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

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 arrested 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.