SC holds Ramzy’s arrest calling for ‘ideological Jihad’ a violation of his Fundamental Rights
Finds police officers not allowed to use discretion by higher authorities; bringing in criminal proceedings of this nature has chilling effect on others
The Supreme Court this week held that the fundamental rights of Mohamed Razik Mohamed Ramzy, who was arrested in 2020 by the Criminal Investigation Department (CID) and spent over five months in remand over a Facebook post, had been infringed.
Justice Yasantha Kodagoda, PC, also determined that by posting the impugned message on the social media site, Mr. Ramzy had not committed any offence either under the Penal Code, the International Covenant on Civil and Political Rights (ICCPR) Act, or the Computer Crime Act—the three legislations under which the arrest and detention were carried out.
With Justices B.P. Aluwihare, PC, and Janak De Silva agreeing, Justice Kodagoda concluded that there was no lawful basis to have arrested Mr. Ramzy, who, having been in custody at the time, petitioned the court via a lawyer.
Mr. Ramzy, a Sri Lankan Muslim, had been a public servant and interpreter in a public sector institution. Due to a health condition, he retired prematurely. Since December 2009, he has maintained a Facebook profile, regularly posting his views regarding socio-cultural, religious and political issues. His petition said he was “a strong opponent of racism, religious extremism, communal violence and a believer in a peaceful society filled with tranquillity and harmony among all ethnic groups”.
On April 2, 2020, founded upon his belief that “an incorrect, vicious and unfair campaign” that Muslims were responsible for spreading the COVID-19 pandemic, Mr. Ramzy wrote a Sinhala language post on Facebook in which he said, among other things, that Muslims should “immediately get ready for an ideological jihad (ideological struggle)”. This is the time, it said, “to take up the pen and the keyboard as arms, and get ready for an ideological war”. This led to his arrest by the CID upon a reference by the Ministry of Defence.
Justice Kodagoda, after consideration of the totality of the evidence and other material placed before the Court, concluded that the very
essence of Mr. Ramzy’s post was that the ideological and communication-based campaign being allegedly carried out against the Muslim community by certain allegedly racist groups should be countered through a similar campaign by the Muslim community through Facebook posts, other publications using the digital media, newspaper articles, and the like.
“This conclusion has been arrived at notwithstanding the virtual petitioner having used the understandably alarming term ‘Jihad’,” he said. “I see nothing inflammatory or obnoxious to the law and in particular any attempt to incite the feelings of either the Muslim community or any other community or incite others to perpetrate violence, particularly because the term ‘Jihad’ had been prefaced by the term ‘ideological’ coupled with the weapons the virtual petitioner called upon others to use, namely the ‘pen and the keyboard’.”
In determining so, Justice Kodagoda also took into consideration that no evidence had been produced of the petitioner previously having engaged in any violence or other illegal activity; that there was not even a report prepared by an intelligence agency of him having been engaged in any form of terrorism, including religious extremist violence or any other illegal activity; the content of his previous posts on Facebook (none of which amounts to inciting people to engage in any violence and, in fact, advocates peace); and, among other things, that the respondents do not allege that Mr. Ramzy “intended to unleash violence by either the Muslim community or any other community”.
In his observations on the extended time spent by Mr. Ramzy in remand custody, Justice Kodagoda said 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,” he held. “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.”
I see nothing inflammatory or obnoxious to the law and in particular any attempt to incite the feelings of either the Muslim community or any other community or incite others to perpetrate violence, particularly because the term ‘Jihad’ had been prefaced by the term ‘ideological’ coupled with the weapons the virtual petitioner called upon others to use, namely the ‘pen and the keyboard’.
Most unfortunately, it has now become commonplace for this Court to receive applications alleging the arrest of persons without sufficient cause and in a manner that infringes their fundamental rights,” the judgment states. “Such arrests are often followed by periods of remand which are also contrary to the law.
“Most unfortunately, it has now become commonplace for this Court to receive applications alleging the arrest of persons without sufficient cause and in a manner that infringes their fundamental rights,” the judgment states. “Such arrests are often followed by periods of remand which are also contrary to the law.”
“A careful consideration of most such unlawful arrests reveals 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,” it asserts.
While the Court could not arrive at an exact finding to that effect due to the paucity of the evidence before it, “It is necessary for me to observe that it is the responsibility of those who yield political and administrative authority over police officers or are placed in a hierarchically superior position to unconditionally refrain from giving case- or person-specific instructions to police officers, unless they have been specifically authorised 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,” the Supreme Court held.
The Court ordered the first respondent, Chief Inspector B.M.A.S.K. Senaratne, OIC of the CID's Computer and Forensic Training Unit, and the second respondent, Senior Superintendent of Police W. Thilakaratne, CID Director, to each pay Mr. Ramzy Rs. 30,000 out of their personal funds. The State was ordered to pay him Rs. 1 million.
Nuwan Bopage, with Chathura Weththasinghe instructed by Ramzi Bacha, appeared for the petitioner. State Counsel Induni Punchihewa appeared for the respondents.