When Naomi Coleman says that she was “overwhelmed” by the Supreme Court Decision vindicating her rights and compensating her to the tune of Rs.800,000, one is hardly surprised. When foreigners, specially Brits visit Sri Lanka, they do not expect a religious police a la Saudi Arabian Mutaween, to pounce on them at the Airport. To make things worse and quite shameful, one hardly expects a Magistrate, a judicial officer, to remand her and then issue a deportation order, ultra vires, condemning her as a common criminal.
Just like the Rohingyas did at Mount Lavinia, Ms. Coleman too has tasted a bowlful of Theravada Buddhism in its current and popular packaging. One might ironically say that she has received what she was searching for in her quest in countries such as Thailand and Nepal, that too, beyond all her expectations, in this beautiful isle. Her quest was fulfilled to the hilt when she was reported on media as saying that she would never visit Sri Lanka again.
I really wish that my engagement with the Criminal Justice system in this column would cease soon, allowing me to dwell on more cheerful facets of our lives; but it does not. In fact, it becomes more and more imperative to address these issues as hardly a few days go by without fingers being pointed at one or more of the institutions that comprise our Criminal Justice System. The Vidya gang rape and Ruggerite Thajudeen’s case are two among many where the whole system came under severe criticism for its opaqueness, arbitrariness and lack of integrity.
Indictment against the Criminal Justice System
A criminal justice system is not merely the courts or the criminal law; it engulfs state institutions such as the Police, Prisons, Probation Department as well as concepts like victim and witness protection, access to law, the legal profession and so on, making it an umbrella where a person who comes into contact with the criminal branch of the law could seek refuge, as accused, victim or witness. We have this system handed down to us from the colonialists, Brits in particular, well oiled and time tested, albeit not without shortcomings and weaknesses; a thing that even exists in highly developed jurisdictions too.
Yet the disturbing development of late is the extent to which the integrity of these institutions is being compromised; a situation engendered by corruption, nepotism, political influence, bribery, inefficiency and incompetence.
As the Coleman case reveals the entire institutional structure showed how putrid and defecated it was. From a Police OIC, who blindly allowed himself to be led by, eh, a tuk tuk driver, in detaining her without knowing the offence she had committed, to the Magistrate who thought it was his fifteen minutes of glory to show the whites how reverent and disciplined we were viz a viz these ‘tattoo-sporting and skin-baring white tribal savages’. From the prison guard making lewd remarks and gestures while she was in his custody to the female guard who tried to steal her mobile phone. For a person who is used to the foolproof and efficient systems of criminal justice in Britain, this might have been a nightmare, obviously. But even for natives like us, who are peddlers of corruption, nepotism, bigotry, fraud in our own humble and individual ways, this is disturbing.
Are the Police officers, especially those in charge of Police stations, such buffoons not to inquire as to under what law a person, let alone a British National, is being detained? Is the Magistrate, so ignorant in law as not to realize that deportation of foreigners is a prerogative of the Subject Minister and not his by a long stretch? Furthermore, was he even vaguely conscious of what the criminal element inherent in the act that she was supposedly charged of by the Brilliant Buddhist Crusader in khaki uniform? Do not male prison guards have any fear of acting in sexually suggestive manner to a foreign female, whose case has the potential of attracting international attention? Are female prison guards thieves of mobile phones and other belongings of those under their charge?
More disturbingly, is the Supreme Court the only place and none nearer to ground zero, where a person could get his rights vindicated? Coleman could afford it; can an ordinary man or woman invoke the jurisdiction of this apex court of the land?
All these questions beg answering; answers, all of which, beget more questions. None of the answers would inspire confidence either in the rule of law or the institutions affiliated to it.
Why the archaic notion of crime and punishment has been replaced by the modern concept of criminal justice is to ensure that not only the victims but even delinquents are dealt humanely, scientifically and therapeutically so that instead of retributory dictates, correctional methods are given priority. But when completely innocent and law abiding citizens, or even non-citizens, as in this case, themselves are relegated to the common criminal who deserves the dungeon, in a country which calls itself, a Socialist Democratic Republic, in terms of the mode of governance and a repository of Theravada Buddhism, in terms of its social outlook, one is rendered speechless.
More disturbingly, is the SC the only place and none nearer to ground zero, where a person could get his rights vindicated?
Vindicator or licensed violator of rights?
Internationally the integrity of our justice system has been questioned in areas of transitional justice, fundamental rights, rights of political prisoners etc. prompting for calls for foreign judges and tribunals. As much as we deplore such encroachments upon the sovereign governance of our affairs by foreigners, even in such, grey areas of dispute adjudication, what about these glaring showcasing of incompetence, ignorance and bigotry in more plainer plateaus such as ordinary criminal proceedings? If this is the competence level at the ordinary and the mundane, what about the extraordinary and the complicated?
The space for dissent and an alternative mode of life, including practices which are not in conformity with the religious views of the majority, is narrowing so fast. Religious and racial bigotry is assuming proportions of downright physical violence, abuse, assault and intimidation. The law enforcing authorities such as lower courts, police stations, prisons need to remain aloof of these biases and if possible, act to reverse these trends by vindicating victims of such bigotries.
Yet unfortunately, they are fast becoming, legitimate versions of carrying out such discriminatory and hegemonic practices, thus encouraging the miscreants and consequently, perpetuating the culture of intolerance and impunity. Or else, they turn a blind eye and mind their own business.
The Last Camel in the caravan
The Supreme Court says in its judgement that the treatment Ms. Coleman received was “scandalous and horrifying”. The Supreme Court should not be the last camel in the caravan having to carry all the burdens dropped by the preceding ones, as it has turned out in Sri Lanka. The lower courts as well as other State institutions of the criminal justice system should act in a manner that puts to effect the theory of Social Contract as proponed by John Locke into practice. That citizens have surrendered their sovereignty to the State, not as a means of forfeiting their personal liberties; but hoping that it will be the legitimate protector and vindicator of such rights and liberties and not the official violator of those sacrosanct rights.