No Buddhist jokes please: Sri Lanka unleashes draconian law to silence artists, YouTubers

On May 28, Natasha Edirisooriya, a Sri Lankan stand-up comedian, was arrested at the Bandaranaike International Airport, just outside Colombo, while attempting to leave the country. Her arrest by the Criminal Investigation Department (CID) came after several complaints had been lodged with the department that the comedian had insulted Buddhism and Buddhist Girls’ Schools during one of her shows in Colombo in early April.

After the video went viral in late May and caused outrage, Edirisooriya issued a public apology, but several police complaints had already been lodged against her by then. Not long after her arrest, Bruno Divakara, creator of the popular YouTube channel “SL VLOG,” which had shared clips from the show that included the offending segment, was also arrested. Both continue to remain in custody after being remanded by court.

Draconian law

Edirisooriya and Divakara were arrested under the International Covenant on Civil and Political Rights (ICCPR) Act, a controversial law that was supposed to safeguard human rights but which critics say has continually been used as an oppressive tool to stifle freedom of expression. The ICCPR treaty was adopted by the United Nations General Assembly in 1966 and it came into force in 1976. Sri Lanka became a signatory to ICCPR in 1980. The then Sri Lankan government introduced the ICCPR Act in 2007, purportedly with the aim of giving effect to those rights under the ICCPR which had not been recognised by the Constitution or under existing law.

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Rights groups, however, allege that the ICCPR Act has been used to curtail freedom of expression in Sri Lanka, with authorities using it selectively to take action against those expressing ideas that are in conflict with the island’s dominant Buddhist faith. Some have even likened it to an anti-blasphemy law.

“The right to freedom of expression applies to information and ideas of all kinds, including those that may be deeply offensive. Sri Lankan authorities must ensure that all laws, policies and practices aimed at combatting advocacy of hatred are drafted and applied in a strict manner so that they do not lead to unjustified restrictions of freedom of expression of minorities,” Amnesty International (AI) said in a statement, expressing concern over Natasha Edirisooriya’s arrest.

“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,” insisted AI.

Politicians defend ICCPR

Many government politicians defended the arrests, with some claiming that the ‘aragalaya’ (struggle) last year that ousted former president Gotabaya Rajapaksa had encouraged young people to insult Buddhism. Sri Lanka Podujana Peramuna (SLPP) MP Namal Rajapaksa, son of former president Mahinda Rajapaksa, alleged that the ‘aragalaya’ had normalised the insulting of Buddhism because it was financed by a “third party.” Former Minister Rohitha Abeygunawardena went further, calling for Edirisooriya and others who allegedly insulted Buddhism to be given “punishments practiced during the times of kings”- specifically impalement.

Edirisooriya and Divakara are not the first to be arrested under the ICCPR Act. There have been several other prominent cases over the years. In January this year, YouTuber Sepal Amarasinghe was arrested under the Act and spent more than a month in remand custody over alleged defamatory remarks he made regarding the Temple of the Sacred Tooth Relic in Kandy, one of the holiest Buddhist places of worship in Sri Lanka. He was subsequently released after issuing an unconditional apology in court over his remarks.

Slew of arrests

One of the most famous cases was that of award-winning Sinhala writer Shakthika Sathkumara, who was arrested in 2019 after he published a short story online that was deemed insulting to Buddhism. Sathkumara was arrested under the ICCPR Act on charges of inciting religious hatred through the contents of his short story, which touched on sexual abuse within the Buddhist clergy. He spent 127 days in remand custody before charges against him were finally dropped on February 9, 2021 – 22 months after his original arrest.

Sathkumara’s case drew widespread international attention and in May, 2020, the UN Working Group on Arbitrary Detention issued a statement criticising his detention, stating that it was in violation of international human rights law. The Supreme Court recently gave leave to proceed to a fundamental rights petition filed by Sathkumara over his arrest.

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Another infamous case involving the ICCPR Act was the arrest of Abdul Raheem Masaheena, who was held for wearing a dress depicting a ship’s helm, but which the police officer who arrested her mistook for the ‘Dharmachakra,’ the most important symbol in Buddhism. Masaheena, a Muslim woman, was arrested on May 17, 2019, less than a month after the Easter Sunday attack, at a time when the Muslim community was viewed with widespread fear and suspicion. She spent several weeks in remand custody under the ICCPR Act before authorities admitted their error and she was released.

Misreading of Act?

All those who have been arrested under the ICCPR Act have been taken into custody under Section 3 of the Act. Section 3 is modeled on Article 20 of the ICCPR treaty which prohibits any propaganda for war and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. However, ICCPR’s Article 19 clearly notes that everyone shall have the right to hold opinions without interference and shall have the right to freedom of expression.

The ICCPR Act in Sri Lanka though, makes no mention of this. Section 3 of the Act notes that “No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” People who are suspected of engaging in such activities can be arrested without a warrant under the Act and can only be given bail by a high court.

“Sri Lankan authorities are reading Section 3 of the ICCPR Act with Article 20 of the ICCPR treaty, but we have always stressed that Section 3 should be read together with both Articles 19 and 20 of the ICCPR treaty,” journalist Tharindu Jayawardhana told The Federal. He noted that ignoring the freedoms enshrined in Article 19 of the international treaty has created a dangerous situation where anyone can be arrested for expressing an opinion that authorities could broadly interpret as inciting racial or religious hatred.

In August 2019, the Human Rights Commission of Sri Lanka (HRCSL) issued guidelines to the Attorney General and the Inspector General of Police (IGP) for the “fair and effective enforcement of Section 3 of the ICCPR Act.” Jayawardhana noted that the guidelines make it clear to authorities that when enforcing the ICCPR Act against a person, they must be fully satisfied that such person acted with the “intention” of inciting racial and religious hatred that constitutes incitement to discrimination, hostility or violence.

Jayawardhana, who is president of the Young Journalists’ Association (YJA), said that in Natasha Edirisooriya’s case, some parties had selectively edited certain parts of the stand-up comedy routine she performed during a show in April to make it appear as if she is making derogatory remarks against Buddhism. They had then distributed the clip on social media towards the end of May, making it go viral and attracting the ire of hardline Buddhist groups.

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“Actually, it is the people who edited this clip and shared it online who should be taken into custody under the ICCPR Act since they are the ones who incited racial and religious hatred. There were also persons who openly called for Natasha Edirisooriya’s death and advocated violence against her. They too should have action taken against them under the ICCPR Act.”

The ICCPR Act is being used in a manner that is the complete opposite of its supposed intention, Jayawardhana stressed. He said the YJA has already lodged a complaint with HRCSL about the police arresting Edirisooriya in violation of the guidelines issued by the Commission on taking action under the ICCPR Act.