A young man on the path of maturing adulthood, already building a family and excelling as an artiste, today languishes in jail. He has been dragged away into incarceration on charges that are only a page away from ‘terrorism’ in the law books. In recent decades, others have simply been ‘disappeared’ or prosecuted harshly for doing just as he does – writing and expressing their opinion and feelings.
Shakthika Sathkumara’s crime is that he wrote a short story that touches on homosexuality and child abuse in a Buddhist temple environment. But how is this work of fiction by an award-winning novelist, newly published on the internet, in violation of the law; a violation so significant as to require remand without bail?
Sathkumara, a government development officer by profession and based in Nikaweratiya, was arrested on April 1 this year on the charge of inciting religious hatred and violating international human rights law. He is accused of violating international human rights law as it is enforced within the country under Sri Lanka’s International Covenant on Civil and Political Rights (ICCPR) Act (2007).
Section 3(1) of the ICCPR Act states: “No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. A person found guilty under this section faces imprisonment for a term up to ten years.
Sathkumara was arrested by the police on complaints made by members of the Sangha that his novel Ardha (‘Half’) insulted Buddhism, hurt the feelings of the Buddhist community, thereby disturbing community relations. Although his lawyers have repeatedly questioned the validity of charging Sathkumara with such severe offences for a short fictitious novel published on the internet, the State’s prosecuting arm has chosen to proceed with the case under those charges.
This has meant that Sathkumara remains in remand today until the High Court hears his application for bail.
The accountability of the State to the citizenry means that the administration of justice, specifically, the prosecution of criminal offences by the State, are up for scrutiny (as far as the law and protocol allows) by the citizenry. The use of laws by governments and by the government’s enforcement, investigative and prosecutory branches, must necessarily be under assessment by the citizenry and their legislative representatives.
After the many periods of fierce legal and non-legal assault on political oppositions and dissidents this country has experienced, we are familiar with the heavy-handed use of laws to crush or deter political opposition. There have been many occasions in the past too, when similar heavy handed use of laws by government security and law and order agencies have also affected dissident writers, film-makers, lawyers and justice activists.
It is ironical that no less than a Government State Minister has even more recently remarked on homosexuality in religious environments in crude, blunt, terms, but has yet to be charged with such offences. Certainly, the politician concerned may endeavour to correct any wrong impressions he may have created by his direct assertions about current institutional life.
Whether Sathkumara, having simply written a fictional short story, should have been arraigned in this manner at all is what deserves public scrutiny. Contesting in court the socio-political implications of a novel is a matter of judicial deliberation that usefully stimulates and clarifies the public mind about aspects of public interest. But whether the writer needs to be incarnated while a legal-literary debate proceeds is what needs to be examined.
Thus, on the one side we will look to the judiciary to address this case in its usual, incisive manner and come up with conclusions that firmly uphold justice. On the other hand, we also must examine whether the initiatives by the State to present such cases to Court are not a waste of resources and institutional energies. It is encouraging that the Bench in one hearing has already made a comment about the need for a lighter hand in managing artistic expression.
Recently another court had occasion to sharply question the seriousness of some of the charges being brought forward by the Attorney General in relation to a very high profile criminal prosecution. Courts have remarked on the frivolity of charges in many cases throughout our modern judicial history.
The ICCPR was adopted by the United Nations precisely to enable human creativity to function freely and productively. Sri Lanka, in passing the ICCPR Act in 2007, was taking on the task of enforcing the UN instrument for the benefit of its citizens. It is a bitter irony that there are many personalities and groups that today openly encourage inter-community suspicion and mistrust and, even disdain of particular communities, but little effort has been made to prosecute these violators of the ICCPR Act 2007.