Abusing the ICCPR Act

This week the Attorney General indicted former Governor of the Western Province Azath Sally under the Prevention of Terrorism Act (PTA) and the International Covenant on Civil and Political Rights (ICCPR) Act, based on a statement he had made at a press conference.

Sally has languished in custody since March without bail. In the wake of Public Security Minister Sarath Weerasekara announcing that cabinet approval had been sought to ban face coverings, a policy that inadvertently affects Muslim women more than any other section of society, Sally, the leader of the National Unity Front, allegedly stated that Muslim Law cannot be changed and that his community will only respect these laws and none other. Minister Weerasekera reacted angrily to the statement calling for Sally’s arrest on the grounds of “encouraging religious extremism”. Days later, Sally was arrested under the PTA and ICCPR acts, both which have restrictions on granting bail to a detainee.  

The use of the PTA for arbitrary arrests, detention and numerous other rights abuses has been well documented. Much less talked about is the selective use of the ICCPR act to restrict rights, including the right to free expression.

The ICCPR and its sister Covenant on Economic Social and Cultural Rights (ICESCR) are called the ‘International Bill of Rights’ that provide the foundation for international human rights law.  These two instruments, adopted by the UN General Assembly in 1966 gave legally binding effect to the Universal Declaration of Human Rights of 1948 and is the source document for a number of international, regional and local laws enacted since. For example, the fundamental rights chapter of the 1978 constitution of Sri Lanka copies provisions liberally from the ICCPR. Sri Lanka ratified the ICCPR in 1980 and finally enacted legislation to domesticate its obligations in 2007. By definition, the ICCPR is an instrument that enhances the rights of citizens and protects them against excessive restraints by the State. In an ironic twist, in Sri Lanka, the ICCPR act, a law meant to protect human rights and guarantee the peaceful expression of views, has been extensively used for the very opposite purpose, to curtail opinion and terrorise the citizenry. Particularly concerning is the use of the act against minorities, opposition figures and rights activists. The act provides for provisions to criminalise the advocacy of “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. The use of this provision has been greatly disproportionate against perceived affronts against Buddhism. There are numerous cases such as Shakthika Sathkumara who was arrested in April 2019 and held in custody for over a year in response to a complaint that his short story ‘Ardha’ (Half) was derogatory and defamatory to Buddhism, and a woman arrested and detained for months on the same charge when police assumed she was wearing a dress with a dharmachacra, a Buddhist symbol rather than a ship’s wheel which it turned out to be. And now Azath Sally has been indicted under the same law for expressing his opinion at a press conference.  

Just as disturbing are the instances in which the ICCPR Act should have been used but was not. In 2014, when there was clear incitement to violence in Kalutara by a group of monks attached to the Bodu Bala Sena, there were no arrests made under ICCPR or any other law. When the current minister in charge of Public Security was in opposition and called for the public execution of the Chairperson of the Human Rights Commission, his right to freedom of expression, however disdainful that expression, was upheld. He was not arrested for inciting violence.

It is a fundamental tenet in interpreting law that the intentions of the drafters be given due consideration. In the context of the ICCPR Act, the Attorney General and the Police have made a mockery of this basic principle. Neither the International Covenant nor the local legislation was intended to be used in a draconian and selective manner to curtail rights of individuals, minority groups or political opponents. However, this is exactly what is happening. The abuse and selective use of the ICCPR Act should cease immediately.