“The hacked temple, in the flaccid sky, like a boil festers, uncircumcised
Underneath, the testes of the dagoba, the stupa of nuclear argot
The moonstone studded kotha like a conical spired necklace of pearls, juts out, its budding priapus of engorged veins, parts the innocuous and fluffy, grunting beef curtains, and ejaculates into the blooming vivisection of the sun’s glory-hole pate
O future! Rid us of this rot.” – A description of the Sambodhi Chaithya in Colombo 01 by the poet Ruwan Laknath Jayakody
By arresting a short story writer for publishing alleged religiously offensive content, and using domestic legislation enacted to enable the enforcement of an international human rights instrument belonging to the international bill of rights for the purpose, in order to appease the histrionic self-righteous dictates of holy cows and their theocratic orthodoxy of politically correct, anti-progressive, wholly regressive, infallible majoritarianism, Sri Lanka has taken a transitional step from libertarian democracy towards the conservative dystopia of Fahrenheit 451 and the extremism of medieval inquisitions, thereby reigniting the fires of that age old debate on two oft conflicting rights – the freedom of expression versus the freedom the religion.
The facts of the case
According to various news reports (electronic, online and print), Shakthika Sathkumara, a 33-year-old father of two and award winning short story writer, also employed as a Government servant (a Development Officer attached to the Nikaweratiya Divisional Secretariat), was arrested by the Polgahawela Police on 1 April after a group of Buddhist monks led by Ahungalle/Angulugalle Siri Jinananda attached to the Buddhist Information Centre, Deldeniye Rathanasara, Daluhenegedera Medankara, Pallewela Rathanasara, Udugama Premananda and the Young Buddhist Defence Front had complained to the Inspector General of Police (IGP) on 25 February over a work of fiction (short story) authored by Sathkumara titled Ardha (Half/Partial), which was posted online on social media (Facebook). The charge (trumped up?) brought against Sathkumara is allegedly committing the offence of propagating or advocating religious hatred that constituted an incitement to discrimination, hostility or violence. The Internet Media Action (IMA) organization in a press release issued in this regard claimed that the said Centre had also requested the IGP to ban, under the International Covenant on Civil and Political Rights (the ICCPR is an international human rights instrument to which Sri Lanka is a State Party to) Act, No. 56 of 2007, a soon to be published short story collection by Sathkumara.
The complainant-plaintiffs claim, that the said story by the defendant respondent, to which they object to, which dealt with among others homosexuality among members of the Buddhist clergy, sexual abuse in temples and a young monk disrobing and leaving the monastic order of the Buddha Sasana following an act of apostasy and renunciation yet remains non-heretical, was derogatory and defamatory to Buddhism and therefore constituted an alleged insult to the Buddhist faith including the life of the Buddha and the Sangha, and had thus taken offence to such.
Upon being produced before the Polgahawela Magistrate’s Court on 1 April, Sathkumara was subsequently remanded until 9 April by Polgahawela Magistrate Nelum Priyadharshini under the ICCPR Act. On 9 April when the case was taken up for hearing again, Sathkumara was ordered to be placed further in remand custody till 23 April.
Attorney Sarath Dassanayake had appeared for the complainant plaintiffs while President’s Counsel (PC) Singhanathage Tharapathi Jayanaga had as per a request by J.C. Weliamuna PC appeared for the defendant respondent.
Dassanayake had on the date of trial claimed that Sathkumara through his story had insulted Buddhism, the Buddha Sasana and the Buddhist clergy, an allegation which Jayanaga PC had denied, claiming in turn that nothing of the sort as alleged by the prosecution (alleged insult to the Buddhist doctrine of beliefs) had occurred as a result of the said artistic creation/production and that the religion in question had not been insulted. The monks have submitted that the Facebook wall on which the said story was posted had allegedly contained a semi naked image which in turn was intended to offend the sentiments of Buddhists in relation to the Buddha’s life as Siddhartha, a layman.
“In Court, whilst emphasizing that Sathkumara is neither a criminal nor a murderer, we produced his educational qualifications and the relevant portions of the books he has written and their contribution towards the development of Buddhism. We also cited case law such as the judgment given by Dr. R.B. Ranaraja when in a Kandy High Court case it was held that Courts must not be arbiters of morals and that Courts should not be rubberstamps to regulate unreasonable applications by the Police while in Mahanama Tilakaratne v. Bandula Wickramasinghe, Senior Superintendent of Police And Others, Justice Ranjith Dheeraratne held in relation to issuing a warrant that such must not be issued by a Magistrate to satisfy the sardonic pleasure of an opinionated investigator or prosecutor, and in Sebastian Fernando v. Katana Multi-Purpose Co-Operative Society Limited., And Others, Justice Mark Fernando in relation to cases where two statutes are involved, held that harsh laws must be narrowly interpreted and that the interpretation which avoids the penalty must be preferred. In such a context, Section 3(1) of the ICCPR Act is a harsher law when compared with Section 291B of the Penal Code,” Jayanaga PC added. The defence is presently pondering its next course of action in the form of filing an application for bail and/or a revision application in the relevant High Court. Dassanayake’s contact number could not be found by the author.
Meanwhile, Co-Convener of the Purawesi Balaya (Citizen’s Power) civil society organization, Gamini Viyangoda announced that a Fundamental Rights (FR) petition especially naming the Officer-In-Charge of the Polgahawela Police Station as the first respondent will be filed by Sathkumara in the Supreme Court with the involvement of a PC upon the conclusion of the Court vacation period, which ends this week.
Applicable Legal Regime and Critical Analysis
Section 3(1) of the ICCPR Act states, among others, that no person shall propagate or advocate religious hatred that constitutes incitement to discrimination, hostility or violence, and if found guilty of attempting to commit the said offence, the convict is liable to face a maximum term of rigourous imprisonment of 10 years. Under this Act, bail can only be granted by a High Court or a Court above the High Court level and that too under exceptional circumstances, the latter which remains undefined in the context of the Act, thus allowing for wide judicial discretion.
Section 291A of the Penal Code holds that anyone who with the deliberate intention of wounding the religious feelings of anyone, utters any word, among others, commits an offence which if found guilty carries a maximum term of imprisonment of a year and/or a fine while Section 291B of the same deals with the deliberate and malicious intention of outraging the religious feelings of any class of persons by words written, insults or attempts to insult the religion or religious beliefs of that class, and upon conviction carries a maximum term of imprisonment of two years and/or a fine.
It must be noted that Article 10 of the Constitution guarantees the freedom of thought and conscience (a short story is partly the product of both) while the freedom of speech and expression including publication (includes short stories) is enshrined in Article 14(1)(a). Further, Article 14(1)(f) provides for the freedom to enjoy and promote one’s own culture (short stories which fall within the realm of literature are an aspect of culture) and use one’s language (the medium in which the short story is written) while Article (14)(1)(g) allows one to engage in a lawful occupation and profession (short story writing and publishing falls within the scope of a lawful occupation and profession).
Also, Article 14A(1) provides for the citizen’s right of access to information which in turn is required for the exercise or protection of a citizen’s right. As the author along with Faizer Shaheid previously noted in their review of a draft Right to Information (RTI) bill, the fact that every person shall have the right to hold opinions without interference or subject to restriction and the right to freedom of expression which shall include the freedom to express, seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice, must be recognized within the context of freedom of information.
Articles 14A(2) and 15 holds that the aforementioned rights may be lawfully restricted, among others, in the interests of religious harmony and the grounds of defamation and the reputation of others, incitement to an offence, national and public safety and security, public order, the prevention of disorder or crime, the protection of public health and morality, securing due recognition and respect for the rights and freedoms of others, meeting the just requirements of the general welfare of a democratic society, privacy and the prevention of the disclosure of information communicated in confidence.
Elsewhere, it must be noted that the Profane Publications Act, No. 41 of 1958, criminalizes the writing, production, printing, publication, sale, distribution and exhibition of a profane publication, which is defined under Section 5 of the Act concerning interpretation, as being among others, any book, picture or other visible representation containing (a) any insult to – (i) the founder of any religion, (ii) any deity, saint or person, whether alive or dead, venerated by the followers of any religion, or (iii) any religion or religious belief, or (b) any ridicule of any figure, picture, emblem, device or other thing associated with, or sacred to the followers of, any religion. The Act however allows for any fair comments on, or any fair criticism of, any religion or religious belief. Fair, in the context of the Act, remains undefined too. The author along with Shaheid in their aforementioned review recommended that this Act needs to be revisited in light of its applicability to the at the time proposed RTI Act and potential limitations it imposed on the right to information.
As pointed out by writer Sarath de Alwis in his ‘Whole Truth Of A Half Truth’, the Vinya Pitaka which is a canonical Theravada Buddhist scripture on discipline and monastic rules, narrates an instance of homosexual infatuation and/or obsession (on the part of a monk named Wakkali towards the Buddha with the former reported as having joined the Sangha Sasana simply over the said attraction), pederasty (a novice monk masturbating an older monk), bestiality (between a monk and a female monkey), heterosexual and transsexual behaviour and conduct. Why then is Sathkumara’s work, regardless of its literary merits or demerits, being singled out for religious offence and holier-than-thou intolerance? Is it a case of the pot calling the kettle black? The kind of sense and sensibility that bred this act of intolerance defies all logic, rationality and reason. Let us also be mindful that fiction contains facts in disguise, and if so the monks being irate may be a case of putting the cap on since it fits.
If the law enforcement authorities, in this instance the Police, adopt a heckler’s veto approach when faced with such an instance where there is a clear lack of “imminent lawless action (as set out in Brandenburg v. Ohio)”, whereby the Police seek to prevent possible adverse reactions from the people by restricting in prior certain actions of and by the people, what such a practice exhibits is the imposition of a pronounced chilling effect upon the domain of expressions which fall within the ambit of what late Associate Justice of the Supreme Court of the United States (US), Oliver Wendell Holmes, Jr. in his dissent in US v. Schwimmer, advocated for, which is “not free thought for those who agree with us but freedom for the thought that we hate.”
It must be further noted that, elsewhere, writing on a central tenet of democracy, namely free speech, in the wake of the Jyllands-Posten Muhammad cartoons controversy, late American jurist Professor Ronald Dworkin argued for a right to ridicule while opposing a right not to be insulted or offended. He railed against the “endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of ‘multiculturalism’, and that Governments are right after all to propose that it be made a crime to publish anything ‘abusive or insulting’ to a religious group.” He pointed out that “religion must observe the principles of democracy, not the other way around. No religion can be permitted to legislate for everyone about what can or cannot be expressed. No one’s religious convictions can be thought to trump the freedom that makes democracy possible.”
Therefore, it is proposed that it is time that the Profane Publications Act be abolished.
The story of civilizations and their progress achieved via the effects of civilizing is the story of the clash of contentious ideas vying for supremacy in the people’s mindspace in the context of public discourse. The sovereignty of the world is the world of ideas, the terra firma and terra incognita of knowledge. Pivotal in the process of the passage of such civilizations is the smuggling and trafficking of information and the combustible and volatile world of cognition and cognitive endeavours, the latter including the literary arts and aligned forms of expression. The platform on which this exchange of ideas occurs is the marketplace of ideas where competitive trade of opinions should occur freely. One of the subjective purposes of art as a means of higher communication is to serve as a transgressive confession which shocks one into a consciousness, to challenge the status quo, to do violence to the politics of identity surrounding perceptions, and to break taboos and conventions, with the role of the artist being one of a provocateur, a purveyor of cognitive chaos and an agent of artistic and intellectual freedom. In this context, censorship by way of any form of suppression of dissent is anathema. Censorship is an unfair value judgment made on the basis of dogmatic beliefs, and norms. Thus, the only incitement in this case is the resultant associated phenomena of the emergence and promotion of a culture and climate of fear, fear mongering, opinion corridors, echo chambers, homophily, the spiral of silence, the heckler’s veto, a chilling effect, prior restraint, self censorship, and cultural hegemony.
Both the views, that of the monks who complained and that of Sathkumara and his fictional protagonists, have currency. They should both be free. Yet, one is behind bars. In the person of Sathkumara, it is mother Lanka that stands persecuted. This is an unethical act of intolerance and blasphemy committed against all that is sacred and profane in democracy and a patently contemptuous affront to the nature of the gospel of truth. Let us then invoke that right which philosopher Karl Popper’s evocatively articulated thus: “in the name of tolerance, the right not to tolerate the intolerant”.
(The headline is a play on Darwin’s Bulldog, a reference to scientist Thomas Henry Huxley known for his defence of fellow scientist Charles Darwin’s theory of evolution and the Cloud Dweller reference being Soviet Russian dictator Joseph Stalin’s alleged description of Russian Nobel Literature Laureate Boris Pasternak).