Article – The Wire: How a Human Rights Law Became a Tool of Repression in Sri Lanka

The ICCPR Act, modelled on an international human rights treaty meant to prohibit national, racial and religious hatred, has been distorted in Sri Lanka to punish blasphemy and target minorities.

The recent arrest of the YouTuber Sepal Amarasinghe has drawn attention to Sri Lanka’s International Covenant on Civil and Political Rights (ICCPR) Act. Amarasinghe is accused of making disparaging comments about the Sacred Tooth Relic in Kandy, which many Buddhists venerate. His arrest is not the first time the ICCPR Act has been deployed to punish speech deemed to be offensive to Buddhism. In 2019, the writer Shakthika Sathkumara was similarly arrested for publishing a fictional short story titled ‘Ardha’ (‘Half’). The story was considered offensive to Buddhism and the Buddhist clergy as it depicted sexual abuse in Buddhist temples.

Both Amarasinghe and Sathkumara were arrested under Section 3 of the ICCPR Act, while also facing other charges. This section is modelled on Article 20 of an international human rights treaty bearing the same name, to which Sri Lanka is party. How did a law that was originally crafted to protect human rights become a repressive tool to punish blasphemy in Sri Lanka?

In the aftermath of the Second World War, member states of the United Nations made commitments to prohibit hate speech that incited violence against people on the basis of their identity. The Holocaust taught the world that hate and propaganda against a community could lead to terrible consequences, including mass expulsion and genocide. This experience formed the backdrop to Article 20 of the ICCPR.

Article 20 (2) obliges states to prohibit the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. In 2007, Sri Lanka attempted to fulfil its obligation as a signatory of the treaty by enacting Section 3 of the ICCPR Act. Despite being modelled on Article 20 (2), Section 3 of Sri Lanka’s ICCPR Act contains serious weaknesses.

First, it does not differentiate between the three types of incitement found in the international treaty. States are not necessarily expected to replicate the treaty and prohibit the different types of incitement in identical ways. For example, the penalty for inciting violence could include incarceration, whereas the penalty for inciting discrimination or hostility could be the revocation of a broadcast license or the restriction of a social media account. Yet, Section 3 (1) of Sri Lanka’s ICCPR Act clumsily lumps each type of incitement defined in the international treaty into a common offence.

Second, Section 3 (4) of the ICCPR Act, allows for a person to be arrested for an alleged offence without a warrant. The same section also makes the offence non-bailable, meaning that only the High Court, rather than a magistrate, may grant bail to anyone arrested. As a result, this section facilitates the arbitrary arrest and detention of an individual even without concrete evidence that the individual has committed an offence. Such detention can be prolonged until they are produced before a High Court judge. In effect, the section permits the state to punish individuals without ever prosecuting and convicting them.

Weapon against blasphemy

Blasphemy can be defined as an act that is sacrilegious or insulting towards a divine being or sacred object. The term “blasphemy” is not found in Sri Lankan law. Yet Section 290 of the Penal Code and Section 31 of the Antiquities Ordinance outline offences against objects and sites considered sacred by a faith group. Both Sathkumara and Amarasinghe were arrested on suspicion of committing offences under the Penal Code in addition to Section 3 (1) of the ICCPR Act. These offences operate on the basis that a physical or verbal attack against a sacred object or site can insult the faith concerned or offend the religious susceptibilities of the faith group. They clearly evoke a prohibition on blasphemy.

In Sri Lanka, pseudo-blasphemy laws have become majoritarian tools that are selectively applied to protect the country’s dominant faith. Buddhism, and Buddhist clergy, objects and sites are typically protected under these laws. Rarely do we encounter the enforcement of these laws when an object or site associated with another faith is attacked. For instance, no one involved in the destruction of the 200-year-old Pallakele Masjidhul Laafir Jummah Mosque during the 2018 anti-Muslim violence in Kandy District appears to have been prosecuted.

Not fit for purpose

The ICCPR Act has nothing to do with blasphemy. The offence of ‘incitement’ involves speech that targets a

Read more at  https://thewire.in/south-asia/how-a-human-rights-law-became-a-tool-of-repression-in-sri-lanka

Also read https://www.journo.lk/an-inquiry-into-the-misuse-of-the-iccpr-act/