Mohamed Razik Mohamed Ramzy (through A-A-L M.K.B. Ramzeen) v. B.M.A.S.K. Senaratne, Director–CID & others — SC/FR 135/2020

 

BLOGGER’S SUMMARY 

Mohamed Razik Mohamed Ramzy (through A-A-L M.K.B. Ramzeen) v. B.M.A.S.K. Senaratne, Director–CID & others — SC/FR 135/2020

Court: Supreme Court of Sri Lanka

Bench: B.P. Aluwihare PC J; Yasantha Kodagoda PC J (author); Janak de Silva J

Argued: 29 Mar 2023 — Decided: 14 Nov 2023.

Background / Facts

The virtual petitioner, a retired public servant, maintained a Facebook profile with over 1,200 followers. A post he published on 2 April 2020 led to a complaint to the Ministry of Defence; the CID arrested him and produced him before the Chief Magistrate, Colombo. He was initially remanded and later granted bail by the High Court after about five months in custody; ultimately, the Attorney-General informed that no further action would be taken and the Magistrate discharged him in September 2023. Leave to proceed was granted on alleged violations of Articles 12(1), 13(1), 13(2) and 14(1)(a) of the Constitution.

Whether the Facebook post constituted an offence under Penal Code s.120 (sedition/disaffection etc.).

Whether it amounted to “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” under ICCPR Act s.3(1).

Whether the arrest, production and remand complied with procedure established by law (Arts. 13(1), 13(2)), and whether the actions were equal protection compliant (Art. 12(1)) and consistent with freedom of expression (Art. 14(1)(a)).

Ratio

No offence under Penal Code s.120: On the facts, there was no legal or factual basis to take criminal justice measures premised on s.120. The Court explains the purpose and elements of s.120 and concludes that the petitioner’s post did not cross the threshold envisaged by the section.

No offence under ICCPR Act s.3(1): Section 3(1) carries a high threshold — not mere harsh or derogatory rhetoric, but incitement to discrimination, hostility or violence. That threshold was not met by the post; there was no evidence of “advocacy” rising to incitement. Art. 13(2) violated by producing the suspect without a report in terms of s.115(1) CCPA and depriving liberty otherwise than according to procedure established by law.

Consequently, Arts. 12(1), 13(1), 13(2) and 14(1)(a) were held infringed by the 1st respondent, for which the CID Director and the State must also take responsibility, as the acts were done under colour of office.

Orders / Relief:

Declarations of infringement (Arts. 12(1), 13(1), 13(2), 14(1)(a)).

Compensation: Rs. 30,000 personally by the 1st respondent; Rs. 30,000 personally by the 2nd respondent (Director–CID); Rs. 1,000,000 by the State; and costs to the petitioner.

Prospective relief: The Attorney-General to issue a summation of the principles in the judgment to the IGP for circulation as instructions to all police officers. Application allowed.

Principles of Law Discussed

Scope of Penal Code s.120 (modern sedition): The offence serves to deter creation of disaffection against the State/administration of justice and hostility between classes. Intention is an implied ingredient; enforcement must be reconciled with the sovereignty of the People and fundamental rights in a Republic.ICCPR Act s.3(1) (hate speech): Criminalises only advocacy that incites discrimination/hostility/violence — a high threshold; not all “hate speech” meets it. Domestic law gives effect to ICCPR Art.20(2); the Court surveys UDHR Art.7 and CERD Art.4(a) to frame the domestic test.

Procedural safeguards on arrest/production/remand: Police must comply with CCPA procedures (including s.115(1) report) when producing suspects; criminal process and remand have penal character and their misuse chills free speech.

State responsibility for acts “under colour of office”: Where an officer violates fundamental rights in the course of duty, the superior officer and State bear responsibility absent proof of preventive measures.

Precedents / Authorities considered (with the Court’s use of each)

Abu Bakr v. The Queen, 54 NLR 566 — Interpreted “classes” in s.120 as well-defined, stable and numerous groups (ethnic/religious communities); supports that intention is an implied ingredient in s.120.

Sisira Kumara Wahalathanthri & another v. Jayantha Wickramaratne & others, SC/FR 768/2009 (SC minutes 05.11.2015) — Observation that s.120 does not negate freedom of expression; the Explanation to s.120 fortifies that guarantee.

International instruments: UDHR Art.7; ICCPR Art.20(2); CERD Art.4(a) — used to anchor the incitement threshold and to explain why only narrowly defined categories of expression fall within s.3(1).

(Note: The Court also recounted the later procedural history: High Court bail on the basis that s.3(1) ICCPR was not disclosed; and the Attorney-General’s later decision to take no further action, followed by the Magistrate discharging the case — included to show the absence of a prosecutable offence.)

Arguments (brief)

Petitioner: The Facebook post did not amount to an offence under s.120 or ICCPR Act s.3(1); arrest, production and remand were unlawful and not in accordance with the CCPA; fundamental rights under Arts. 12(1), 13(1), 13(2), 14(1)(a) were infringed. (Leave to proceed was granted on these Articles.)

Respondents: Relied on the position that the post created sentiments of racial or religious hatred potentially leading to violence; referred to HRCSL “guidelines” in acting against the petitioner (which the Court noted were not, in fact, binding “guidelines”).

Decision

Application allowed. Declarations that the 1st Respondent violated Arts. 12(1), 13(1), 13(2), 14(1)(a); personal compensation ordered against the 1st and 2nd Respondents; Rs. 1,000,000 payable by the State; costs to the petitioner; and directions to the Attorney-General to circulate compliance principles to the Police.