful consideration of most such unlawful arrests reveal instances where police officers have not been permitted to exercise discretionary authority conferred on them, and been persuaded by persons in authority to act in a particular manner.
The evidence placed before this Court suggests such a situation pointing towards the direction of certain persons in authority, though due to the paucity of evidence placed by the petitioner and the position taken-up by the 1st respondent, it is not possible to arrive at an exact finding to that effect.
It is necessary for me to observe that it is the responsibility of those who yield political and administrative authority over police officers or is placed in a hierarchically superior position, to unconditionally refrain from giving case or person-specific instructions to police officers, unless they have been specifically authorized by law to give such instructions. Law enforcement officers such as police officers must have the freedom to conduct their duties independently, impartially and neutrally, and take steps and act in terms of the law, exercising their own inherent discretionary authority in a lawful manner.
Declarations and Orders of Court
(i) It is declared that the 1st respondent has infringed the fundamental rights of the virtual petitioner guaranteed by Articles 12(1), 13(1), 13(2) and 14(1)(a) of the Constitution.
(ii) The 1st respondent has when infringing the afore-stated fundamental rights of the virtual petitioner, acted under the colour of his office, as a police officer and as an officer of the Criminal Investigation Department. Thus, the 2nd respondent – Director of the Criminal Investigation Department and the state must take responsibility for the aforestated infringement of the fundamental rights of the virtual petitioner by the 1st respondent. The responsibility of the state arises out of the fact that the state shall be responsible for the actions of all the actions of its servants committed using the colour of their office, unless it is established that the state had taken all necessary measures to prevent the infringement in issue.
(iii) The 1st respondent shall within one month of this judgment pay a sum of Rs. 30,000/= to the virtual petitioner, using his personal funds.
(iv) The 2nd respondent shall pay a sum of Rs. 30,000/= to the virtual petitioner, using his personal funds.
(v) The state shall pay such sum of Rs. 1 million to the virtual petitioner.
(vii) The 6th Respondent shall within one month from the delivery of this judgement issue to the Inspector General of Police a summation of the principles contained in this judgment, which the latter shall issue to all police officers in the form of instructions, requiring such police officers to strictly comply with.
In view of the foregoing, this Application is allowed.
The state shall pay to the petitioner the cost incurred by him to prosecute this Application.
Judge of the Supreme Court
B.P. Aluwihare, P.C., J.
Judge of the Supreme Court
Janak De Silva, J.
Judge of the Supreme Court
The Judgement: SC-FR 135-2020 (Arrest due to Facebook posting)