21 April, 2024

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The Insane Use Of The ICCPR Act

By Basil Fernando

Basil Fernando

In recent times there have been several instances of blatant abuse of ICCPR act, namely the article 3 of the said act.  Article 3 reads as follows;

“3.(1) No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. 

   (2) Every person who

  1. Attempts to commit;
  2. Aids or abets in the commission of; or
  3. Threatens to commit,

An offence referred to in subsection(1), shall be guilty of an offence under this Act.

    (3) A person found guilty of committing an offence under subsection(1) or subsection (2) of this section shall on conviction by the High Court, be punished with rigorous imprisonment for a term not exceeding ten years.”

The most operative part that is being abused is article 2(4) which reads as follows: “An offence under this section shall be cognizable and non-bailable, and no person suspected or accused of such an offence shall be enlarged on bail, except by the High Court in exceptional circumstances”. It appears that the sole purpose for which this act is being used is to deprive anyone suspected or accused of an offence under the act to be deprived of availing themselves of the right to bail through recourse to a magistrate as early as possible. In fact, the magistrates are deprived of the right to protect the individuals concerned as is required under the normal law. 

In our legal system, the magistrates have the function of protecting persons from illegal arrest and illegal detention at the earliest possible opportunity. This is not only a legal requirement but the entire legal system, democracy and the rule of law is heavily dependent on the power of the magistrates in order to protect persons from illegal arrest and illegal detention. 

Throughout the civilised world, development of the power of the magistrate to decide at the earliest possible opportunity on the legality or otherwise of arrest and detention was arrived at after centuries of bitter struggles. Much bloodshed and unrest and political upheavals which resulted from arbitrary use of powers of arrest and detention  led to a global consensus that whenever a person is arrested or to be detained such a person should have the earliest possible opportunity to have an opportunity to review such a decision by a person who decides the matter entirely on the basis of law. 

The distinction between police officer including a CID officer or any other person other than a judicial officer deciding on the validity or otherwise of arrest and detention is that the judicial officer will decide the matter entirely on the basis of law while those who act on behalf of the executive are neither bound nor competent to decide on the matter in the same manner as the judicial officer. 

An arrest and detention is the most serious attack on the freedom and the liberties of an individual. To live in an environment in which there are no grounds for an unreasonable fear of arrest and detention is the most basic precondition of an open society.

It is this fundamental realisation that has been inbuilt into the law by granting the power of the magistrates to decide on the legality or otherwise of an arrest and detention in the earliest possible opportunity. 

Article 3(4) is a direct attack on this most fundamental element of protection of an individual as well as protection of society collectively. 

Therefore, such a grave undermining of this basic protection could be done only on rarest of occasions and to the most limited extent possible. 

Examination of several cases where the ICCPR act has been used in recent times clearly demonstrates that there was no ground of any sort to use such a draconian measure to deprive this fundamental protection to the persons involved. 

In none of these instances, there had been any threat or an attempt to commit or aid and abet to commit or threatening to commit such acts with a view to propagate war or advocate national hatred, racial hatred or religious hatred. Article 3(1) also requires that such acts should constitute incitement to discrimination, hostility or violence. 

Thus, the heart of the matter is that there should be either a propagation of war and in all the known recent incidents, there had not been any allegation of such a propagation of war; there had also not been an advocacy for national hatred or racial hatred or religious hatred. Nor have there been allegations of incitement to discrimination, hostility or violence.

Thus, there is no alleged act of committing any of the crimes that are being mentioned in the article 3(1) of the ICCPR act. 

Where there is no criminal act, there cannot be a crime. It is simple common sense that the beginning of a criminal allegation should be the existence of a crime. And crime is defined by our law as constituting those elements which constitutes such a crime. Where there is no such element, making an allegation and worse arresting a person is itself irresponsible and, if such irresponsible act is pursued further, could itself constitute a criminal act. 

A simple way to illustrate is that, if an allegation is made against somebody of committing a murder and in fact, no person has been murdered at all, it is the highest form of absurdity to arrest such a  person for a murder that has never happened. Similarly, it could be said of every crime in the penal code and other statutes that the first step in deciding to arrest a person should be the existence of such a crime. 

Pure allegations of crimes by way of mistaken beliefs or worse deliberately malicious intentions is no reason to arrest a person or to detain a person if in the very first place there is no factual information that a crime has taken place. 

Thus, mere attempts to instigate arrest without revealing factual details of a crime that has taken place would itself be an attempt to manipulate and to abuse the legal process. 

Duties and responsibilities of the arresting officers

It is a legal obligation for an officer in charge of an investigation as well as all those who execute the orders of such an investigating officer to first of all ensure that a crime in terms of the particular offence stipulated in the particular statute (in this instance article 3(1)) has taken place. In any crime, if the investigating officer does not have adequate factual information of what may constitute a crime has taken place, he does not have even the jurisdiction to initiate an investigation into a crime. An investigating officer cannot claim that due to the ignorance of law, he thought there was a crime committed, although he did not have any factual grounds to base his initial judgement. An investigating officer also cannot take refuge by saying that he had received some complaints and simply because of complaints he is arresting and making orders for detention of a person. 

In short, the mere fact that the statute states that an offence under the ICCPR act is not bailable it does not restrict the power of the magistrates to enquire as to whether there is basically a factual ground on which basic prima-facie case exists of the crime stipulated by the statute has taken place. Therefore, to claim that the magistrates do not have the power to grant bail in instances where in fact there is no prima-facie case being established if a crime has taken place would be an absurdity. 

The abuse of words like non-bailable to give some kind of draconian powers to investigative officers to arrest persons without even having factual basis of a commission of a crime would reduce the entire legal system of Sri Lanka into ridicule. Nobody at all will be safe because out of sheer perversity or other political motives all sorts of allegations could be made about non-existent crimes in order only to avail themselves of the provision of non bailability.

The provision of non-bailability

It is fast becoming in Sri Lanka a habit to punish people by way of denying bail. In law, everyone is presumed innocent and only the persons proven guilty by court (under ICCPR act by high court) could be punished. However, the expectation of arresting and detaining people by the use of non bailability provision, is not in pursuit of an investigation but to punish a person by keeping the person as long as possible under custody, purely on the basis of a report of a police investigating officer of whatever particular branch of the police. 

Therefore the abuse of the ICCPR act needs public condemnation. On the other hand suspects who are being arrested and detained where there had not been any factual information of an offence being committed should be released smoothly. Those who abuse their powers should be made to be answerable through appropriate legal actions such as by the use of writ jurisdiction where possible. 

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Latest comments

  • 13
    2

    The unelected idiot Ranil, who even lost his own seat, ……. in desperation, is willing to push the envelope any which way just to keep himself and his cronies in power a little bit longer ……

    Just like the unbelievably idiotic crap his power-hungry uncle JR did …….. it’ll set a precedence for the future tyrants ………. standing in line ……..

    Why can’t this 74-year old fart of a stupid power-hungry bastard just die ……… and leave the country and the people in peace?

    Hasn’t he done a lifetime of enough damage already?

    • 4
      0

      1
      Heart-burning public statements are more or less everywhere. However, they are more common in developing countries than in developed countries.
      Our Hell (created by Rajapaksa) hates people who call themselves “Sinhala Buddhists” because they are intolerant of others and their public statements.

      For example, if a non-Buddhist Sri Lankan criticizes “Sinhala Buddhism”; Not waiting to be broken into pieces. We know that Dr. Safi (a fake story of Muslim Sri Lanka) attacked the Mar Sangha force with Jayasumana, breaking the true foundation and standard.

      https://www.youtube.com/watch?v=6k5JnRWNEOA

      Most of them come from the rural corners of Sri Lanka. Many of them wear Sinhala Buddhist banners on their foreheads and any body parts.. The string bands on which Pirith chanted, the thick bands worn on the wrist, have turned into fiber ropes over time.

      tbc

      • 5
        0

        2
        I am not against proper laws because homo sapiens are real beasts when there is no law and order in a society. Same in SRI LANKA. It should apply equally to everyone.
        In retrospect, this has nothing to do with religious affiliation or kindness, but their twisted upbringing and cultures.

        See how over 60% of English people believe God needs the monarchy. More people still believe in the myth that God created man than those who do not believe in such myths. The global population is 8000 million (8 billion).
        .
        For example, if someone publicly attacked the royals of the United Kingdom, it would divide the nation in that part of the world. I know of non-English Europeans who regularly visit London to pay their respects to English monarchical events. They are eternal fans of English royalty.
        .
        That is, in the country where democracy was born. What about countries such as ours, where they make every effort to introduce “genuine democratic governance”?

        I think the use of words on stage should be governed within certain moral and ethical guidelines, and only young children can see the difference between honor and respect.

    • 6
      0

      nimal fernando

      “Why can’t this 74-year old fart of a stupid power-hungry bastard just die ……… and leave the country and the people in peace?”

      I am sorry, did Ranil ever attempt to steal your girlfriend/partner in the past? Since you have misplaced your cool I am worried.

      • 4
        2

        “I am sorry, did Ranil ever attempt to steal your girlfriend/partner in the past?”

        C’mon Native! A great fan of Ranil like you, ought to know Ranil is not interested in gals!

        Is his propaganda outfit paying you now to work overtime to make a great ladies’ man out of him? ……. An impossible task handed-over to a women-hater, uh? …… Only in the sunny isle of paradise! :)))

        The only person who stole my gal is Old Codger! ……. And I can’t thank him enough!! :))))

        • 4
          1

          nimal fernando

          “The only person who stole my gal is Old Codger! ……. And I can’t thank him enough!”

          Who was it? Was it Shenali Waduge, or Sarath Weerasekera’s sister, or Champa, Gnana Akki……?
          Poor old codger.

          Are you saying Ranil’s marriage to Maithree was an arrangement similar to Rock Hudson’s three-year marriage to Phyllis Gates? Unlike Ranil Prof Maithree Wickremesinghe is a learned person, has published many papers and books. Why did she marry him?

          • 7
            0

            Native Vedda,
            Politeness demands that we leave Maithree Wickremesinghe alone.

            • 3
              0

              Nathan

              “Politeness demands that we leave Maithree Wickremesinghe alone.”

              Did I say anything bad about learned lady Prof Maithree Wickremesinghe?

    • 3
      1

      nimal, I wish that you help me to understand some of your language.
      … lost his own seat, I fully understand. I totally agree.
      … unelected, I somewhat understand. I reluctantly agree.
      … idiot?
      Is he the only ‘idiot’ who damaged? Damn it!

      • 2
        0

        Nathan,
        I believe Nimal gets a kick out of provoking straitlaced innocents like you……

        • 1
          0

          Oh, no. Innocent, I am not.
          I’ll wear the cap for now!

        • 3
          0

          old codger

          “I believe Nimal gets a kick out of provoking straitlaced innocents like you……”

          We also get a kick out of provoking nimal the cool.

      • 0
        0

        Mr. Nathan,

        You’d better contact Bandarawela Joker who is always praising NF these days. He can tell you about the language settings of NF or others.
        :
        The main prerequisite for SM to hero-worship anyone is to stand up against RW and the current interim government.

        SM shared with us today that he suffers from “premature ejaculation” and that hints us that he doesn’t know what he’s talking about. He may have been infected by other commenters on this forum. Reading his comments these days, it can’t be the only health problem he has.

  • 1
    0

    BF, The legal absurdity of defining a criminal act without defining the exact crime or offence, seems to be a contradiction which baffles rational thought. US Department of Justice lists those who paid for fake degrees which creates an aura of arrogance, pride, false prosperity and meaningless verbosity flows out of such. Others have evil plans like the difference between manslaughter and murder.

  • 5
    1

    These arrests are not “INSANE” but “SAINTLY”. The “Stand Up” comedians and sponsors, and even those who attended the show are due to be arrested as publicly announced by the complainant, Rev. Balangoda Kassapa – the ” OMNISCIENT SAINT” of the “Aragalaya”.

    In another sense, one must asses why these “Arrests” are mainly involved personnel in “Social Media”. It is only a “PRELUDE” to the introduction of the “Electronic Broadcasting Authority’ Bill.

    Ranil W though in popular view is a “Joker & a Half”, is well trained and guided to take all “Suppressive” actions to nip in the bud all “Protests” and “Public Opinion” against all such Legislations that would make him the “MAN”- the “DIYASENA” even before “2048”. Another such “DRACONIAN” legislation is scheduled to be brought up shortly is the NEW, Labor Legislation by another “Boot Licker” Minister Manusha Nanayakkara. Many more to come, before which many more “Road Shows” would be staged.

  • 4
    2

    Dear Basil Fernando,
    .
    You are a man I trust, and you always write clearly. However, since I don’t know what this Act is, I located it here:
    .
    https://citizenslanka.org/wp-content/uploads/2015/12/International-Covenant-on-Civil-Political-Rights-ICCPR-Act-No-56-of-2007E.pdf
    .
    A quick comparison shows me that you have quoted accurately. I’ve placed that link because I agree with nimal fernando, above, that ever since the unelected Ranil forced 22 million of us to accept him as President of this land by not making out protests vociferous enough, strange things have been happening.
    .
    Whether Ranil is an idiot, I don’t know. He seems to be doing pretty well for himself. As nimal says must we now wait for this Dictator to die?
    .
    There are at present only two other comments to be seen. “David” is too good, believing as he does everything in the Bible, but Simon refers to some monk whom I haven’t head of before:
    .
    https://www.google.com/search?client=firefox-b-d&q=Rev.+Balangoda+Kassapa#fpstate=ive&vld=cid:a8974da1,vid:yyF-u8zTkWw
    .
    I’m not going to listen to one hour of that, but I hope that my providing these links will help others more intelligent than I to discuss this strange subject.
    .
    And Basil, thanks again!
    .
    Panini Edirisinhe of Bandarawela

    .

    • 7
      2

      “Whether Ranil is an idiot, I don’t know.”

      There is a difference between cunning and intelligence. ….. In half-made primitive societies cunning/shrewdness – like Mahinda’s Southern cunning – is mistaken for intelligence.

      JR’s cunning/shrewdness came out looking like intelligence while he was at it ……. but in hindsight just look how stupid he was. ……. Most of today’s problems are his creations.

      In “advanced” societies failed leaders have no chance to hang around: not a chance in hell as long as Ranil. ……….. He singlehandedly reduced the oldest political party to 0! …….. If that’s not idiotic, what is?

      His moronic actions now, just to remain in power for a little bit longer – all he has to do is hold an election for him to be discarded – will cause unrepairable damage even worse than JR’s.

      • 3
        2

        Yes, nimal, I agree.
        .
        Ranil doesn’t seem to realise that when a person arrogates to himself all that Ranil has he is asking that he be one day be treated like Gaddafi was. Only it could be worse.
        .
        Qaddafi strutted around in a Libya where people had no idea what democracy was. Here the people are used to be allowed to vote in leaders. It is true that they soon find that they have elected crooks, but now Ranil is sen as having stolen the entire country.
        .
        He has thrown in his lot with those who hated him, for their self-interest. When the crunch comes there will be nobody who has the least sympathy for him. And no reassessment by historians.
        .
        Panini Edirisinhe

        • 1
          1

          See, even without my intending it, all that got turned into bold.
          .
          Like the writing on the wall for Nebuchadnezzar. Fortunately the bold didn’t spread to the more valuable comments by Raj-UK. Bold is more difficult to read,

  • 7
    0

    I am wondering about the law that considers comments made by a professional comedian on folklore, which some found offensive, has grounds for being considered as ridiculing a religion that will ”……propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence…”, serious enough to be a non bailable offence.
    The folklore that surrounds the birth of Buddha, as taught to us at school, are not substantiated facts, just as the belief that God created the world in 7 day, yet, many among white middle Christians, particularly, in the US, are strong believers & many Christian faith schools do not teach Darwin’s theory of evolution, which is widely accepted as a scientific explanation. People have been prosecuted in the US for disagreeing with God as the creator of the universe or even promoting the theory of evolution but that was in the olden days. Now it is the 21st century & there are many jokes about god’s version of creation & ‘creativity’ but nobody is prosecuted for offending ‘believers’ or the Christian faith.
    Cont.

  • 7
    0

    Cont.
    On the other hand, was Natasha disrespectful in referring to Buddha & his father? For Christ’s sake (apologise the pun), we even refer to God in our swearing.
    Certainly, in the case of Natasha, the joke is on gullible people who are unable to differentiate facts from fiction but it is the law makers who are more stupid in bringing such primitive laws. How utterly absurd & laughable it is when laws are brought in to protect fiction. How backward we can be.

    • 6
      0

      Raj,
      “Certainly, in the case of Natasha, the joke is on gullible people who are unable to differentiate facts from fiction”
      In this society, there is a burden on people to conform in public, even if their private thoughts are different. Take Raj Somadeva the archaeologist, on YouTube. The guy is well qualified and educated, doesn’t indulge in fake glorification, but avoids saying anything on sensitive subjects like Buddha’s visits. He’s probably wise.

      • 2
        0

        OC,
        I think so-called artists should do some research before misusing their opinions publicly on issues any populace might be upset about. Sri Lanka and like-minded nations mostly stuck to so-called cultural themes. If it happened in India, at least a few hundred would commit suicide. And it would not have been any different if such public statements about Christianity had surfaced in Germany, Great Britain and France 🇫🇷, even if the wave had not gone so far.

        • 2
          0

          LM,
          “before misusing their opinions publicly”
          This was a private gathering. Even Jerome’s was inside his church.
          True, India is worse.

  • 9
    0

    In the case of Natasha – a comedian it’s clear that Buddhist Monks and those Buddagama Premies have directed the Police and the Police have directed the Courts. If this is not the case and if the courts used commonsense Natasha would have been bailed out. When the courts give a suspended sentence to a Senior politician who has taken “Kappam” and was found guilty, the Speaker allows him to sit in the Parliament, and above all the Rajapakse’s party SLPP appoints him as the Government Whip, which shows clearly that there is no common sense or equal justice prevailing in Sri Lanka.

    • 3
      0

      So indirectly your saying what the Tamils have said all along. Sri Lanka judiciary is a mockery of justice, run buy extremists Buddhists and racists where minorities cannot expect justice.

  • 0
    3

    Did Prince Siddaththa walk when he was born? We don’t know. I personally know a child who stood up in his crib when he was 5 months old. Five months. Interestingly, the child was born on a Full Moon Vesak Poya Day! He started walking very early. When he walked first, he didn’t hold onto anything for support. He balanced himself and walked like an adult. As a result, the child got bow-legs as his legs were too weak to carry the body. Anyway, he recovered naturally after a few months.
    Then, there were King Dutta Gamini’s 10 giants who had extraordinary powers.
    Our ancestors, who had supernatural powers, had created rain simply by talking to the sky.
    Lord Buddha entrusted Buddhist monks to help paddy farmers by reciting a certain Sutta to make rain.
    According to Greek writers, during King Dharma Parakramabahu’s reign, when alms were delayed, Maha Sanga caused the Sun to stop as they had to have lunch before Solar noon.
    I am telling all anti-Buddhist organized groups in Sri Lanka, do not undermine the power of our Maha Sangha. They are very patient and tolerant right now. But, they can easily turn the tables!

    • 3
      0

      Champa,
      “Parakramabahu’s reign, when alms were delayed, Maha Sanga caused the Sun to stop as they had to have lunch before Solar noon.”
      You need help. SOON.

      • 0
        3

        old codger
        Ha ha ha, hard to digest, isn’t it? There is a written record about it.
        There is one specific Sutta which causes rain when chanted. Jaffna was a wetland when there were Sinhalese Buddhists. Since the forcible removal of the Sinhalese from their ancestral lands in Yapa Patuna (today Jaffna) by the Dutch, Jaffna became a dryland.
        About the other topic, there are children in Sri Lanka who were born on Vesak Full Moon Poya Day. Some have become monks including the one I mentioned in my previous comment. It is common knowledge among Sinhalese Buddhist mothers that there is a mysterious connection between the Full Moon Poya Day and childbirth.

        • 0
          0

          old codger
          If you have forgotten, Sinhalese are the only nation in the world who have a written history in chronological order. “Tipitaka” is all about the history of Lord Buddha and SinhalaDvipa. In addition to that, we have other written records such as, “Wansa (Vamsa)”, “Valiya”, “Kadayim-Poth”, “Tudapath”, “Patunu”, “Vistharaya” “Siritha” “Ama” and “Lekam-miti”.
          Do you know, our “Kadayim-Poth” describe boundaries of the ancient divisions of SinhalaDvipa, the state of every village, the number of Buddhist temples and amount of land dedicated to them, the amount of paddy land in each village, the height of water in each irrigation tank, the number of sorowwas (sluice gates) in each tank, the number of lakes, the number of dams and tracts of land, and even the details of trees, animals and birds in each village.
          Our Maha Sangha in the time of settler colonists were smarter than you think. They made colonists translate our history, science, administrative, medicine and Buddhist books into English. If not for the written historical evidence in the English language, the Sinhalese Buddhists could have lost their own country and become stateless like the great nation of Palestinians. (Having said that, I believe that Palestinians also have a written record about their ancient history.)

    • 1
      0

      The power of maha sanga? Yes, as long as they are protected by political opportunists & gullible Buddhists. As for their patience & tolerance, thugs in robes like Gnanasara, undermine the real (few) monks who strive to abide by Buddhist philosophy. I am ashamed to be a Buddhist in SL, a country where Buddhist monks with little or no education, have the privilege to call the shots & politicians use religion to be in power. SL monks can learn from foreign monks as to how they should conduct themselves.
      Buddhism flourished without being forced on people for centuries & will continue to be so but it is thugs & con artists in robes in the guise of Buddhist monks who have re-written Buddhism that is the threat.

  • 2
    0

    Thank you Mr. Fernando. I love to read your pieces.

    3(1) was probably meant to avoid hate speech against the weak but is being used to use hateful views to punish the weak.

    We all go through comparative religion to arrive at our religious views. That can never be criticised because we must compare religions to have views on religion. Every decent religious studies department has a course on comparative religion. Are we going to ban courses like that?

    When I showed the BBC documentary on the Delhi rape (India’s Daughter), Indians in my American engineering ethics class objected. The movie was not complimentary to Indian men.
    Such censorship leads to the majority putting down minorities

    That attempt to protect minorities through 3(1) seems misused to keep minorities oppressed and fearful.

    Personally, insulting my religious views is ok by me it is like water off a duck’s back. Trying to stop such insults clearly leads to oppressing minorities and empowering the majority when the purpose of hate speech legislation us to protect minorities

    • 2
      0

      Actually the director of India’s Daughter had to flee India in 2015. I have shown in Sri Lanka too — Jaffna, Vavuniya, Trinco and Hatton

      • 1
        0

        Shown the documentary. Sorry for the slop-up

  • 2
    1

    When it comes to Buddhists and Buddhism they have a thin skin but they can spread hatred and hurt other religions with impunity.
    Was what this girl said worse than this?
    https://www.youtube.com/watch?v=wBf1tN8HhE8

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