Within a matter of a few weeks, some Sri Lankan Buddhists seem to have come forth to fight a so-called well-orchestrated and foreign funded plot allegedly aiming to create religious divisions in the country, especially among Buddhism and other religions. While these concerns are not new and are not limited to Buddhism, certain statements made by several public figures and the interpretations of those statements have been quite successful in convincing the people, religious leaders and even politicians that this threat has reached an alarming level that it requires legal actions and even law related reforms.
Although these statements hardly said anything that has not already been said by the public, they attracted widespread attention, especially on social media. Earlier this month, pastor Jerome Fernando said that the Buddha was merely an ‘enlightened one’ and that Jesus was the ‘light’ that the Buddha was looking for, and that therefore, Buddhists should embrace Jesus. During an event for his followers, he made similar statements about Islam and Hinduism as well, which resulted in the law enforcement seeking to arrest him for allegedly insulting religions. There is a pending arrest warrant and foreign travel ban on Fernando who is overseas and has since filed a Fundamental Rights petition in the Supreme Court seeking the prevention of imminent arrest. Meanwhile, stand-up comedian Nathasha Edirisooriya, during an event for a limited audience, questioned certain aspects of Buddhist literature, among others, which resulted in her arrest last week and remanding as well as severe opposition from the public, not only against her but also the organisers of the said event and certain other local stand-up comedians that have spoken about religious beliefs earlier. This spate of concerns over allegedly insulting religions involved a Buddhist monk too. This week, Ven. Rajangane Saddharathana Thera was arrested and remanded for making statements that were allegedly detrimental to religious harmony.
Whether the said alleged threats or insults are perceived ones or real is yet to be discussed properly. However, they are all being investigated for allegedly insulting religions and trying to create religious divisions, and there is now a discussion as to how the law should and can deal with religious insults, and the criticism and questioning of religious beliefs. The Daily Morning spoke to a legal professional and a Buddhist academic to discuss these concerns.
- AAL Thishya Weragoda expounds on the need for a reasonable, commonsensical approach based on modern societal standards of co-existence
According to attorney-at-law (AAL) Thishya Weragoda, who has been vocal about the freedom of expression, criticising religions or religious beliefs is a matter that requires some level of prudence both at the speaker’s and the listener’s ends. He said that “while Fernando probably should not have said it in that particular fashion, other people also should have taken it with a pinch of salt.”
Following are excerpts from the interview:
Q: Many parties demand legal actions against Fernando, and the International Covenant on Civil and Political Rights (ICCPR) Act is one of the laws that many say can be used to prosecute him. Can the ICCPR Act be used to institute legal actions against him?
A: Many forms of crimes could fall under more than one law, in addition to the provisions of the Penal Code. Now, in this particular situation, some say that this so-called offence is covered in the ICCPR Act. However, I personally do not think that this falls under the ICCPR Act, because the ICCPR Act has been enacted, in principle, to protect religious freedom. It is not in place to be used in these types of situations. It could be used, for example, in case a statement was made that the followers of a certain religion have no right to live in Sri Lanka or in the event places of worship of a certain religion have been damaged, but not to nab a person who, in a not so public place, has made an irresponsible statement.
I am of the opinion that if cases need to be filed against any person for damaging religious harmony, cases should be filed under the criminal offences specified in the Penal Code. The ICCPR Act is in place to prevent incidents such as ethnic cleansing that occurred in Bosnia during conflicts, or in other words, to protect civil and political rights. The freedom of expression is part of civil rights. My feeling is that taking actions against these types of incidents is not the purpose of either the ICCPR Act or the international ICCPR Treaty. It is in place to protect people, not to punish them. For example, if Fernando’s religious place is being attacked, in that case, this law can be used. The ICCPR Act is like a shield that is in place to protect if someone is in harm’s way and hence the rigourous legal provisions, whereas, the Penal Code is more like a sword that is in place to punish offenders.
Q: If the ICCPR Act is not the best law to be used in this situation, what is?
A: The loss of religious harmony is a very dangerous situation, and that is why it is considered a serious offence (in the ICCPR Act) in which getting bail is difficult under this Law. Instead of the ICCPR Act, we can look at the Penal Code which provides for legal actions in its Sections 290 to 292 regarding religious harmony. Now, the fact of the matter is, if arrested under the ICCPR Act, the Police could just remand a person and there is no way to get bail easily. However, in order to file cases under the applicable Penal Code Sections, the Attorney General’s (AG) consent is required, and the Police cannot take a decision on their own to file cases. Those legal provisions have been designed in that manner in order to make it impossible for the Police to arbitrarily put people behind bars. Now, what happens in many cases is that the Police arrest people and then seek the AG’s advice, and in many cases, the AG instructs to release the suspect. However, by the time these instructions are received, the suspect has already spent a long time in remand prison. That is why the Penal Code Sections require the AG’s consent, so that the AG can perform a reasonable assessment as to whether legal actions against a suspect are justifiable.
Q: You mentioned that the freedom of expression is closely related to this issue. What is your opinion about insults, criticism and the questioning based aspects of this issue?
A: Every person has the freedom of thought, conscience, and religion, and those are inalienable. No one can touch the Fundamental Rights under Article 10 of the Constitution. Under Article 14 of the Constitution, the freedoms of expression and association are protected.
Even Fernando and followers of his religion have those freedoms. In Fernando’s case, it was merely a debate as to whose god is better. A court cannot decide that. Every religion may have extremist elements who could get angry even at the mentioning of the name of their religion. That is what happens in the Western society where it has been continuing to try to be politically correct and now, we have to speak in a manner that does not hurt every person’s sentiments. So, that is going to the other extreme. What is required is what is considered reasonable by the modern standards of society.
Buddhist monk Ajahn Brahm was once asked what he would do if someone flushed a holy Buddhist book down a toilet, and he said that he would call a plumber first, because it is only a matter of the toilet being blocked. What is more, during the Buddha’s time, someone severely scolded the Buddha. The Buddha asked that person what he would do if he got a gift for someone and that party did not accept the gift. His response was that he would take it home if it was not accepted as it belongs to him. Buddha responded that in the same way, the Buddha refuses to accept his insults and that he should therefore take his insults with him. We should know what we are arguing about. If someone claims that the concept of love does not exist in Buddhism, one can take a logical approach to say that the love that Jesus Christ mentioned is included in the metta (loving kindness), karuna (compassion), muditha (sympathetic joy) and upekkha (equanimity) qualities in Buddhism. Or, one can even respond by saying that if there is a concept called love in someone’s religion, it is good, and that there is no need to compete.
I would say that there is nothing for us to worry about in this situation. We have to realise that there should be common sense too. These do not constitute an insult, and there is no realistic reason to go after these claims. Rights are to be shared. Rights cannot be exercised alone, especially religious rights. There has to be co-existence. Fernando probably should not have said what he said in that particular fashion. However, other people should have taken it with a pinch of salt.