SRI LANKA: UN DECLARES DETENTION OF AUTHOR SHAKTHIKA SATHKUMARA A VIOLATION OF INTERNATIONAL LAW
19/05/2020“We welcome the Working Group’s determination that Shakthika Sathkumara spent four months wrongfully detained in violation of his fundamental rights,” said Freedom Now Legal Officer Adam Lhedmat. “However, we are deeply troubled that the legal proceedings against him are set to resume on May 19 and he faces up in 12 years in prison, if convicted. This highly disproportionate sentence raises serious concerns about Sri Lanka’s commitment to protecting the right to freedom of expression. We call on the Sri Lankan government to comply with the United Nations and drop the charges against Sathkumara.”
Sathkumara is an award-winning author and regular contributor to the literary supplements of various Sinhala-language newspapers. Prior to his arrest, he had been employed by the Sri Lankan government as an Economic Development Officer at the Polgahawela Divisional Secretariat Office.
In February 2019, Sathkumara published a post-modern short story on his Facebook page entitled Ardha. In the subsequent days, an association of Buddhist monks filed a complaint with police alleging the story insulted and defamed Buddhism and Buddhists. The complaint mentions the themes of homosexuality in Ardha and an allusion in the story to an instance of possible sexual abuse in a Buddhist temple. Sathkumara has maintained that he did not intend to insult Buddhism or any religious community by publishing Ardha.
Sathkumara was arrested on April 1, 2019 and charged under two domestic laws: Section 3(1) of Sri Lanka’s International Covenant on Civil and Political Rights Act which prohibits advocating religious hatred; and Section 291(B) of the Penal Code, which prohibits insult to religion. If convicted under both charges, he could face up to 12 years in prison.
After his arrest, Sathkumara was held in pre-trial detention in an overcrowded prison until August 8, when he was released on bail. The conditions of his bail require him to report to the local police station several times a month.
The trial against Sathkumara has been subjected to repeated delays and has not moved past the pre-trial phase. Hearings in this case have been repeatedly delayed by the courts without reason. The next hearing at the trial-level is scheduled for May 19, 2020, when the Attorney General will determine whether to certify the indictment for the charges under the International Covenant on Civil and Political Rights Act.
Freedom Now.
The report by WGAD followers:
Opinions adopted by the Working Group on Arbitrary Detention at its eighty-seventh session, 27 April – 1 May 2020
Opinion No. 8/2020 concerning Shakthika Sathkumara (Sri Lanka)
1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights. In its resolution 1997/50, the Commission extended and clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The Council most recently extended the mandate of the Working Group for a three-year period in its resolution 42/22.2. In accordance with its methods of work (A/HRC/36/38), on 27 December 2019, the Working Group transmitted to the Government of Sri Lanka a communication concerning Shakthika Sathkumara. The Government has not replied to the communication. Sri Lanka is a party to the International Covenant on Civil and Political Rights.
3. The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her) (category I);
(b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II);
(c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);
(d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV);
(e) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V).
4. Delankage Sameera Shakthika Sathkumara is a 34-year-old Sri Lankan national. He is an award-winning writer and poet, having published a number of books and short stories. In addition, he is a civil servant, working as an Economic Development Officer in the Polgahawela Divisional Secretariat. He usually resides in the Kurunegala District.
Arrest and detention
5. On 15 February 2019, Mr. Sathkumara published a short story on social media in a post that was publicly viewable. The text, titled “Ardha”, reportedly tells the story of a young ex-monk who has recently quit the monastic life and who moves into the boarding house of another friend while he pursues a university degree. The story contains themes of homosexuality and alludes to an instance of possible sexual abuse. It belongs to a postmodern literary tradition and is a “frame short story”, which is a type of creative fiction.6. On 25 February 2019, a Buddhist organisation lodged a complaint against the short story before the Inspector-General of Police in Colombo. The organisation demanded withdrawal of the publication and the arrest of Mr. Sathkumara. A representative of the organisation alleged that the work was defamatory to Buddhism and that Mr. Sathkumara was in violation of section 291B of the Penal Code of 1885 and section 3(1) of Sri Lanka’s International Covenant on Civil and Political Rights Act (ICCPR Act).1
7. On 6 March 2019, a group of Buddhist monks reportedly visited Mr. Sathkumara’s place of work at the Polgahawela Divisional Secretariat. They delivered a petition against him and his literary work, particularly in relation to Ardha, alleging that it defames Buddhism. Mr. Sathkumara explained that the story was not intended to defame or hurt the religious feelings of the community. He clarified that the story is part of a larger tradition of Sinhalese literature expressing the author’s creative thoughts and views on the world at large. The monks objected that Mr. Sathkumara, as a public servant, cannot defame Buddhism. He responded that public servants also have freedom of expression. Mr. Sathkumara was subsequently informed that an inquiry would be conducted.
8. On 1 April 2019, Mr. Sathkumara went to the Polgahawela Police Station with his lawyer, where several monks were waiting near the Chief Inspector’s office. The Chief Inspector called the monks into his office and spoke with them for half an hour before calling in Mr. Sathkumara. Mr. Sathkumara and his lawyer had a discussion with the monks, explaining that Mr. Sathkumara is an award-winning author, that his work was not intended to harm anyone, and that the post had already been removed from social media. They agreed to settle the matter with an apology from Mr. Sathkumara. Mr. Sathkumara was then asked to make a statement. However, the source alleges that while Mr. Sathkumara was making his statement, the Chief Inspector interrupted and informed him that the issue was a serious matter and that he would not allow it to be settled. After Mr. Sathkumara finished recording his statement, the Chief Inspector informed him that he was under arrest for offences under section 291B of the Penal Code and sections 2(1) and 3(1) of the ICCPR Act.
9. According to the source, during the afternoon of 1 April 2019, Mr. Sathkumara was taken to the Polgahawela Magistrates’ Court following his arrest. The Polgahawela Police provided the Magistrate with a copy of their report and asked that the Court order that Mr. Sathkumara be held in detention until 12 April 2019 while they conducted further investigations. Mr. Sathkumara’s lawyer challenged the police request, arguing that his client is the author of several books and that his story was not intended to insult Buddhism or any other religious feelings. He explained that Mr. Sathkumara had already apologised to the
Buddhist monks. The Magistrate ordered Mr. Sathkumara to be held in pre-trial detention until 9 April 2019 and denied the request for release on bail.
10. The source reports that Mr. Sathkumara was subsequently taken to Kegalle Remand Prison, where he was held in pre-trial detention. Reports suggest that the prison is severely overcrowded, with approximately 800 prisoners forced to share limited facilities designed to hold only 200 individuals.
11. Following the decision of the Magistrates’ Court, Mr. Sathkumara’s lawyers filed a request for bail at the Kurunegala High Court. However, this case was not heard until 9 July 2019 and decided on 5 August 2019.
Pre-trial proceedings
12. On 9 April 2019, Mr. Sathkumara appeared for his first pre-trial hearing before the Polgahawela Magistrates’ Court. During the hearing, the lawyer representing the association of monks argued that Mr. Sathkumara had, through his story, insulted Buddhism, the Buddhist Sasana and clergy. Mr. Sathkumara was again ordered to be held on remand until 23 April 2019.13. On 23 April 2019, Mr. Sathkumara appeared for his second pre-trial hearing, where he filed a petition arguing that he was wrongfully deprived of his liberty, as arrests under sections 291A or 291B of the Penal Code require the prior approval of the Attorney-General.
The Magistrate again ordered that Mr. Sathkumara be held on remand until his next hearing on 7 May 2019. The presiding judge reportedly denied bail on the ground that the Magistrates’ Court does not have authority to grant bail for a person who is accused or suspected of committing a crime under the ICCPR Act, and only the High Court can grant such bail.
14. On 30 April 2019, Mr. Sathkumara’s lawyers filed a petition with the Supreme Court of Colombo, alleging violations of his rights guaranteed by the Sri Lankan Constitution. This petition was set to be argued on 30 September 2019, but has been rescheduled to be heard on 28 July 2020, reportedly without explanation.
15. According to the source, over the next three months, the Magistrates’ Court repeatedly extended Mr. Sathkumara’s detention, despite the fact that the police made little progress on developing the investigation and the case for trial. On 7 May 2019, Mr. Sathkumara appeared before the Magistrates’ Court and was again remanded until 21 May 2019. On 21 May 2019, Mr. Sathkumara’s lawyer argued that the police were unreasonably delaying the case, as they claimed that they required more time to undertake further investigations into the uploading of the short story. Once again, Mr. Sathkumara was ordered to be held on remand until 4 June 2019 and then again until 18 June 2019.
16. On 25 June 2019, the Polgahawela Police reported that their investigation was concluded and that the matter could be referred to the Attorney-General for his decision as to whether charges should be filed. Mr. Sathkumara’s lawyer requested again that he be released on bail, as he had at that point been in custody for 85 days. The bail application was denied, another hearing was set for 4 July 2019, and Mr. Sathkumara’s remand custody was again extended. On 4 July 2019, Mr. Sathkumara’s detention was again extended until 18 July 2019.
17. On 9 July 2019, the Kurunegala High Court heard Mr. Sathkumara’s request for bail, but the judgment was postponed until 5 August 2019. On 1 August 2019, the Polgahawela Magistrates’ Court again ordered an extension to Mr. Sathkumara’s detention.
18. Finally, on 5 August 2019, the High Court granted Mr. Sathkumara’s release on bail in the amount of two sureties worth 200,000 Sri Lankan Rupees each, as well as on condition that he report to the Polgahawela Police Station once every two weeks. According to the source, Mr. Sathkumara was not immediately released following the High Court’s ruling. He was only released from Kegalle Remand Prison on 8 August 2019, after 127 days in detention.
19. At the time of the source’s petition to the Working Group, Mr. Sathkumara had still not been formally indicted and no charges had been filed against him. The Attorney-General is expected to appear in the Magistrates’ Court with a decision on whether indictments will be filed. There has been no further hearing in this matter at the Magistrates’ Court since 1 August 2019.
=====
1 Act No. 56 of 2007. As noted in its Preamble, the ICCPR Act is intended to give legislative effect to certain provisions of the International Covenant on Civil and Political Rights to which Sri Lanka
acceded on 11 June 1980.
WGAD
No comments:
Post a Comment
Note: only a member of this blog may post a comment.