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Selective Application of ICCPR Act in Sri Lanka to restraint Freedom of Expression

 Madhuri Ranasinghe
In May 2023, the stand-up comedian, Natasha Edirisoorya’s arrest under the ICCPR Act sparked a significant division within Sri Lankan society. Numerous Sri Lankan media outlets sensationalized the news, creating a sense of unease among the Sri Lankan Buddhist community, who perceived Natasha’s speech as derogatory and defamatory towards Buddhism. Natasha is not the first victim of Sri Lanka’s selective application of the ICCPR Act; many others in the country, ranging from writers and journalists to politicians, have also been victims.

The first Sri Lankan to be charged under this act was the current parliamentarian Tissa Attanayake, following an allegation of forged documents which was accused by the complaint going on racial and religious hatred. Shakthika Sathkumara was arrested on 01 April 2019 on charges of producing a short story that was deemed defamatory, as it depicted homosexuality and child abuse within Buddhist temples in Sri Lanka. The Attorney General denied his bail request twice following the non-bailable provision in ICCPR Act. According to the law, only a high court judge can grant him bail. However, due to delays in the Sri Lankan justice system, it could take months before he has the opportunity to appear before a high court.

These instances shed light on the alarming misuse or the isolated conduct of the ICCPR Act, which is intended to safeguard the civil and political rights of citizens, including freedom of expression, freedom from discrimination, the right to a fair trial, freedom of association, and other fundamental human rights. Moreso, the selective application to parties to incite different sentiments in the community while disregarding major contexts of violations in communal settings sets a differentiated standpoint, inequality, and loss of trust among the community toward law and order.  

The ICCPR Act was introduced in Sri Lanka as a prerequisite for obtaining GSP Plus, a special incentive aimed at promoting sustainable development and good governance in developing countries. The act requires the implementation of 27 international conventions on human rights and labour laws. The Act typically undergoes a five-year review, with the most recent one taking place in March 2023. One crucial provision, Section 3(1), criminalizes the dissemination of war propaganda and the advocacy of hatred based on nationality, race, or religion if it promotes discrimination, hostility, or violence.

Regrettably, arrests have been made under this provision without proper consideration of whether the speech in question genuinely incites such actions, resulting in a non-bailable offence that could land the person in remand prison for an extended period of time due to delays. This practice directly infringes upon the fundamental right to freedom of speech, which is safeguarded by Article 14 of the Sri Lankan constitution and Article 19 of the ICCPR. Hence, this act is predominantly misused to restrict fundamental human rights in the above stances which inherently depicted the freedom of expression.

In order to address the issues raised in the aforementioned context, it is crucial to bring these concerns to the attention of the parliament. This will serve to highlight the potential violations of fundamental human rights that may be occurring. Additionally, it is advisable to engage in discussions regarding the potential risks associated with granting local police excessive authority over these rules. It is wise to start a  proper campaign on the enactment of the ICCPR Act to instigate appropriate revisions on time.

Nevertheless, there are ongoing discussions surrounding the worrisome trend of enacting laws with provisions that can be easily misused, such as non-bailable provisions that deny bail through magistrates, resulting in a certain form of punishment for the accused. Moreover, in the Sri Lankan context, the application of the aforementioned act seems to target specific parties while disregarding many other cases, some of which may be even more alarming. Several legal and social stakeholders have questioned the intentions of certain parties and have expressed concerns about unethical conduct within the community, particularly with regard to targeting various ethnic, racial, religious, and cultural contexts.

While freedom of expression is a fundamental right in democratic societies, it is important to recognize that it is not absolute. It is crucial to differentiate between the boundaries of freedom of expression and the principles of the rule of law. Criticizing and challenging ideas and the status quo are generally protected even if it is offensive and unpopular unless the intention is to incite violence or promote discrimination among individuals.

Across the globe, numerous incidents have unfolded that highlight the complexities surrounding the concept of freedom of expression, particularly within the religious context. One prominent example is the publication of the controversial book, “The Satanic Verses,” authored by Indian-born writer Salman Rushdie. This literary work stirred immense controversy due to its exploration of sensitive religious themes, leading to protests and debates regarding the limits of artistic expression and religious sensitivities.

The case of “The Satanic Verses” exemplifies the delicate balance between the right to freedom of expression and the need to respect religious beliefs and practices. It prompts us to contemplate the diverse perspectives on how best to navigate this complex terrain while safeguarding both the creative freedom of individuals and the sanctity of religious sentiments. It continues to provoke thoughtful discussions, legal debates, and societal introspection on how to protect and uphold the fundamental right to express oneself while also fostering mutual respect and understanding among diverse cultures and faiths.

Therefore, it is necessary to contemplate whether it is justifiable to disregard one person’s sentiments in order to safeguard another’s freedom of expression. Ultimately, we must ask ourselves if it is appropriate for us to regulate ethical conduct through laws that restrict the freedom of expression. To this day, the topic continues to spark fervent debates among scholars, as they delve into its intricacies and contemplate the diverse perspectives it encompasses.