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Natasha Edirisooriya Vs ICCPR Act ;The land mark High Court judgement in full

Image: After Natasha was given bail on 06th.

After considering the petition filed on behalf of Edirisooriya  before Colombo High Court Judge Aditya Patabendi  she was granted bail on 05th July.

As there was a case against her at the Colombo Magistrate Court she was not released on the same and  next day MC too granted bail to Natasha.

The Bail Order was given in Sinhala language and here we publish an unofficial English language translation of the Bail Order. This is a  land mark judgement that will be a turning point in stopping abusing ICCPR Act, Sri Lanka. The Bail Order clearly set parameters of what can be considered as  hate speech in a court of law.

Emphasis in bold letter are from SLB.

At Colombo High Court No.4.

Before Colombo High Court Judge A.K.M.Patabandige
Colombo High Court Case No: HCEBA/1335/2023
Fort Magistrate Court Case No: B/25774/2023

Recorded by Miss. Iresha Priyadarshani, Stenographer.
Date: 05.07.2023

In the matter regarding the application for bail submitted in terms of Section 3 (4) of International Covenant on Civil and Political Rights Act No.56 of 2007.

Officer in chargeල Internet Surveillance and Intelligence Unit
Computer Crime Investigation Division
Criminal Investigation Department
Colombo 1.
Plaintiff

Versus
Edirisooriya Arachchige Jayani Natasha Edirisooriya,
N0.81, Pahalagama, Weveldeniya.
Suspect
And/now between,
Edirisooriya Arachchige Jayani Natasha
Edirisooriya,
N0.81, Pahalagama, Weveldeniya.
Petitioner
Versus
Officer in charge
Internet Surveillance and Intelligence Unit
Computer Crime Investigation Division
Criminal Investigation Department
Colombo 1.

Plaintiff respondent
Hon. Attorney General
Attorney General’s Department
Colombo 12

Respondent
Edirisooriya Arachchige Jayani Natasha
Edirisooriya,
N0.81, Pahalagama, Weveldeniya.
(Presently detained at Welikada Remand Prison)
Suspect respondent

Bail Order

Matters submitted by both parties are considered. Even though the Senior Deputy Solicitor General stated that no objection was raised against the granting of bail, bail may be granted in terms of Section 4 of International Covenant on Civil and Political Rights Act No.56 of 2007 in exceptional circumstances only.

Not raising objections on behalf of the Attorney General against the granting of bail alone is not a reason for granting bail. There, the court must be judicially satisfied about the existence of exceptional circumstances.

Section 3 (1) of International Covenant on Civil and Political Rights Act No.56 of 2007 states as follows.

“ No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Specially, presenting the International Covenant on Civil and Political Rights Act to Parliament on 10.10.2007, Hon. Rohitha Bogollagama, the then Minister of Foreign Affairs, has stated the objective of
introducing this Act. Accordingly, even though the government of Sri Lanka had signed the International Covenant on Civil and Political Rights Act as a government, it had not been recognized by our constitution and legal empowerment of certain rights mentioned in the International Covenant on Civil and Political Rights Act was stated as the objective.

Section 3 of our Act is similar to Sub section two of Section 2 of the International Covenant on Civil and Political Rights. That this should be interpreted together with Section 19 of the International Covenant on Civil and Political Rights is an accepted fact. That is, law has accepted that this has to be interpreted within freedom of speech and expression.

In this regard United Nations General Assembly has prepared plan of action on hate speech in September 2020 and in that hate speech has been identified in three categories.

That is,
1. Hate speech that seriously incite genocide (The severest form of hate speech)
2. Hate speech at the intermediate level.
3. Hate speech at the bottom level.

It has been mentioned in the United Nations Strategy and Plan of Action on Hate Speech statement of September 2020 that I have explained above, that specially when determining whether a statement is hate speech or not, for incitement to discrimination against a target group through such statement to exist, the hate speaker, an audience and the target group should exist.

Accordingly, there should be an immediate threat of subjection of the target group to enmity and violence by the audience of the hate speech. But no evidence is mentioned in the information report to the effect that the audience that participated in the event where the statement said to have been made on 01.04.2023 by the suspect relevant to this bail application.

On the other hand, with regard to the criteria to be followed in determining whether a certain statement is hate speech or not , Rabat Plan of Action introduced at the session held by the Office of the United Nations High Commissioner for Human Rights in the city of Rabat in Morocco in October 2012 is important.6 criteria have been mentioned in that to identify whether a certain statement is hate speech or not.

1. Context

• In that, whether a conflict was in existence by the time the statement in question was
made, that is a conflict regarding the target group has been created?
• Whether the said target group has been recognized by law separately?
• Whether laws to prevent discrimination in terms of international human rights principles
are in force in that country?
• How has been the conduct of media in relation to the said target group?
• Is there independent media?
• Whether an election has been declared?
• How will this target group act within that election?

It has been mentioned that the context can be considered in the light of the answers received in reply to these questions.

2. Speaker, that is power held by the person said to have made the statement in society to entice, whether he is a national leader, a politician, a government official, a religious leader, a social media activist, his reputation within the society and the relationship that exists between the said speaker and the target group,

3. Intention of the speaker

4. Content and form

5. Extent and magnitude of expression

6. Likelihood including imminence to incite

Accordingly, when the suspect named Natasha Edirisooriya who is connected to this bail application is considered, it has not been mentioned in the first report that there was a conflict situation in society in relation to Buddhists during the period when this statement is said to have been made. At the same time, when we consider whether there was recognition in society for the speaker, until the programme called Mdabhimanaya which contained this statement was uploaded to YouTube, the B report does not indicate
clearly whether her existence was known in society.

Similarly, when the target group is considered, a CD was submitted on behalf of this suspect and the Court observed that the audience that participated in this programme were people who participated only to laugh or to be entertained. No evidence has been established through the B report to the effect that subsequent to this programme said to have taken place on 01.04.2023 its audience had engaged in any hostility or violence in relation to the target group or against the target group which is Buddhists.

Some social groups, ethnic, religious groups, underprivileged groups may feel hurt through a statement made by certain individuals. At the same time, some may feel insulted. It has been accepted in international law that mere hurting of feelings, mere causing of defamation and mere making of a reckless or irresponsible statement by the male or female speaker does not make it relevant to Section 3 (1) of International Covenant on Civil and Political Rights Act.

Accordingly, when the entire statement made in the programme by the suspect named Natasha Edirisooriya is considered, it doesn’t appear at all to be have been made with the intention of incitement of the audience for violence or hostility targeting Buddhists. Therefore, how Section 3 (1) of International Covenant on Civil and Political Rights Act was used in relation to this suspect is a serious issue.

At the same time, Section 291 (a) and 291 (b) state as follows.

291 (1) “Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

291 (b) “Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of persons, by words, either spoken or written, or by visible representations, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

The following note by Gour regarding Deliberate and Malicious Intention on page 2335 of the 3rd Volume of the 11th Edition of his book titled Penal Law of India is important.
“An act may be deliberate without being malicious and it may be Malicious without being deliberate, since it may be reckless without being intentional. What is required to constitute the offence is the presence of both.”

Accordingly, it is not possible to act under not only Section 3 of the ICCPR Act but also Section 291(a) of the Penal Code for mere making of a statement that hurt the feelings of a certain race, religion or group.

Especially just because a complaint is made by a Buddhist monk or another religious leader or an influential person in society, it is not the task of the investigator to arrest a person based on that alone.

Specially, an officer who conducted an investigation under Section 116 of Criminal Procedure Code may arrest without a warrant if the information presented is based on acceptable facts and if he has committed a cognizable offence.

According to the facts of this case, the task of the investigator is not to arrest a person on the mere receipt of a complaint but to consider the international interpretations to see whether hate speech has actually been committed under Section 3 of International Covenant on Civil and Political Rights Act in line with the international accountability and obligations of our country.

The international obligation of our country has been mentioned especially through the statement made by Minister Rohitha Bogollagama in presenting the International Covenant on Civil and Political Rights Act to Parliament. Accordingly, in the enforcement of this Act as well, the law enforcement institutions and institutions for administration of justice have the responsibility of acting in a manner that fulfills the said intention of international accountability of Parliament or the legislature. It should be noted that similarly,
when a suspect is arrested on a cognizable offence and produced by the investigation officers, that is the police officers, it is the responsibility of the Court to act with a judiciary mind in relation to the charges made against the male or female suspect and take further steps, but not to remand on mere production by the investigators.

Thus, today the learned Senior Deputy Solicitor also based his submission on the very statement submitted on behalf of the petitioner claiming to be the statement made by suspect. When that statement is taken as a whole, it does not appear in any way to be hate speech that targets the Buddhist society.

Thus, I determine that this matter itself is a matter exceptional enough to enlarge the suspect on bail.

Therefore I determine as the statements said to have been made by this suspect which is relevant to this bail application prima facie does not amount to hate speech under Section 3 (1) of International Covenant on Civil and Political Rights Act, it is not also proper for this suspect to have been remanded up to now.

Accordingly, I order the learned Magistrate that the suspect be enlarged on personal bail of one hundred thousand rupees.

I direct the Registrar of this Court to send copies of today’s order to the petitioner subject to charges, and to the respondents free of charge and to refer of today’s order to the relevant Magistrate Court.

(A.K.M.Patabandige)
High Court Judge
High Court No.4
Colombo.
05.07.202

( This is an unofficial translation of the Bail Order provided in Sinhala language)

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