Nathasha Edirisooriya, a Sri Lankan comedienne, was arrested by the Computer Crime Investigation Division of the Criminal Investigation Department (CID) on the 27th of May, 2023 at the Bandaranaike International Airport, Katunayake on the basis that she had allegedly “defamed” Buddhism during a performance of her show “Modibhimanaya” (Fool’s Pride) in April of this year, which was published on YouTube three days earlier.
Brought before the Magistrate’s Court, Colombo on 28th May, 2023, she was charged under Section 3(1) of the International Convention on Civil and Political Rights (ICCPR) Act No. 56 of 2007, which states “no person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”, and Sections 291A 291B of the Penal Code, which provide “deliberate intention of wounding the religious feelings of any person”, and “deliberate and malicious intention of outraging the religious feelings of any class of persons”, respectively. Edirisooriya was denied bail by the learned Magistrate and was held in remand custody until being granted conditional bail by the learned Colombo High Court Judge, Aditya Patabendi, on 05th July, 2023 upon considering a Petition filed on her behalf.
It should be noted that the learned Senior Deputy Solicitor General for the Attorney-General raised no objections to the granting of bail, but did emphasise that Section 4 of the ICCPR Act No. 56 of 2007 states that bail can only be granted under special circumstances. Taking cognizance of the fact that the Attorney-General not being opposed to the granting of bail is not in itself a reason to grant bail, and in such a situation, the Court must ensure itself that such special circumstances exist, several key factors were highlighted by the learned High Court Judge in coming to their decision.
The judgment begins by drawing attention to Rohitha Bogollagama, who was the Minister of Home Affairs at that time, who stated the purpose of bringing this Bill while presenting the International Covenant on Civil and Political Rights to the Parliament on 20.10.2007, emphasizing in particular that the Government of Sri Lanka as a Government had become a signatory to the International Covenant on Civil and Political Rights in 1980, and although we have not incorporated the same into our Constitution, a number of rights contained in this Act are legally enforceable in Sri Lanka.
It then notes that Section 3 of our Act is similar to the second subsection of Article 20 of the International Covenant on Civil and Political Rights, and holds that it is recognized that this provision should be interpreted in line with Article 19 of the International Covenant on Civil and Political Rights. That is, the law has accepted that this should be interpreted within the context of freedom of speech and expression.
The learned High Court Judge thereafter draws attention to the United Nations (UN) Strategy and Plan of Action on Hate Speech established in September, 2020 which recognizes three tiers of hate speech, and holds in particular that when determining whether or not a statement amounts to hate speech, there must be incitement to discriminate, a hate speaker, an audience, and a target group. That is, there must be an imminent threat of hostility and intimidation of the targeted group by the audience involved in the statement. However, in this instance, the Judge held there was no evidence provided that there existed such an imminent threat of hostility and intimidation of the targeted group by the audience involved in the statement. The judgment further analyses the Rabat Plan of Action introduced in the session held by the Office of the United Nations High Commissioner for Human Rights held in Rabat, Morocco in October, 2012 which takes into consideration factors such as the context in which the statement was made, the speaker’s position or status in the society, the intent of the speaker, the content and form of the speech made, the extent of the speech act, and the likelihood, including imminence of incitement. Accordingly, when considering the suspect involved in this bail application, the learned Judge points out that the original information report did not mention that there was a conflict between Buddhists and Buddhists in the society during the period when Edirisooriya allegedly made this statement. Furthermore, in considering the social status of the speaker in question, the learned Judge holds that the B Report filed in this matter does not clearly show that such person held any influential position in society.
The judgment thereafter goes on to highlight that while certain statements may offend certain social groups, nations, religious groups, and disadvantaged groups, merely causing hurt or insult by a statement made in a careless or irresponsible manner does not bring such statement within the scope of Section 3(1) of the ICCPR Act.
In considering the application of Sections 291A and 291B of the Penal Code, the learned High Court Judge turns to Hari Singh Gour’s Penal Law of India, in which it states that “An act may be deliberate without being malicious and it may be malicious without being deliberate, since it may be reckless without being intentional. What is required to constitute the offence is the presence of both”. The learned Judge thus holds, that it is not possible to bring such statements under Section 3 of the ICCPR Act, nor under Sections 291A and 291B of the Penal Code, simply by making a statement that offends a particular race, religion or group.
In its concluding remarks, the judgment accentuates the role of an investigator in that it is not the task of an investigator to arrest a person merely on the basis that a complaint was made against such person, in particular where such complainant is a person who has the power to motivate society. Instead, in matters of this nature, the investigator must consider the facts of the case, the current interpretations used with respect to the legislation relied upon, and the obligations and accountability of our country in the international sphere. The learned Judge further highlights the importance placed by Minister Rohitha Bogollagama while presenting the International Civil and Political Rights Convention Act to Parliament, in that law enforcement agencies and justice agencies have a responsibility to act in a manner that fulfills the intention of Parliament, or the legislature, while taking into consideration international accountability, while parallelly underlining the responsibilities of investigating officers and the Judiciary alike in the pursuit of justice.
