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How Sri Lanka is using a human rights law to stifle free speech

Image: Nathasha Edirisooriya.

The International Covenant on Civil and Political Rights (ICCPR) Act of 2007 – a law meant to protect human rights – has become a tool for the Sri Lankan state to crack down on dissent.

Nathasha Edirisooriya, a Sri Lankan standup comic, was arrested on May 27 under the International Covenant on Civil and Political Rights (ICCPR) Act from the Bandaranaike International Airport, Colombo.

As per authorities, the arrest was made due to “derogatory remarks” made by the comedian about Lord Buddha and Buddhist Girl’s Schools during a comedy show in Colombo in April. Since then, her video went viral on Sri Lankan social media, triggering a wave of outrage and abuse directed towards Edirisooriya, even compelling her to apologise for her remarks.

Nevertheless, after formal complaints were lodged with the Criminal Investigation Department (CID), Edirisoorya was arrested just as she was about to leave the country. Subsequently, on May 31, Bruno Divakara, the creator of the YouTube channel ‘SL-VLOG’, was also arrested for his alleged role in broadcasting Edirisooriya’s video. A Catholic pastor who was also booked under the Act left the country before his arrest.

The arrests have drawn widespread condemnation from the Sri Lankan civil society and various human rights groups, who point to this being yet another instance where the state has stifled free speech using the ICCPR Act, ostensibly meant to protect human rights.

What is the ICCPR?

Considered a seminal document in the history of international law and human rights, the ICCPR is a multilateral treaty that commits nations to respect the civil and political rights of individuals. Compliance with the ICCPR is monitored by the UN Human Rights Committee, which reviews regular reports by state parties on how human rights are being implemented.

It was adopted by the UN General Assembly in 1966 and entered into force a decade later after its thirty-fifth ratification. Today, the covenant has 173 parties and six more signatories without ratification. Sri Lanka ratified this treaty in 1980.

What is the ICCPR Act in Sri Lanka?

In 2007, the Sri Lankan government enacted a piece of legislation called the ICCPR Act to purportedly give effect to the rights recognised by the ICCPR at domestic law, which were not already recognised by the Constitution or by existing law.

As per the Centre for Policy Alternatives (CPA), a public policy research and advocacy group, The ICCPR Act’s provisions are formulated in terms substantially and significantly different from the corresponding provisions of the ICCPR. This has kept the Act open to be used very differently than its apparent purpose.

What is Section 3 of the ICCPR Act?

Edirisooriya was arrested under Section 3 of the Act, a section that “has been used time and time again to restrict freedom of expression”, according to an Amnesty International statement post the comedian’s arrest.

The section prohibits the propagation of war or advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Offences under this section are cognizable as well as non bailable.

The section is based on Article 20 of the ICCPR. Article 20 was conceptualised in the aftermath of the Holocaust, which showed policy-makers the grave dangers associated with hate speech and propaganda targeting a particular community.

How is Section 3 misused as an anti-blasphemy law?

However, the state’s obligation to protect citizens against hate speech can often cause tension with freedom of speech itself, another cornerstone of the ICCPR. The ICCPR Act in Sri Lanka does not clearly address this tension, instead, keeping the door open for Section 3 to be used very broadly, even at the expense of curtailing freedom of expression.

Two major differences between the ICCPR and Sri Lanka’s ICCPR Act

Two major differences between the ICCPR and Sri Lanka’s ICCPR Act are important to note here. First, the ICCPR Act does not differentiate and grade different types of “incitement”, unlike the UN covenant. This means, an offensive joke and a direct incitement to violence are equivalent crimes – dealt with similarly according to the Act. Second, the section allows arrests to be made without warrant as well as without provision for bail.

Together, this makes Section 3 ripe to be used for making arbitrary arrest, technically allowing the state to incarcerate individuals indefinitely.

The Sri Lankan state has repeatedly used this section to arrest individuals accused of committing blasphemy, since the Sri Lankan constitution and other laws themselves do not have any provisions to deal with the issue.

How the ICCPR has effectively become a tool of majoritarian oppression

Notably, Section 3 has been enforced selectively in Sri Lanka, almost always targeting minorities or dissident opinions.

“The application of hate speech laws has been selective in Sri Lanka showing a clear pattern of the law being used to intimidate minority communities while the majority Sinhala Buddhists, their clergy and political leaders incite violence and spread hate speech with impunity,” an editorial at the Daily FT, stated.

For instance, Buddhist monk Galagodaatte Gnanasara, notorious for his hate speech against Muslims, has never faced a charge under the ICCPR. In 2017, he was even pursued by authorities for orchestrating attacks against Muslims, but was never charged under ICCPR, hence released on bail.

On May 28, Buddhist monk Rajangane Saddharathana Thera was also arrested under the ICCPR Act, on a complaint by another Buddhist monk, a hardliner on Buddhist issues. Saddharathna, who is popular on social media, allegedly made comments that are a threat to religious harmony on a video which went viral online. He had also made similar statements in 2022, but managed to avoid incarceration, with a court ordering him to not make such statements again. His remand was extended on June 7.

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