The cautionary tale of Galagoda Aththe Gnanasara

Last week Colombo High Court handed down a sentence of four years of rigorous imprisonment to Bodu Bala Sena (BBS) General Secretary Galagoda Aththe Gnanasara and a fine of Rs. 100,000 over a contentious statement made by him about Islam and Muslims in 2016. The Judge ordered an additional one year of imprisonment if the controversial monk fails to pay the imposed fine.

The race baiting monk who has a history of inciting communal hate was indicted by the Attorney General for causing “harm to national and religious harmony” by making a threatening statement against the Kuragala Islamic religious site during a 2016 press briefing in Colombo. 

Gnanasara was charged under section 291 (b) of the Penal Code which restricts expressions made with the deliberate intent of hurting religious sentiments of a person. This however is different to inciting violence. 

The International Covenant on Civil and Political Rights (ICCPR) Act of 2007 provides the necessary legislation to criminalise the advocacy of “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. The ICCPR Act has been unfortunately used against poets, journalists and even a woman who allegedly wore a garment erroneously depicting a Buddhist religious symbol. The use of its provisions has been greatly disproportionate against perceived affronts against Buddhism.

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, and very selectively used for the very opposite purpose, to curtail opinion and terrorise the citizenry, especially targeting minority communities.

Just as disturbing are the instances in which the ICCPR Act should have been used but was not. For example, in 2014, when there was clear incitement to violence in Kalutara by a group of racist monks led by Galagoda Aththe Gnanasara, there were no arrests made under the ICCPR Act or the criminal code provisions. The violence incited by Gnanasara killed two Muslims who were attacked by a mob. To this day none of the perpetrators of the crime nor their instigators have been held accountable.

The sentencing of Gnanasara is a positive development towards defeating the culture of immunity and impunity enjoyed by those wearing saffron robes in this country. The message that no one is above the law needs to be heard more frequently and even more loudly. However, the use of the legal provisions which are meant to stifle free expression, even in the form of hate speech by vile individuals such as Gnanasara should not be celebrated. The laws on speech should only be curtailed under the most stringent of circumstances when there is a clear incitement of violence and not on grounds of hurting ’religious sentiment.’