By Ruwan Laknath Jayakody –

Ruwan Jayakody

Objections filed by the Police Department at the Kurunegala High Court outlining their opposition to the granting of bail to writer Shakthika Sathkumara presently under remand custody, have upon analysis, found to not only contain multiple logical fallacies, but also that they seek to justify and legitimize the imposition of a heckler’s veto approach to free speech/expression law and thereby create a chilling effect.   

The heckler’s veto occurs in a situation where for example, an acting party’s actions such as a speaker or demonstrator’s right to speech or demonstration is preemptively curtailed or restricted or suppressed or stopped/terminated by the Government based on an anticipated negative reaction (such as due to the fear of heckling or the possibility of a violent reaction) of someone (such as a heckler) opposed to that speech or demonstration and in order to prevent a reacting party’s (a party who disagrees with the speaker’s message and is able to unilaterally trigger events that result in the speaker being silenced) behaviour and for example, in the interest of maintaining public peace which in the face of immediate violence allows the authorities to force the acting party to cease their action in order to satisfy the heckler/s.

The said objections are contained in a letter (a copy of which the author is in possession of) sent on or between 22 and 26 June by the Police Department (specifically by the Officer-In-Charge {OIC} of the Polgahawela Police Station, Inspector of Police {IP} R.D.M. Cyril) to the Attorney General’s (AG) Department (specifically to the State Counsel attached to the North Western Province High Court [HC] in Kurunegala) and the Kurunegala HC, regarding the bail application (HBA/46/2019/KU) filed before the Kurunegala HC by Yanusha Lakmali, the wife of Delankage Sameera Shakthika Sathkumara against whom the Polgahawela Police Station has filed a case (B/7673/2019) before the Polgahawela Magistrate’s Court (MC). The latter case is to be taken up again before Polgahawela Magistrate Nelum Priyadharshini on 6 August while the bail application inquiry was fixed for 5 August by Kurunegala High Court Judge Menaka Wijesundara. Polgahawela OIC, IP Cyril has been named as the first respondent in the said bail application.

In the letter, IP Cyril has described the nature of the alleged offence as maliciously writing and publishing on Facebook a short story with the intention of disrespecting and insulting Buddhism on 15 February at 6.33 a.m. 

The letter cites two eyewitness accounts where Chief Incumbent of the Chandrasela Pirivena in Pothuhera, Mandawala Sumana (representing Alupothe Gedara Medankara, Udugama Medananda, Udugama Kemananda and Deldeniye Rathanasara of the Polgahawela North and South Shasanaarakshaka Bala Mandalayas and the Polgahawela Divisional Samashri Sangha Council) and Degal Asse Gedara Wimalasiri of the Mayurawathi Rajamaha Viharaya in Kaluhendiwala in Thalawaththegedera had on 6 March lodged complaints at the Polgahawela Police Station claiming that between 6.30-6.33 a.m. on 15 February, Development Officer attached to the Polgahawela Divisional Secretariat and resident of Wariyapola, Shakthika Sathkumara had posted and published online on social media (Facebook), a work of fiction, a short story titled ‘Ardha (Half/Partial)’, and that it insults, distorts and disrespects Buddhism, distorts the Buddha’s character, and disrespects the Buddhist clergy. The letter noted that the said monks had stated that they had previously lodged a complaint in this regard with the Kurunegala District Secretary, the Commissioner of Buddhist Affairs, and the Secretary – Ministry of Public Administration and Home Affairs.

The letter informs that Sathkumara had been informed via telephone by the Wariyapola OIC to come to the Police Station on 25 March but that Sathkumara had informed via electronic mail that he couldn’t make it owing to being ill and had made an attorney appear on behalf of him at the Police Station. Sathkumara had then been informed to come to the Police Station on 01 April. He had turned up on the same day along with an attorney at the Police Station, after which he was produced before the Polgahawela MC under B7673 and a copy of the short story in question was presented in Court as a Court production.

The Police then informs the AG’s Department and the Kurunegala HC that they oppose the granting of bail to the suspect on the basis of Sections 14(1)(a)(ii) and 14(1)(b) of the Bail Act, No. 30 of 1997 where the former deals with the Court refusing bail over attempts to “interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice” and the latter “that the particular gravity of, and public reaction to, the alleged offence may give rise to public disquiet”. 

The inherent contradictions in the reasons cited by the Police for opposing bail arise when the Polgahawela OIC’s letter states on the one hand that – a) there is no tense situation that has arisen among the parties to the case [thus nullifying the legal position invoked by the Police under Section 14(1)(b) of the Bail Act] and also acknowledges that b) they have received no complaints regarding any threats to witnesses [thus nullifying the legal position taken by the Police under Section 14(1)(a)(ii) of the Bail Act], while at the same time going on to claim on the other hand that in publishing the said short story on his Facebook account, accompanied by a picture of a nude female, Sathkumara had intentionally published an anti-Buddhist short story thereby insulting Buddhism, distorting the Buddha’s character, the main teachings of Buddhism and the Buddhist way, and defaming the characters of Siddhartha Bodhisattva (later Gautama Buddha), Princess Yasodhara and Prince Rahula, with the view of destroying the respectful image pertaining to the latter trio existing within the minds of Buddhists, and that this had in turn – a) led to the incitement of the area’s Buddhist monks and Buddhists, and the organizing of protests, and therefore that there is the possibility of incitement to an offence among Buddhist monks and Buddhists and thereby the possibility of the disturbance of harmony and order, and that b) there could be indirect obstructions levelled against the process of meting out justice to the plaintiff party and witnesses through the non-Government organization to which the suspect is affiliated to. 

That only speech directed to inciting or producing imminent lawless action or is likely to incite or produce such action can be punished has been set out by the Supreme Court (SC) of the United States (US) in Brandenburg v. Ohio. The SC of India in Shreya Singhal v. Union of India held that the connection and relationship between the publication and the public, and the disturbance of public order, is akin to that of the powder keg and the spark. Thus, 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 SC of the US, Oliver Wendell Holmes, Junior. 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.”

Furthermore, it remains questionable as to how the Police ascertained the mens rea (intention) on the part of Sathkumara as the latter has, admitting no wrongdoing, filed a Fundamental Rights petition (SC/FR/167/2019) which was granted leave to proceed by the SC and is to be taken up again on 30 September. Through the petition in which the OIC of the Polgahawela Police Station, the Inspector General of Police and the AG have been named as respondents, Sathkumara claims that his FR as per Articles 12(1) dealing with the right to equality and the equal protection of the law, 13(1) concerning freedom from arbitrary arrest, and 14(1)(a) of the Constitution which provides for the freedom of speech and expression including publication (includes short stories), have been infringed. 

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 Faizer Shaheid previously recommended in their review of a draft Right to Information (RTI) Bill 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 RTI. 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.

Article 10 of the Constitution guarantees the freedom of thought and conscience (a short story is partly the product of both). The right under Article 14(1)(a) can be restricted, among others, in the interests of religious harmony, and in relation to defamation or incitement to an offence as per Article 15(2), and public order as per Article 15(7). 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. The author along with Shaheid in their aforementioned review previously noted 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.

Moreover, the organizing of non-violent protests by Buddhist monks and Buddhists is protected under the freedom of peaceful assembly [Article 14(1)(b)], association [Article 14(1)(c)], and movement [Article 14(1)(h)]. As the saying goes since ‘two wrongs don’t make a right’ (not that Sathkumara has done wrong), the monks or lay Buddhists cannot engage in the incitement to an offence and disturb harmony and order, and if they do, the Police have legal provisions to act under which need not involve the heckler’s veto approach they have taken here.

OIC of the Polgahawela Police Station, IP Cyril, when contacted, said that when they had queried from the AG’s Department last week, seeking advice on whether or not to file indictments against Sathkumara, they had been informed that the file in question is still being studied by them. 

When queried about the inherent contradictions in the Police objections to bail, IP Cyril observed that in the beginning, there were protests.  

Sathkumara, a 33-year-old father of two and award winning writer, was arrested by the Polgahawela Police on 1 April after a group of Buddhist monks had complained to the said Police over a work of fiction (short story) authored by Sathkumara titled Ardha (Half/Partial), which was posted online on Facebook. 

According to the complaint, the said story to which they have taken offence to and thereby objected to, dealt with among others alleged homosexuality among members of the Buddhist clergy, alleged 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 whilst remaining non-heretical. 

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. 

Sathkumara, to date since his arrest on 1 April by the Polgahawela Police Station, has been remanded by Polgahawela Magistrate N. Priyadharshini under Section 3(1) of the ICCPR Act, No. 56 of 2007, for allegedly committing the offence of propagating or advocating religious hatred that constituted an incitement to discrimination, hostility or violence, and under Section 291B of the Penal Code, for allegedly committing the offence of 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, through a short story of his.

If found guilty of attempting to commit the offence under Section 3(1), 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. Conviction under Section 291B carries a maximum term of imprisonment of two years and/or a fine.

When the case before the Polgahawela MC was taken up on 25 June, the Polgahawela Police informed that their investigation into the case they have filed against Sathkumara has been concluded and that the matter has been referred to the AG for the latter’s opinion on whether to file charges or not. Counsels representing Sathkumara too have separately written to the AG in this regard. The author has made a query from the AG, through his Coordinating Officer, State Counsel Nishara Jayaratne as to whether the AG has taken a decision on whether or not to file indictments in this regard, and is presently awaiting a response regarding the query.

It is therefore the hour to remind all concerned, that bail, as held by the Indian SC, is the rule and that jail is the exception, and that this is particularly so in the present circumstances, where as acknowledged in the Polgahawela OIC’s letter, Sathkumara has never evaded the Police and has not threatened witnesses. The hour is nigh to end his arbitrary detention, and it is up to the right thinking persons in the judiciary, the AG’s Department and the Police who seek to adhere to the letter and spirit of the law, to act lawfully and judiciously and correct this grave injustice and cleanse that dark stain on Lady Justice.