Sri Lankan High Court Delivers a Landmark Order as a Bulwark for Freedom of Expression

by | Jul 20, 2023

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About Sajini Wickramasinghe

Sajini Wickramasinghe holds a LLB and a Master of Human Rights and Democratisation from the University of Colombo. She is a judicial law clerk at the Court of Appeal of Sri Lanka and currently acts as the Rapporteur on Discrimination at the Commonwealth Youth Human Rights & Democracy Network.

Within Sri Lanka, the International Covenant on Civil and Political Rights (ICCPR) enabling legislation – the ICCPR Act No. 56 of 2007 – has only ever been used to persecute, rather than to uphold rights. Journalists, minority communities, activists and the wider public have been targeted by the Act. In particular, freedom of expression has been the most threatened fundamental right.

The latest victim of the Act was the Sri Lankan comedian Nathasha Edirisooriya. The High Court of Colombo, Sri Lanka granted bail to the comedian on 05 July 2023 following her arrest on 11 June under the ICCPR Act, for allegedly making derogatory remarks on Buddhism. In the case of Edirisooriya Arachchige Jayani Nathasha Edirisooriya v Officer-in-Charge, Criminal Investigation Department and others (HCEBA/1335/2023) the Court interpreted the legislative intention of the Act and highlighted the importance of considering international standards in identifying Hate Speech.

The Court first interpreted Section 3 (1) of the Act, which prohibits the advocacy of ‘national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’, and which is the most frequently misapplied provision of the statute. The Court acknowledged that the legislative intent of passing the Act was to legally enable the ICCPR, which was ratified by the state in 1980s. The Court held that Section 3(1) of the Act is equivalent to Article 20(2) of the Convention and also that it must be interpreted in light of Article 19, which protects freedom of speech and expression.

In particular, the Court referred to the United Nations Strategy and Plan of Action on Hate Speech of September 2020 to reiterate the three forms of hate speech it identified, which are (1) the severest form which leads to mass atrocities; (2) intermediate level; and (3) the bottom level. The Court also referred the Action Plan to identify the requisites of incitement of discrimination as (1) hate speaker, (2) an audience, and (3) a target group. It then remarked that for a statement to be considered hate speech such a target group should be at imminent threat of animosity or violence from the audience of the hate speech or from the wider community. The Court thus relied on the fact that there were no such reported incidents of incitement of violence in the comedian’s show, considering the audience in question.

It is commendable that the High Court Judge further referred to the infamous Rabat Action Plan,  which was introduced in 2012 in recognition of the threat to human rights posed by Article 20 of the ICCPR. The Court expounds the six part threshold test of context, speaker, intention, content and form, extent and magnitude of the expression, and likelihood (including imminence to incite). The Court reasoned that within the context of the impugned there was no hostility towards the Buddhist community, that until the video was uploaded on YouTube the speaker was unknown, and that the statement was made for the purpose of humour and enjoyment.

The Court points out that certain expressions can offend, hurt, be irresponsible or negligent; however by that reason, they do not necessarily become an offence under Section 3(1) of the ICCPR Act, according to accepted international standards. It called for the attention of the investigating officers to recognise that just because a person with influence reports, it is not the duty of the Police to arrest individuals without following the legislatively mandated procedure and without legitimate grounds. In concluding, the bail was granted to the Petitioner. Setting the precedent of a high threshold to restrict freedom of expression is a defining milestone in the Sri Lankan rights discourse and judicial activism. However, the finding may yet be overturned by a higher Court. Nevertheless, it is a breakthrough in mitigating persecution under the pretext of the ICCPR Act, and in the use of the Act as it was always intended.

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