Civil rights activists have raised concerns over the recent arrest of controversial female stand-up comedian Nathasha Edirisooriya, over an alleged defamatory comment made by her related to Buddhism, under the International Covenant on Civil and Political Rights (ICCPR) legislation.
They point out that the ICCPR was originally aimed at enabling people to enjoy a wide range of human rights, including those relating to freedom from torture and other cruel, inhuman, or degrading treatment or punishment and fair trial rights. Activists allege that instead of ensuring people’s freedom of expression, the authorities are using international law as a tool to restrict the rights of the people.
Stand-up comedian Edirisooriya was arrested by the Computer Crime Investigation Division of the Criminal Investigation Department (CID) when she had arrived at the Bandaranaike International Airport (BIA) while attempting to leave for Singapore on Sunday (28 May), following a backlash against her comments, which were made early April at a comedy performance in Colombo.
On the heels of the fallout and resultant political pressure, the Police moved to arrest Edirisooriya allegedly for creating discord between communities by making insulting remarks about Lord Buddha/Prince Siddhartha during a comedy routine at a leading girls’ school in Colombo. When produced before the Colombo Magistrate, the suspect was remanded till Wednesday (7).
Speaking to The Sunday Morning, Committee for Protecting Rights of Prisoners (CPRP) President Attorney-at-Law Senaka Perera said the ICCPR was initially used to enhance the communal harmony in the country, but was at present being used as an instrument to gain cheap political advantage.
“The ICCPR is being misused by the authorities as a tool to witch-hunt in order to gain cheap political advantages,” he said, adding that the Human Rights Commission of Sri Lanka (HRCSL) had formulated separate guidelines for the Police on how arrests should be made under the ICCPR Act. “We don’t see them practising the guidelines now,” Perera noted.
“The risk is that when a person is arrested under the ICCPR Act, that person cannot be bailed out by a lower court and in this case, the power is vested with the High Court,” he explained.
The CPRP President further stated that they were planning to take legal action against the Inspector General of Police (IGP), demanding the application of the guidelines given by the HRCSL on the ICCPR.
Hate speech
Rights activist and Attorney-at-Law Nuwan Bopage said that the ICCPR had been introduced to provide an assurance to protect the civil and political rights of citizens, but the use of Section 3 of the act was questionable as it was being used contrary to the international agreement to which Sri Lanka had become a party.
“The objective of the act is to protect the people’s freedom of speech. The law should be applied to protect the rights of the people who have used their freedom of speech/expression, if the other party is questioning the credibility of the statement or misinterpreting such a statement,” he said.
“If we consider the definition of hate speech, nobody can just say that a statement is hate speech unless it fulfils the criteria of such a statement. To be hateful, a statement not only has to be an intentional statement but also an irrational statement. There are certain factors that should be fulfilled for it to be hate speech,” he added.
Bopage stressed that there were many such similar cases where the ICCPR had been misused including those of Shakthika Sathkumara, Sepal Amarasinghe, and Ramzi Razik.
He went on to say that there were serious incidents which had instigated communal unrest in the past, but there had been no arrests to date.
Tool of repression
Meanwhile, Amnesty International has raised concerns claiming that the ICCPR is being abused by Sri Lankan authorities “as a tool of repression to target minorities”.
In a tweet on the arrest of comedian Nathasha Edirisooriya, Amnesty stated that the right to freedom of expression applied to information and ideas of all kinds, including those that may be deeply offensive. It further stated that Sri Lankan authorities must ensure that all laws, policies, and practices aimed at combating advocacy of hatred were drafted and applied in a strict manner so that they do not lead to unjustified restrictions of freedom of expression of minorities.
“Section 3(1) of the ICCPR Act, which introduces the ICCPR into domestic legislation, has been used time and time again to restrict freedom of expression. It prohibits advocacy of hatred that constitutes incitement to discrimination, violence, or hostility. Advocacy of hatred is more than just the expression of ideas or opinions that are hateful towards members of a particular group, it requires a clear showing of intent to incite others to discriminate, be hostile toward, or commit violence against the group in question.
“When the expression fails to meet this test, even if it is shocking, offensive, or disturbing, it should be protected by the state. The ICCPR Act was enacted to introduce into domestic legislation the obligations that Sri Lanka committed to abide by after ratifying the human rights treaty. Ironically, the Sri Lankan authorities are using it instead as a tool of repression to target minorities. This must end. Nathasha Edirisooriya must be released and any pending charges against her must be dropped immediately,” Amnesty stated.
Violating the convention
The Centre for Policy Alternatives (CPA) also expressed deep concern over the arrests of individuals under the ICCPR.
Urging the authorities to desist from efforts to restrict fundamental rights, the CPA noted that it was deeply concerned with the recent arrest of Nathasha Edirisooriya reportedly under the provisions of the ICCPR Act, the latest move to stifle freedom of speech in the guise of protecting religious harmony.
CPA noted that this was not the only arrest under the ICCPR Act in recent times where persons had reportedly been arrested for content that posed a threat to religious and national harmony and national security.
CPA also noted media reports indicating the introduction of new laws meant to safeguard and uphold religious harmony in a context where there was a plethora of laws, while the actual challenge was not due to a lack of laws, but due to the lack of proper implementation of such laws and holding perpetrators accountable for incitement and violence.
CPA urged authorities to desist from efforts to restrict fundamental rights and measures that erode the rule of law and weaken Sri Lanka’s fragile peace.
Section 3(1) of the ICCPR Act No. 56 of 2007 says that no person shall propagate war or advocate national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. Section 3(2) says that every person who – (a) attempts to commit; (b) aids or abets in the commission of; or (c) threatens to commit, an offence referred to in subsection (1), shall be guilty of an offence under the act.
Further, Section 3(3) says that a person found guilty of committing an offence under subsection (1) or subsection (2) of this section shall, on conviction by the High Court, be punished with rigorous imprisonment for a term not exceeding 10 years.
As per the subsections (4), (5), and (6) of Section 3, an offence under this section shall be cognizable and non-bailable, and no person suspected or accused of such an offence shall be enlarged on bail, except by the High Court in exceptional circumstances.
The act further provides that a trial in the High Court against any person for the commission of an offence under this section shall be taken up before any other business of that court and shall be held on a day-to-day basis and shall not be postponed, unless due to any unavoidable circumstances, which shall be recorded. For the purpose of subsection (2) of this section, “abet” shall have the same meaning as in Section 100 of the Penal Code.