Image; Shakthika Sathkumara
When protective laws turn offensive -Tharumalee Silva.
Even though we cannot declare Ardha a successful short story, Sathkumara’s arrest threatens writers and artists’ right to freedom of expression. Furthermore, if he was in the wrong, he should’ve been tried under the Penal Code rather than under the ICCPR Act – Writers’ Organisation of Sri Lanka Secretary Kamal Perera
He used to walk around the town with my oldest son – Shakthika was very close to him. And now, our son has really started acting out because he misses his father Shakthika Sathkumara’s wife Yanusha
Clearly, this was only a fictional short story. However, there has been no discrimination, hostility, or any threat of violence from Sathkumara – this raises questions against the grounds on which he was arrested Civil activist Gamini Viyangoda
The arrest of award-winning novelist Shakthika Sathkumara is yet to be resolved despite the considerable amount of attention given both locally as well as internationally.
Sathkumara was arrested on 1 April after he published Ardha, a fictional short story that deals with the subject of homosexuality among the Buddhist clergy, on his Facebook page.
Sri Lanka School of Journalism Director Shan Wijetunga stated that, according to his sources, President Maithripala Sirisena is presently reviewing Sathkumara’s penalty and working towards releasing Sathkumara.
The writer was arrested under the International Covenant for Civil and Political Rights (ICCPR) of 2007 and has been presented before the Kurunegala Magistrate’s Court a total of six times thus far. The next court date for Sathkumara has been set for Tuesday, 25 June.
However, the ICCPR Act does not permit individuals charged under it to be granted bail at a magistrate’s court, unless the individual be granted bail before a high court.
An appearance before the Kurunegala High Court has been scheduled for Wednesday, 26 June in this regard. Furthermore, a fundamental rights (FR) petition has been filed before the Supreme Court for 23 September.
Trouble at home
Sathkumara’s wife Yanusha, who is also a writer, told The Sunday Morning that life has been tainted with negativity after her husband’s arrest. “He has been in rigorous imprisonment for 80 days now and we are only allowed to visit for 10 minutes each day,” she said.
She stated that the situation especially took a hit on Sathkumara’s four-year-old son, the elder of their two children.
“He used to walk around the town with my oldest son – Shakthika was very close to him. And now, our son has really started acting out because he misses his father,” she said.
She stated that she had told her son that his father had gone to Colombo and then abroad to work on one of his books.
Further, Yanusha said that she has been facing great trouble at work as people perceived her to be the wife of a criminal. According to her, this was because he was arrested under the ICCPR Act.
Nevertheless, amidst the hardships, Yanusha also mentioned that she remains hopeful that her husband will be granted bail by the Supreme Court.
Following Sathkumara’s arrest, a woman named Fathima Nushra Zarook was also arrested under the ICCPR Act for wearing a kaftan with what appears to be a ship’s wheel, which was interpreted by the authorities as being the Dharmachakraya – a symbol that depicts the teachings of Lord Buddha and the universal order.
The series of unfortunate incidents that transpired have been a testament to the level of negligence and irresponsibility of the authorities in addition to being unaware of the ICCPR Act itself prior to enforcing it.
Civil activist and Purawesi Balaya Co-convener Gamini Viyangoda stated that he hoped the issue of Sathkumara will be resolved in a matter of days.
“We believe so because of the increasing number of uninformed, irresponsible arrests made by law enforcement authorities,” he said.
“The ICCPR Act is being abused at an alarming rate by law enforcement authorities; this is becoming evident every day, so we are hopeful that Sathkumara will be released,” he said.
Further, Viyangoda stated that Sathkumara’s civic rights had been stripped after the arrest. “The ICCPR exists to protect civil and political rights for people, and this very arrest of Sathkumara’s violates the ICCPR Act in its entirety,” he explained.
The ICCPR Act criminalises advocacy of “national, racial, or religious hatred that constitutes incitement to discrimination, the hostility of violence”.
“Clearly, this was only a fictional short story. However, there has been no discrimination, hostility, or any threat of violence from Sathkumara – this raises questions against the grounds on which he was arrested,” Viyangoda said.
Taking the example of Ven. Athuraliye Rathana Thera’s fast demanding former Minister Rishad Bathiudeen’s resignation, Viyangoda pointed out an underlying threat the country may be facing with certain bhikkus taking advantage of the Government for personal gains.
“It has become a trend among the high-profile Buddhist clergy to assume that whatever they demand should be complied with,” he stated.
Sathkumara’s arrest was pledged by a group of monks named the “Regional Sasana Defence Board” in Polgahawela which filed a testimonial against Sathkumara following the publication of Ardha, stating that the story incited religious discrimination and hatred.
Looking back at similar works by writers in the past, the novel Bawa Tharanaya by renowned novelist Martin Wickramasinghe also deals with similar controversial topics with relation to Buddhism. Even though the novel was subjected to many critical reviews due to Wickramasinghe’s portrayal of Lord Buddha, he was never subjected to legal implications. Even at the very height of living in a traditional conservative society, a writer’s freedom of expression was understood.
Freedom of expression
Undoubtedly, freedom of expression contributes to and has a great impact on creating timeless pieces of art. However, at times, this liberty can be misunderstood and misused by artists in creating harmful content. Even though democracy has prevailed, provocative and controversial art has put the right to freedom of expression under the microscope.
Speaking on the matter, Writers’ Organisation of Sri Lanka Secretary Kamal Perera stated that Sathkumara’s short story, Ardha, cannot even be considered a successful short story.
“Even though we cannot declare Ardha a successful short story, Sathkumara’s arrest threatens writers and artists’ right to freedom of expression. Furthermore, if he was in the wrong, he should’ve been tried under the Penal Code rather than under the ICCPR Act,” he said.
However, recalling the famous words by Justice John Marshal Harlan, the fourth Chief Justice of the US, he said “one man’s vulgarity is another man’s lyric” in relation to obscenity in artistic works, adding that when writing, there is a notion called an “artist’s obligation”.
This moral obligation is one that makes a writer responsible for creating work that arouses negative feelings in the reader.
“In this instance, Sathkumara’s story can trigger negative feelings among the Buddhist community,” he explained. “Regardless, we as the Writers’ Organisation of Sri Lanka condemn the actions of the enforcement authorities; we portray Sathkumara’s arrest as a threat to the artists’ congregation of Sri Lanka.”
——————————————————————————————————————————————————————
Focus continues on Sathkumara’s arrest and ICCPR Act – Gehan Gunatilleke
Democracies face the perennial challenge of combating harmful speech. In Sri Lanka, the International Covenant on Civil and Political Rights (ICCPR) Act of 2007 remains at the centre of this challenge. One of the principal aims of the Act is to protect persons from speech that incites violence and discrimination. This article explains how the ICCPR Act ought to be interpreted and applied. It then discusses how the Act is interpreted and applied in practice in Sri Lanka – how it has failed to fulfil its actual purpose, and has instead become a tool of repression.
What is prohibited?
Section 3(1) of the ICCPR Act provides: “No person shall…advocate national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.” This offence is not the only speech-related offence found in Sri Lanka’s law. There are other laws including the Penal Code and the Prevention of Terrorism Act (PTA) that contain prohibitions on certain types of speech. However, it is the ICCPR Act that has recently drawn public attention.
There are a few things to consider when interpreting Section 3(1) of the Act. Notice that the section does not contain the words “hate speech”. It is a mistake to claim that the section prohibits all forms of “hate speech”. In fact, the words “hate speech” are nowhere defined in Sri Lankan law. International law, including the ICCPR, which is the instrument that the ICCPR Act is based on, offers no definition either.
So, what is “hate speech”? Let us imagine it is a reference to speech that expresses or advocates hatred towards another person or group. If that is what is generally meant by “hate speech”, it is clear that the Act prohibits only a narrow subset of the broader category of “hate speech”. The Act only prohibits advocacy of hatred of a particular kind.
The narrow subset of “hate speech” that is actually prohibited under the ICCPR Act has two specific features. First, there must be advocacy of hatred towards a particular (1) national, (2) racial, or (3) religious group. Unfortunately, the Act does not prohibit hatred towards other groups, such as gender groups, or towards specific individuals. Second, the advocacy must constitute incitement of a particular kind. The types of “incitement” that are prohibited are listed in the Act: incitement to (1) discrimination, (2) hostility, or (3) violence. Therefore, what is prohibited is only speech that constitutes a particular kind of “incitement”.
Incitement to violence is probably the most common form of “incitement”. For example, appealing to others to attack the homes and businesses of a particular religious group can be a form of incitement to violence. Similarly, compelling people to systematically boycott the businesses of persons from a particular racial group can be a form of incitement to discrimination.
However, it is not clear what incitement to “hostility” means, as neither domestic nor international law offers any definitions for the term.
The Camden Principles on the Freedom of Expression and Equality, a document prepared by the human rights organisation ARTICLE 19, attempts to define the terms “hatred” and “hostility”. The principles suggest that these terms refer to “intense and irrational emotions of opprobrium, enmity, and detestation towards the target group”. While the intensity and irrationality associated with the terms add some layers of clarity, we are still left with no authoritative definition that law enforcement authorities might rely on in practice. In this context, Section 3(1) faces a serious risk of abuse if persons are arrested for inciting “hostility” alone.
Content, consequences, and context
Even when the content of a particular statement appears to fall within the category of “incitement”, there is more to consider. The term “incitement” reflects an actual consequence. It is not enough to merely make an abstract statement telling others to perpetrate violent acts or discriminate against others. The violence or discrimination must be imminent and reasonably likely. While actual violence or discrimination need not take place, there must be a real risk of such violence or discrimination taking place in order for the statement to constitute “incitement”.
Apart from content and consequences, context also matters. The identical statement may have different consequences depending on the context in which it is made. Calling for the destruction of the lives and property of a group in a context where no person would take such a statement seriously cannot be considered “incitement”.
However, that same statement may constitute “incitement” if it is made in a context where there is serious communal tension and a reasonable likelihood of violence ensuing as a direct result of the statement.
Insults, incitement, and in-between
The ICCPR Act does not prohibit insulting a person or the person’s religion. Offensive speech often operates on a spectrum where we find insults at one end and “incitement” at the other. Three examples may help us make sense of this spectrum.
Suppose a writer pens a fictional story that characterises a Buddhist clergyman as homosexual. Buddhist clergymen may for whatever reason find this story insulting and offensive. However, the act of writing the story does not fall anywhere near the ambit of Section 3(1) of the ICCPR Act. It does not convey hatred towards a religious group, as the story does not actually advocate hatred towards the Buddhist community. It also does not involve actual “incitement”, as there is no reasonable likelihood whatsoever of actual violence or discrimination against Buddhists or Buddhist clergymen taking place as a result of someone reading the story.
Suppose that a high-ranking clergyman called on his followers to boycott Muslim businesses. He also mentions that others have called for a Muslim doctor (accused of involuntary sterilisation) to be stoned to death. He suggests that, although he does not call for such action, “that is what should be done”. Again, the first question to ask is whether there is advocacy of hatred towards a particular religious group. The statement on boycotting Muslims certainly targets a religious group, whereas the statement concerning a Muslim doctor does not necessarily refer to the entire group.
Therefore, only the statement calling for boycotting Muslim businesses potentially attracts the application of Section 3(1) of the Act. The question remains as to whether this statement is likely to prompt listeners to actually discriminate against Muslims. It is difficult to make a clear case for prosecution; there must be a reasonable likelihood that those who would not have ordinarily boycotted Muslim businesses would now be incited to do so after hearing the clergyman’s statement. It is possible to argue that a statement of this nature is open to interpretation and falls somewhere “in-between” insults and incitement. It would be dangerous and imprudent to prosecute a person for such a statement. The appropriate response perhaps is public criticism rather than the enforcement of criminal law.
Finally, let us suppose a political leader delivers a speech to an angry and hostile crowd promising “the end of Muslims in Sri Lanka should harm come to even a single Sinhalese person”. Suppose that the speech is made in the context of heightened tensions and a serious risk of violence between Sinhalese and Muslim residents in the area the speech was made. This statement clearly targets a religious group, and is made in the context of a reasonable likelihood of imminent violence. Suppose, further, that following the speech, violence against Muslims actually takes place. This third example more clearly falls within the parameters of Section 3(1) of the Act. The content of the speech, its intended consequences, and the actual context makes it an act of “incitement”. The very purpose of the section is to punish those who engage in such incitement and to prevent future incitement.
Shield or weapon?
Section 3(1) of the ICCPR Act is based on nearly the identical formulation found in article 20(2) of the ICCPR. The Covenant was drafted and negotiated during the immediate aftermath of the Second World War. This historical context forms the backdrop to the specific prohibition on incitement to violence and discrimination – a context in which violence and discrimination against the Jewish community was routinely advocated in Europe. Article 20(2) was meant to be a shield against future occurrence of such incitement. It was specifically designed to protect vulnerable minority groups.
The ICCPR Act is meant to incorporate certain provisions of the ICCPR into Sri Lanka’s domestic law. Section 3(1) of the ICCPR Act, therefore, ought to serve the same purpose as Article 20(2) of the ICCPR.
However, in the 12 years since its enactment, not a single person who has incited violence against a minority group in Sri Lanka has been convicted under the Act; this is despite four major incidents of mob violence against the Muslim community in the past five years: Aluthgama in 2014, Gintota in 2017, Digana and Teldeniya in 2018, and Kurunegala and Gampaha in 2019. Section 3(1) of the Act, which is meant to be a shield against such incitement, has failed to achieve its principal purpose.
Yet, the crisis concerning the ICCPR Act does not end there. It is not just a broken shield. The leftover shards are now being used to attack the very citizens that the law is meant to protect. The writer, Shakthika Sathkumara, who is accused of writing a short story that insults the Buddhist clergy, is currently in custody under the Act. A woman who allegedly insulted Buddhism through her attire was arrested under the Act. It would then seem that Sri Lanka’s ICCPR Act has been transformed into a weapon. It is now a weapon wielded by majoritarian power to suppress those who offend majoritarian sensibilities.
There was once a time when Sri Lankans lamented the State’s failure to enforce the ICCPR Act and bring perpetrators of “incitement” to justice. That outrage now seems a distant indulgence. The crisis has become much greater today. For what was once merely a broken shield is now a weapon of choice.
It would then seem that Sri Lanka’s ICCPR Act has been transformed into a weapon. It is now a weapon wielded by majoritarian power to suppress those who offend majoritarian sensibilities
(The writer is an Attorney-at-Law and Research Director of Verité Research).
——————————————————————————————————————————————————————–
Law enforcement authorities lack knowledge of ICCPR: BASL President
By Tharumalee Silva,
The decision of whether an oral statement, written document, or even a post published on social media leads to a violation of Section 3 is left in the hands of the police officer. He has the discretionary authority of deciding whether the individual should be arrested or not.
Article 14 of the Constitution confers the freedom of speech. This freedom is not absolute. It could be curtailed in the situations defined under Article 15. The possibility of imposing restrictions should never be used against an individual on wrong grounds. An abuse can arise only in such instances.
Controversy has arisen over the manner in which law enforcement authorities are using the International Covenant on Civil and Political Rights (ICCPR).
The ICCPR has most recently been used to launch a probe the threat against journalist Kusal Perera, the arrest of author Shakthika Sathkumara, as well as the arrest of a Muslim woman over a dress she wore, claiming it resembled the Dharmachakra.
Bar Association of Sri Lanka (BASL) President Kalinga Indatissa questioned if the law enforcement officers actually possessed proper knowledge of the ICCPR.
Speaking to The Sunday Morning, Indatissa said that since discretion lies with the police officer on arresting someone under the ICCPR, it is important that law enforcement officers are properly trained in this regard.
Below are the excerpts of the interview:
What is the ICCPR and how did it become included in Sri Lankan law?
ICCPR is a law that deals with human rights. Human rights became an important bundle of rights consequent to the Universal Declaration of Human Rights adopted by the United Nations (UN) General Assembly on 10 December 1948.
Consequent to the atrocities committed during World War II, many countries incorporated these basic human rights into their constitutions. Whenever a country becomes a signatory to a United Nations Convention, it is obliged to enact domestic legislation covering the convention. The first Sri Lankan Constitution dated 22 May 1972 incorporated some of these rights. One of the biggest issues in the 1972 Constitution, however, was that the rights recognised were not enforceable.
The 1978 Constitution made provisions for the recognition of some further rights and also introduced a judicial mechanism. In terms of Articles 17 and 126 of the 1978 Constitution, any person whose fundamental rights are violated by executive or administrative action could petition the Supreme Court within a period of one month from the alleged infringement.
Is the ICCPR followed by Sri Lanka on par with the ICCPR treaty adopted by the UN?
The ICCPR was adopted by the UN General Assembly on 16 December 1966. It came into force from 23 March 1976 in terms of Article 49 of the Covenant. The Covenant respects civil and political rights of individuals including right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights, and rights to due process and a fair trial.
Sri Lanka became a signatory by ratifying the Covenant of 11 June 1980. In keeping with the international obligations, the Parliament of Sri Lanka passed ICCPR Act No. 56 of 2007. The primary purpose of this statute was to recognise the rights which are not recognised already under the 1978 Constitution. In drafting this legislation, Sri Lanka followed the Convention.
Is the ICCPR being misused in Sri Lanka as claimed by civil society?
One of the most important sections in the ICCPR Act is Section 3.
One of the earliest cases where the ICCPR Act was used was the case of former UNP General Secretary Tissa Attanayake who was indicted in the High Court of Colombo in respect of a statement made by him during the run up to the presidential elections of 2015. There were some other cases filed during the incidents of Digana in 2018.
When you look back at these cases, a doubt arises as to whether the oral statements or written statements fall within the ambit of Section 3.
In a country where several ethnicities represent the population of the country, provisions dealing with hate speech and discrimination are important. However, it is equally important that the provisions are not used to harass a segment of society. It is also important that the application of the law is not based on extraneous or political considerations.
Article 14 of the Constitution confers the freedom of speech. This freedom is not absolute. It could be curtailed in the situations defined under Article 15. The possibility of imposing restrictions should never be used against an individual on wrong grounds. An abuse can arise only in such instances.
Do you think the law enforcement authorities have adequate knowledge of the ICCPR Act?
No. The biggest issue facing this piece of legislation is the lack of knowledge on the part of the law enforcement authorities. This is unsatisfactory.
The commencing point of an action based on the ICCPR Act is where a police officer would take into custody a citizen for having committed an offence under Section 3 of the Act. The decision of whether an oral statement, written document, or even a post published on social media leads to a violation of Section 3 is left in the hands of the police officer. He has the discretionary authority of deciding whether the individual should be arrested or not.
There have been quite a few instances where individuals have been arrested based on leaflets found in their possession. And at the end of the day, it had turned out that the leaflets did not contain any subject matter falling within the ambit of Section 3.
Therefore, in view of this discretion placed on a police officer, it is important that the law enforcement officers are properly trained in this regard.
If someone is arrested under the ICCPR Act, what steps can that person take to challenge the arrest?
All offences under the ICCPR Act are cognisable offences, meaning that an individual can be arrested without a warrant. In a clear case where Section 3 is violated, there is no problem, but in a borderline situation, the arrest can become questionable.
When a person is arrested under the ICCPR Act, a magistrate’s court cannot grant bail. Hence, the bail application has to be made to the high court. It is a requirement to establish the exceptional circumstances as to why the person should be granted bail.
On the other hand, if an individual feels that the material upon which he was arrested does not fall within the purview of Section 3, he could challenge the arrest under Article 13(1) of the Constitution by way of a fundamental rights (FR) application. These are the remedies available for an individual.
How would you compare the ICCPR to the Prevention of Terrorism Act (PTA)?
There is no comparison between the ICCPR, the PTA, and normal law. The arrest procedure is the same and only a person who has committed an offence or is suspected of an offence may be arrested. The only difference lies in the obtaining of bail. Under normal law, except in instances where there may be restrictions, a magistrate’s court has the power to grant bail. Under the ICCPR Act, bail can only be granted by the high court.
(All articles are courtesy of “The Morning”.)