On courageous judicial reasoning and Sri Lanka’s ICCPR Act

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This week’s order of the Colombo High Court granting bail to comedian Nathasha Edirisooriya imprisoned under Section 3(1) of the much abused International Covenant on Civil and Political Rights (ICCPR Act, 2007) for commenting ‘disrespectfully’on Buddhism, is a fine example of legal rectitude if not basic judicial commonsense.

Understanding the limits of the law

The pages of the court order must be pinned up high in the offices of Sri Lanka’s police command throughout the land. Perhaps (and only half in jest), this may be the first act of the hopefully-to-be extended Inspector General of Police which may mercifully see an end to nasty quarrels over succession by subordinates marked only by their extraordinarily bad human rights records and kowtowing to politicians.

But to return to the focus of this column, the ICCPR Act has been recklessly and ridiculously used in Edirisooriya’s case and many others for purposes that are completely contrary to its aim. To be clear, that is an entirely different matter from the question as to whether the impugned remarks qualifies as good humour or not. As subjectively assessed, the remarks were tasteless at best and crude at worst. Even so, it was not the quality of comedy that was on trial.

What the High Court found fault with, in a lengthily reasoned order, was the subversion of Section 3(1) of the ICCPR Act. That Section unambiguously sets out the elements of the offence, prohibiting the propagation of war or the advocacy of national, racial or religious hatred which constitutes incitement to discrimination, hostility or violence. It is the caveat of ‘incitement’ that is key to its operation.

Difference between ‘offensive’ comments and incitement

Following an exhaustive examination of the material before the Court, the High Court concluded that no such incitement had been found on the facts. The remarks by Edirisooriya had evoked laughter among the audience and that the manner in which the arrest had taken place constituted a ‘serious problem.’ A laudable legal distinction was found between making derogatory comments in relation to any one group or religion and the ‘incitement of discrimination, hostility or violence.’

This was the same test as when an arrest takes place under Sections 291 (A) and (B) of the Penal Code (inter alia, uttering words with deliberate intent to wound/insult religious feelings). In an interestingly terse judicial reminder, High Court judge Aditya Patabendige noted that purely because a complaint is lodged by an influential person’, law enforcement officers are not mandated to automatically arrest in the first instance. Rather, they have to apply their mind as to whether the elements of the offence have been established.

A specific element is if malicious intent is evidenced. The absence of the application of these legal standards was held by the High Court to be an ‘exceptional circumstance’ which, under Section 3(4) of the ICCPR Act, qualified the granting of bail in the circumstances of the case. The police was also enjoined to look at the purpose of Parliament in enacting the Act and international norms relevant thereto. The reference to international norms is particularly pertinent.

Relevant legal tests to be applied

The Court refers to international texts that explain the context of Section 3(1) as reflecting Article 20 of the United Nations Covenant on Civil and Political Rights, the Covenant). The Court refers to the UN Human Rights Committee’s General Comment No 11 (1983) and the Rabat Declaration (2013) which detailed a six-part legal test to determine if there is ‘incitement.’ Applying these tests, it is concluded that in no sense  were the remarks aimed against the ‘Buddhist population’ with intent to cause hostility.

Apart from these, one text that may also have been placed before the Court is General Comment No 34 (2011). Here the Committee had pointed out that Article 20 should not be used by any country to ‘prevent or punish criticism of religious leaders or commentary on religious doctrine or tenets of faith (see para 48). These norms have generally guided international law in being exceptionally careful in restricting freedom of expressionp on the basis of ‘offensive speech.’

Decisions in that regard are too numerous to list here but this thinking is the base for a firm jurisprudential body of work that spans decades in its formulation and expansion. That apart, Sri Lanka’s ICCPR Act has a chequered history all of its own. From the start, the Act was ill-conceived. It was brought in a knee jerk and misplaced reaction by the Government to mitigate the enormously negative impact of a Supreme Court ruling (Sinharasa, 2006).

Knee-jerk mitigatory exercises by the State

This had held that Sri Lanka’s accession to the first ICCPR Protocol was an unconstitutional conferment of legislative and judicial power on an UN experts Committee. The Protocol had provided Sri Lankan citizens to lodge individual communications to the Committee to assess if any ICCPR provisions had been violated. The accession had been cannily initiated by the late Lakshman Kadirgamar as Foreign Minister in a typical exercise of soothing diplomacy in line with hundreds of other nations.

Essentially, the opinions of the Committee were purely recommendatory in nature, not giving rise to any legal consequences within Sri Lanka. However, the Singarasa decision, cuttingly termed at the time by former pre-eminent British jurist Nigel Rodley as ‘classic judicial adventurism’, turned that carefully calibrated exercise on its head. In its wake and jittery at the adverse consequences that entailed, the Government thought it fit to enact the so-called ICCPR Act.

For years thereafter, the Act remained dormant until in a fitting culmination to a series of legal misadventures, it began to be indiscriminately used to lock up critics and dissenters. This was, of course, the exact opposite of what the Covenant, a renowned global touchstone for the protection of rights, had intended. Perhaps only Sri Lanka could have engaged in such a wildly contradictory exercise with little thought to repercussions.

Calling the Sri Lanka State to account

In April this year, responding to the country’s sixth periodic state party report under the Covenant, the ICCPR Committee specifically called upon the State not to use the ICCPR Act to prosecute journalists, media workers, and human rights defenders. Sri Lanka was also called upon to ‘clarify’ the impact of the Singarasa decision. It is hoped that, this week’s High Court order may at least now, result in the pausing of these atrocious arrest practices under Section 3(1).

Ideally this should also impact positively on other prosecutions pending currently under the ICCPR Act. In fact, given the sternness with which the police is castigated by the Court, it is a matter for hilarious speculation as to what the Court’s assessment would have been if those who laughed at Edirisooriya’s comments had also been taken into custody, as threatened at the time.

That very threat shows the absurd manner in which the Sri Lanka police wield the ICCPR Act. This is much like clowns prancing around for giggling children at the bequest of their clown master (read the Minister). But the deadly intent of these arrests have resulted in poets, dissenters and critics being ‘silenced.’ The ‘chilling effect’ of the ICCPR Act has been undoubted, the cases thereon are far too many to be listed here.

Counter-productive and costly mistakes

However, in some cases, these asinine arrests have also resulted in making ‘instant social media stars’ of those who may have been better ignored. The Sri Lankan Government is currently engaging in painfully contorted ‘truth and reconciliation measures’ that do not resonate with either the Sinhala majority or the Tamil and Muslim minorities.

These exercises involve a huge amount of funds wasted on useless bodies that have no real power or impact in law.They should be wholesale replaced by reasoned legal interventions akin to this week’s High Court order outlining the proper legal use of Sri Lanka’s ICCPR Act.

If so, we may finally be on the road to a national healing process.

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