Lawyers and activists are calling the move an "overreach of the Law" and a "dangerous precedent"By Himal Kotelawala | April 2, 2019
Condemning it as a serious violation of freedom of speech, senior lawyers today accused the Polgahawela police of unprecedented overreach in the arrest of writer Shakthika Sathkumara using provisions in the International Covenant on Civil and Political Rights (ICCPR) Act.
Sathkumara, a published author and poet, was arrested yesterday (1 April) for allegedly inciting religious disharmony, following a complaint lodged by a group of Buddhist monks. The group had reportedly taken offence at a short story written by Sathkumara and published on Facebook alluding to sexual abuse in rural Buddhist temples.
Attorney-at-Law Lilan Amarakoon, who has taken a personal interest in the case though he has yet to be directly involved, told RepublicNext that the arrest was an unfair one, accusing the officer in charge (OIC) of the Polgahawela police station of impropriety.
“A police officer cannot decide on his own that an arrest should be made subject to those [ICCPR Act] provisions. He should’ve at least consulted the Attorney General’s Department first. The writer was remanded without any such legal advice being sought,” said Amarakoon.
According to the lawyer, Polgahawela police had filed the ‘B report’ – a report detailing the particulars of the arrest – at the Magistrate’s Court under provisions in Section 3 of the ICCPR Act, subsequently to which Sathkumara was remanded till 9 April.
Groups had lobbied for this move
The Buddhist Information Centre had previously written to the Inspector General of Police on 25 February this year calling for police intervention in the publication of a collection of Sathkumara’s writings. In the letter, the Battaramulla-based organisation had cited Section 3 of the ICCPR Act calling the short story in question a violation of the said provision.
The ICCRP Act (of Sri Lanka), which was ratified in 2007, seeks to give effect to certain articles in the ICCPR (as adopted by the UN General Assembly in 1966 and acceded to by Sri Lanka in 1980). Subsection (1) of Section 3 of the Act states: “No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
Subsections (2), (3) and (4) are also relevant:
(2) 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 this Act.
(3) 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 ten years.
(4) 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.
What this essentially means is that, unless the charges against Sathkumara are amended and brought under standard (magistrate) court proceedings, he can only be granted bail in the High Court – a process which, according to Amarakoon, could mean spending months in remand custody.
“A parent or relative of the defendant would have to submit a bail application in the High Court, and for a bail application to be processed in the High Court it takes about four months at least,” he said.
Senior Legal experts decry the overreach by Police
Activist and senior lawyer J. C. Weliamuna speaking to RepublicNext said the arrest and subsequent remanding of the writer seemed to be a “clear abuse of the law”.
“This is free speech. Where is the incitement [ to discrimination, hostility or violence]?”
Weliamana, too, was critical of the Polgahawela police OIC.
“If he had looked at the law objectively, he would’ve seen that this is not a matter that would come under the ICCPR Act. It must have been at the instigation of a set of extremists,” he said.
Senior lawyer Gehan Gunatillake, commenting on the arrest tweeted that it was an “outrageous abuse of the ICCPR Act.”
“The relevant section deals with incitement to discrimination, hostility or violence. Causing offence to a religious group should not be interpreted as an act of incitement. I anticipate this incident will be looked into by relevant authorities, and the ICCPR Act will not be abused to target writers and artists?” he tweeted.
Attorney-at-Law Amarakoon also called for a better mechanism to prevent such undemocratic arrests.
“Using this as a precedence, we should have a body of artists whose views are sought in an event like this,” he said.