A case of selective enforcement

By Tharumalee Silva

The International Covenant on Civil and Political Rights (ICCPR) has come under severe criticism from the public due to the many instances where the Act was allegedly misused by law enforcement authorities.

From the arrests of award-winning novelist Shakthika Sathkumara to Abdul Raheem Masaheena for wearing a dress depicting a ship’s wheel that was supposedly mistaken for a Buddhist “dharmachakra”, the inconsistent enforcement of the ICCPR Act has given birth to a question of selective implementation.

Speaking to The Sunday Morning, President of the Bar Association of Sri Lanka (BASL) Kalinga Indatissa PC stated: “The biggest issue facing this piece of legislation is the lack of knowledge on the part of the law enforcement authorities. This is unsatisfactory. The commencing point of an action based on the ICCPR Act is where a police officer would take into custody a citizen for having committed an offence under Section 3 of the Act. The decision of whether an oral statement, written document, or even a post published on social media leads to a violation of Section 3 of the ICCPR Act is left in the hands of the police officer. He has the discretionary authority of deciding whether the individual should be arrested or not.”

Sathkumara’s arrest was instigated by a group of Buddhist monks who allegedly perceived Sathkumara’s short story Ardha as “inciting religious hatred”.

Further, in the case of Masaheena, her incapability of speaking Sinhala at the time of her arrest subjected her to much discrimination.

According to the fundamental rights (FR) petition filed by Masaheena, she was made to sign a document in Sinhala which she could not read.

Speaking on the issue, former President of BASL U.R. De Silva PC stated that the ICCPR Act was adopted by Sri Lanka to protect communities against racial biases/discrimination and hate speech.

De Silva, however, emphasised the law enforcement authorities’ attitude towards educating themselves on the ICCPR Act and further noted that it is the responsibility of the magistrate to ensure the individual is fairly treated.

“When Shirani Bandaranayake (former Chief Justice of Sri Lanka) adopted the ICCPR Act into the Constitution, she specifically noted that a magistrate should not remand an individual just for the sake of them being charged by the Police; in these instances, a magistrate must become impartial and fair,” De Silva stated.

He stated that the main challenge faced by those arrested is the time duration it takes to address their injustice, adding: “There are two ways one can challenge their conviction if they’re convicted under the ICCPR Act – they can present a fundamental rights petition to the Supreme Court of Sri Lanka or challenge their sentence in the Supreme Court of Sri Lanka. Both of these methods take time.”

Author Sathkumara was arrested on 1 April and still remains in custody, despite having presented a fundamental rights petition to the Supreme Court of Sri Lanka.

ICCPR and minority communities

Former BASL President De Silva stressed the notion of the public losing confidence in the law enforcement authorities due to the selective imposition of the ICCPR Act, discriminating minority communities.

“The ICCPR Act exists to protect civil and political rights of the people, and the arrests of these individuals violate the ICCPR Act within itself as it violates the individuals’ freedom of expression,” he pronounced.

He called upon examples of how many law enforcement authorities filed cases against those arrested due to the possession of swords. De Silva said: “The Police blindly filed cases under the Prevention of Terrorism Act of 1979 (PTA) when they arrested people for the possession of swords, where the Police should have arrested those individuals under the Offensive Weapons Act. The implications of these blunders on the part of the authorities have a huge impact on the citizens and would result in the public losing confidence in the authorities.”

Pointing out the dangers of these practices, De Silva stated that if these incidents continue, the public may view it as their responsibility to ensure democracy, adding that people might go on to take law enforcement into their own hands.

He further noted the importance of widespread knowledge among the public to prevent these unfortunate incidents from occurring.

“The best way to combat this issue is to educate the public on their fundamental rights and especially equip them with the knowledge of the ICCPR Act,” he said.