Photo courtesy of Global Voices
Nathasha Edirisooriya, a young female standup comedian, was arrested under the International Covenant on Civil and Political Rights (ICCPR) Act no. 56 of 2007 on May 27, 2023 for comments during a performance at a comedy show on April 1, 2023. After adverse comments on her performance, she apologized for any hurt it may have caused anyone. But based on complaints to the police, she was arrested on May 27 and remanded until she was ordered to be released on bail on July 5 by the Colombo High Court. Her case will be coming up before the Fort Magistrate Court on November 15.
Nathasha had not advocated or propagated religious hatred (Article 3.1 of the ICCPR Act) and her comments don’t have elements that constitute incitement to discrimination, hostility or violence (Article 3.2 of the ICCPR Act). The High Court bail order for Nathasha notes that there is no evidence that those who attended her performance has engaged in violence and that there is no information about a conflicting situation in society in relation to Buddhists during the period she had made the statement.
Background
In August 2019, the Human Rights Commission of Sri Lanka (HRCSL) stated that any form of expression protected under the constitution cannot be proscribed under the ICCPR Act and hence expressions that “shock, offend or disturb” a member of a certain nationality, race or religion cannot be proscribed on that ground alone. The HRCSL had also stated that the six part threshold test as contained in the Rabat Plan of Action should be adopted in order to determine the forms of advocacy that fall within the scope of Section 3 of the ICCPR Act. The six part threshold test consists of consideration of the context, speaker, intent, content and form, extent and imminent harm and this test has been applied to Nathasha’s case by the High Court judge who had ordered her release on bail. The HRCSL has also stated that advocacy of hatred should not be proscribed under Section 3 of the ICCPR Act unless it constitutes incitement to discrimination, hostility or violence that is intentional.
The police have used the ICCPR Act to arrest persons purely based on complaints made by persons who seem hellbent on revenge against persons holding critical or different opinions from themselves and their beliefs. The ICCPR Act doesn’t allow magistrates power to grant bail to those arrested under the ICCPR Act. But it’s important to note that the Supreme Court had expressed concern about magistrates issuing remand orders mechanically simply because police want such orders made and stated that remanding is a judicial act which requires judicial mind to bear on the matter before depriving a person of liberty (SC FR 488/98). The Supreme Court has also stated that “no warrant of arrest should be lightly issued by a Magistrate simply because a prosecutor or an investigator thinks it is necessary” or “to satisfy the sardonic pleasure of an opinionated investigator or a prosecutor” (SC FR 595/98).
However, in practice, magistrates don’t seem to be refusing the police’s requests to remand persons under the ICCPR Act and thus the police had been able to act as judge and punish suspects with imprisonment for months. This is what happened to Nathasha and others such as social media commentator Ramzy Razeek and award winning writer Shakthka Sathkumara.
Ramzy Razeek and Shakthika Sathkumara
In September 2023, the Attorney General had decided there was no basis to press charges against Ramzy, nearly three and half years after his arrest under the ICCPR Act in April 2020 for a comment he had made on Facebook. Similarly, in February 2021, the Attorney General had decided there was no basis to file charges against Shakthika, nearly two years after his arrest in April 2019 for writing a short story. Both of them and their families had suffered immensely for more than four months during the time they were in prison and had to struggle hard to get bail through the High Court, which took more than four months in both cases. They were also compelled to live and suffer in uncertainty for nearly three and half and two years respectively while waiting to know whether charges will be filed against them. Shakthika was a government official and his employment was affected and Ramzy’s health deteriorated rapidly during his imprisonment at the height of COVID-19. Both of them have filed Fundamental Rights cases seeking relief for injustices they had endured but these cases are also subjected to prolonged delays and are both pending.
The ICCPR Act allows the High Court to provide bail in exceptional situations but as Nathasha’s Ramzy’s and Shakthika’s experiences show, this can take many months as the procedure to get bail from High Court is time consuming, costly and complicated in practice.
High Court and UN Special Procedures Observations on Nathasha’s case
In Nathasha’s case, the High Court judge who ordered her release on bail clearly stated that the speech she had made doesn’t appear to be of hate speech under Article 3 (1) of the ICCPR Act and that it’s not a hate speech against Buddhist society. The judge had emphasized that responsibility of the judiciary is to apply judicial mind to matters presented before it and that the judiciary should not remand persons purely based on requests by investigators. The judge had also stated that investigators (police) must not arrest a person simply because an influential person such as a Buddhist monk has made a complaint. It is important to note that complainants against Nathasha and Shakthika were Buddhist monks and complainant against Ramzy was from Ministry of Defense. The High Court judge had also said police should have considered whether hate speech under Article 3 of the ICCCPR Act had occurred based on international definitions and international obligations of Sri Lanka, instead of arresting Nathasha purely based on a complaint.
On June 26, 2023, a communication addressed to the government by four UN Special Procedures expressed serious concern about Nathasha’s arrest and detention (LKA 5/2023). They stated that stated that her arrest on allegations that she had expressed views deemed offensive to the majority religion (if confirmed), would amount to a violation of her right to freedom of opinion and expression, including artistic expression, protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and by Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), both ratified by Sri Lanka. They said it would also contravene Articles 3 (non-discrimination), 9 (right to liberty and security of person), 14 (fair trial) and 26 (equality before the law) of the ICCPR. In response, the government had acknowledged that the High Court judge had noted that section 3 of the ICCPR Act needs to be interpreted along with provisions related to freedom of expression and importance of ascertaining presence of grounds for a charge of hate speech before making arrests or action under the ICCPR Act. But the government has refused to acknowledge the injustice done to Nathasha nor indicated corrective actions that it will take such as commitment to discharge her and prevent such incidents in the future.
Opportunity to right a wrong
Nathasha and her family and loved ones had suffered immensely during her unjust imprisonment for about 40 days. Even after release on bail, she has to live in uncertainty, worrying about possibility of Attorney General keeping the case hanging over her head for years as was the case with Ramzy and Shakthika. There’s also a possibility the Attorney General may file charges against her. Just before and after her arrest, she had a lot of hostility directed against her and the continuity of the case has direct bearing on her physical, mental and social wellbeing as well as her ability to continue her personal and professional life freely without fear.
After five and half months, the Attorney General could make it clear whether he intends to file charges against Nathasha or has no basis to file charges as indicated after several years in Ramzy’s and Shakthika’s cases.
Although the ICCPR Act doesn’t allow magistrates to grant bail, a magistrate could consider release of persons brought before them under the ICCPAR Act. Thus, the magistrate could consider Nathasha’s release, considering whether statement she has made falls under the ICCPR Act, based also on comments by the High Court judge, UN Special Procedures and others.
November 15 could become a turning point to even belatedly reverse the injustice done to Nathasha and set a precedent to prevent further abuses through the ICCPR Act in Sri Lanka.