එක්සත් ජාතීන්ගේ මානව හිමිකම් කවුන්සිලයේ අත්තනෝමතික සිරගතකිරීමි වලට එරෙහි ක්‍රියාකාරී කන්ඩායම ලේඛක ශක්තික සත්කුමාර සම්බන්ධව පිටු 15 ක මතයක් සම්මත කරමින් සත්කුමාර අත්අඩංගුවට ගැනීම හා රඳවාතබාගැනීම මගින් ශ්‍රී ලංකා ආන්ඩුව ඔහුගේ ජාත්‍යන්තර මානව හිමිකම් උල්ලංගනය කර ඇති බව නිගමනය කර ඇත. 2020 මැයි 01 දිනැති අංක.08/2020 දරන මතය.
Human Rights Council Working Group on Arbitrary Detention adopts
Opinion on writer Shakthika Sathkumara at its 87th session, on 1 May 2020:
මුහුනුපොත් ගිනුමේ ලියා පලකල "අර්ධ" නමැති කෙටි කතාව මගින්, බුද්ධාගමට හා බුදුන්ට අපහාස කරන බවටත් බුදුන්ගේ ගිහි ජීවිතය විකෘත කරන බවටත් සිංහල වර්ගවාදී සංවිධානවලට සම්බන්ධ භික්ෂුවක් විසින් වෛරී සහගත ලෙස කර තිබූ පැමිනිල්ලක් මත 2019 අප්‍රේල් 1 දින පොල්ගහවෙල පොලීසිය විසින් නීතිව්රෝධී ලෙස අත්අඩංගුවට ගැනුනු ලේඛක ශක්තික සත්කුමාරගේ මූලික අයිතීන් කඩවීම සම්බන්ධයෙන් එක්සත් ජාතීන්ගේ මානව හිමිකම් කවුන්සිලයේ අත්තනෝමතික සිරගතකිරීමි වලට එරෙහි ක්‍රියාකාරී කන්ඩායම (ක්‍රි.ක) තම මතය එහි
87 වන සැසිවාරයේදී සම්මතකර තිබේ.
2020 මැයි 01 දින සම්මත කර ඇති මෙම මතය පිටු 15කින් යුක්ත අතර අත්අඩංගුවට ගැනීමට අදාල සිද්ධිමය කරුනු හා ජාත්‍යන්තර මානව හිමිකම් නීතිමය කරුනු මතය තුල අන්තර්ගතකර තිබේ. සත්කුමාර අත්අඩංගුවට ගැනීම හා දිගටම රඳවා තබා ගනු ලැබීම මගින් භාෂනයේ හා ප්‍රකාශනයේ නිදහස ඇතුලුව ජාත්‍යන්තර මානව හිමිකම් රාශියක් හා ව්‍යවස්ථාපිත මූලික අයිතිවාසිකම් ගනනාවක් උල්ලංගනය කර ඇති බව නිගමනය කරන එම මතය, සත්කුමාරට එරෙහි සියලු චෝදනා හා නඩුකටයුතු ඉවත්කර ගන්නා ලෙස ශ්‍රි ලංකා ආන්ඩුවට කියා සිටී.
2019 දෙසැම්බර් 27 ක්‍රි.ක ආන්ඩුවට යැවු සැලකිරීමට මෙතෙක් කිසිදු ප්‍රතිචාරයක් ලබා දී නැති බව එහි සඳහන්ය. මෙම සම්මතකර ඇති මතය මැයි මස 13 වන දින හෝ ආසන්න දිනකදී ශ්‍රී ලංකා ආන්ඩුවට යොමු කරනු ලැබ තිබේ.
සත්කුමාර අත්අඩංගුවට ගැනීම පුද්ගලයෙකුගේ නිදහස අහිමිකරන අවස්ථා තුනක් යටතේ අත්තනෝමතික වන බව ක්‍රි.ක තම මතයේ පෙන්වා දෙයි. මතය තුල අන්තර්ගත වැදගත් කොටස් සැලකිය යුතු ප්‍රමානයක් පහත උපුටා දැක්වේ (පරිවර්තනයක් අවශ්‍යය):
[N]either the text of the ICCPR Act nor its application provides sufficient precision for an individual to be able to know what forms of expression will violate the Act.… Mr. Sathkumara could not have reasonably known that his work would incur criminal sanctions. His story does not advocate violence or war, nor does it incite discrimination or hostility.
[t]hat Mr. Sathkumara’s conduct is punished only because of the practice of applying the law when speech is perceived as challenging by Buddhists. Such application cannot be considered precise, as required by article 11(2) of the Universal Declaration of Human Rights or article 15(1) of the Covenant. Mr. Sathkumara’s arrest and detention is arbitrary because the first legal basis for his detention, namely the ICCPR Act, is both vague and overly broad…
section 291B of the Sri Lankan Penal Code, the second legal basis for Mr. Sathkumara’s arrest, is also vague and overly broad...The lack of textual clarity as to the reach of this provision leads to its application in a manner that infringes upon the freedoms of expression and religion under international law.
Given the political influence of the Buddhist clergy and the special constitutional status afforded to Buddhism as the State religion, section 291B effectively provides a mechanism to stifle unorthodox religious views and expression.
The intent of his story was not to advocate against the Buddhist religion, and, in fact, he considered his story to be part of a tradition of critical Sinhalese literature on Buddhist philosophy.
Mr. Sathkumara’s arrest and detention pending trial was arbitrary under category I because the legal basis for his detention under section 3(1) of the ICCPR Act and section 291B of the Penal Code is both vague and overly broad.
The Human Rights Committee has held that limitations on the freedom of expression under article 19(3) of the Covenant must “meet a strict test of justification.”
The exceptions to the right to freedom of expression do not apply in the present
case. While the restrictions on expression were written into law, these laws were vague and overly broad. The short story did not infringe upon or in any way threaten “the rights or reputations of others, protection of national security or public order, health or morals.”
In the context of what counts as legitimate grounds for restricting expression, the Human Rights Committee has been clear that “[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.”
Using these laws to harass, detain, and potentially punish Mr. Sathkumara cannot qualify as a legitimate exception to the freedom of expression.
Under the Human Rights Committee’s jurisprudence, “the State party must demonstrate in specific fashion the precise nature of the threat to any of the enumerated purposes.”8
The authorities have offered no explanation - beyond the Buddhist clerics’ indignation at the content of the story - as to why Mr. Sathkumara’s right should be curtailed. No exceptions are applicable to the restrictions of Mr. Sathkumara’s right to freedom of expression, and therefore his detention and continued prosecution amount to a violation of article 19 of the Covenant.
The fact that Mr. Sathkumara’s writing and posting of his original short story constitutes the basis of his arrest and detention amounts to a limitation on his right to freedom of religion.
Given that no exception applies to the Government’s restriction of Mr. Sathkumara’s right to freedom of religion, his detention and continued prosecution amounts to a violation of article 18 of the Covenant.
In light of the irregular manner of arrest, Mr. Sathkumara’s arrest and detention was arbitrary and in violation of article 9 of the Universal Declaration of Human Rights and article 9(1) of the Covenant.
Due to the substantial delays in Mr. Sathkumara’s trial and due to the failure of the detaining authorities to provide legitimate grounds for the length of proceedings, the Government has violated Mr. Sathkumara’s right to be tried without undue delay, contrary to article 14(3)(c) of the Covenant.
Moreover, because the denial of bail was based upon section 3(4) of the ICCPR Act rather than an individualised determination regarding Mr. Sathkumara’s case, the Magistrates’ Court failed to take the totality of the circumstances into account as required under the Covenant...There were no circumstances that could reasonably justify the excessive period of detention without trial or formal charges.
For the above reasons, Mr. Sathkumara’s arrest and detention violated international
law, as the expression through his short story is protected under applicable provisions of the Covenant, as well as other sources of international and Sri Lankan law. By arresting Mr. Sathkumara and subjecting him to lengthy pre-trial detention, the conditions of which violated international law, the Government has arbitrarily detained Mr. Sathkumara.
(After granting Bail, Sathkumara was kept in remand for three more days) maintaining a person in detention after release has been ordered by a court competent to exercise control over the legality of detention is a manifest violation of article 9 of the Universal Declaration of Human Rights and article 9 of the Covenant and renders the detention arbitrary because it lacks legal basis.
The Working Group finds that there was no legal basis for Mr. Sathkumara’s arrest and pre-trial detention. His detention was arbitrary under category I.
Working Group considers that Mr. Sathkumara’s short story falls clearly within the boundaries of the right to freedom of thought, conscience and religion protected under article 18(1) of the Covenant, and that his detention resulted from peacefully exercising that right.
The authorities have offered no explanation, other than the Buddhist clerics’ indignation at the content of the short story, as to why Mr. Sathkumara’s right to freedom of expression should be curtailed.
The Working Group considers that Mr. Sathkumara’s short story falls clearly within the boundaries of the right to freedom of expression protected under article 19(2) of the Covenant, as this right includes cultural and artistic expression and religious discourse.
As the Human Rights Committee has stated, this right also embraces expression that may be regarded as deeply offensive. The fact that the short story in this case contained references to controversial themes of homosexuality and sexual abuse does not prevent it from falling within the scope of the freedom of expression.
The Government did not explain the threat posed by Mr. Sathkumara’s conduct to the legitimate interests that States might invoke under articles 18(3) and 19(3) of the Covenant, namely respect for the rights, freedoms or reputations of others, national security, public safety, public order, public health or morals, and how the arrest and detention of Mr. Sathkumara was necessary to protect any of those interests. Importantly, there is no information to suggest that Mr. Sathkumara’s short story advocated violence or war, or incited discrimination or hostility. There has also been no evidence presented that the story had the effect of incitement, nor has Mr. Sathkumara ever been accused of any form of violence or incitement to violence that would justify restriction of his activities as religious hate speech under article 20 of the Covenant.
Moreover, the Working Group is not convinced that detaining Mr. Sathkumara and possibly prosecuting him for offences that may lead to his imprisonment for up to 12 years is a proportionate response to his writing and posting a short story online.
The Working Group concludes that Mr. Sathkumara’s arrest and detention resulted from the peaceful exercise of his rights to freedom of thought, conscience and religion and freedom of expression. His detention was arbitrary under category II.
Many forms of legitimate expression and conduct could be considered as amounting to
propagation of religious hatred under section 3(1) of the ICCPR Act, and the standards of “outraging the religious feelings of any class” and insulting the religion or religious beliefs of that class in section 291B of the Penal Code are inherently subjective.
the principle of legality requires that laws be formulated with sufficient precision so that the individual can access and understand the law, and regulate his or her conduct accordingly. In the present case, the application of vague and overly broad provisions adds weight to the Working Group’s conclusion that Mr. Sathkumara’s deprivation of liberty falls within category II. Moreover, the Working Group considers that, in some circumstances, laws may be so vague and overly broad that it is impossible to invoke a legal basis justifying the deprivation of liberty.
Given its finding that Mr. Sathkumara’s detention was arbitrary under category II, the
Working Group emphasizes that no trial of Mr. Sathkumara should take place in future.
Mr. Sathkumara’s pre-trial detention was extended by the Polgahawela Magistrates’ Court on at least nine occasions before he was released.
This is a relatively uncomplicated case involving a publication uploaded to social media by an individual who admitted doing so, and the contents of the publication were known to the authorities and the community. It is therefore unclear why the police required further time to investigate, and why the Attorney General has not determined whether to file indictments that could potentially result in Mr. Sathkumara’s imprisonment for up to 12 years. The Government offered no justification for the delay.
The ICCPR Act, which provided the grounds for Mr. Sathkumara’s detention, requires that anyone accused of violating the Act be denied bail.
Working Group has repeatedly confirmed that mandatory preIn particular, nontrial detention - in this case a “non-bailable” offence under section 3(4) of the ICCPR Act violates a State’s obligations under international human rights law. bailable offences violate the requirement under article 9(3) of the Covenant that pre-trial detention is an exceptional measure rather than the rule. Such non-bailable offences also violate the requirement that pre-trial detention must be based on an individualised determination that it is reasonable and necessary in the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. As the Human Rights Committee has stated, pre-trial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances.
The Working Group also considers that non-bailable offences deprive a detainee of the right to seek alternatives to detention, such as bail, in violation of the right to be presumed innocent under article 11(1) of the Universal Declaration of Human Rights and article 14(2) of the Covenant. The imposition of mandatory pre-trial detention for certain offences reverses the presumption of innocence, so that those subject to ongoing criminal proceedings are automatically detained without a balanced consideration of non-custodial alternatives to detention. Moreover, mandatory pre-trial detention deprives judicial authorities of one of their essential functions as members of an independent and impartial tribunal, namely assessing the necessity and proportionality of the detention in each case.
While section 3(4) of the ICCPR Act allows for the High Court to grant bail “in exceptional circumstances”, this was not sufficient to remedy the violation of Mr. Sathkumara’s right to an individualised assessment of his case under article 9(3) of the Covenant. The Working Group takes note that it took 127 days before the High Court granted bail to Mr.Sathkumara on 5 August 2019.
The Working Group concludes that these violations of the right to a fair trial are of such gravity as to give Mr. Sathkumara’s pre-trial detention an arbitrary character under category III.
While Mr. Sathkumara was released on 8 August 2019 after 130 days of pre-trial
detention, he was detained on a discriminatory basis until that point. Accordingly, the Working Group considers that the facts in the present case disclose a violation of category V.
The deprivation of liberty of Shakthika Sathkumara, being in contravention of articles 2, 7, 9, 10, 11, 18 and 19 of the Universal Declaration of Human Rights and articles 2(1), 9, 14, 18, 19 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and falls within categories I, II, III and V.
The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to accord Mr. Sathkumara an enforceable right to compensation and other reparations.
The Working Group requests the Government of Sri Lanka to take the steps necessary to remedy the situation of Mr. Sathkumara without delay and bring it into conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
The Working Group urges the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary detention of Mr. Sathkumara, and to take appropriate measures against those responsible for the violation of his rights.
සටහන: නීතිඥ සංජය විල්සන් ජයසේකර
18.05.2020
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