As first appeared in Groundviews on 12th June 2020. Written by Shalomi Daniel and Ermiza Tegal.

There is a clear global trend of curtailing freedom of expression under the guise of controlling the COVID-19 pandemic. At the time of writing, 34 countries have been recorded as taking executive action, issuing orders or promulgating laws affecting this freedom.^[i]

Global examples of repression include: Reports that police ordered a doctor in China who warned fellow colleagues of the virus to stop making false comments.^[ii] Further, doctors and nurses were reported to have lost their jobs for whistleblowing on medical supply shortages. In Thailand, journalists and health workers were intimidated for exposing government mishandling of the pandemic.^[iii] In Hong Kong journalists and civil society activists were detained and forcibly quarantined for commenting on government mishandling of the virus outbreak.^[iv] In Pakistan, healthcare workers protesting against lack of safety equipment were detained and in India doctors publicly acknowledged the muzzling of criticism. In June, the UN expressed alarm at the clampdown on freedom of expression during the pandemic in parts of Asia.[v]

In Sri Lanka, within less than 2 weeks of the lockdown, on 1^st April 2020,  a letter was issued by the Police Media Division to all News Directors and Editors stating in relation to public officials engaged in COVID19 health crisis work that “එම රාජකාරී, විවේචනය කරමින් සහ නිලදාරීන්ගේ සුළු අඩුපාඩු මතුකර පෙන්වමින් ඉතා බරපතල ලෙස එම රජයේ සේවකයින් රාජකාරියට බාධා කරමින් සහ ඔවුන් බැන තර්ජනය කරමින් අසත්‍ය හෝ ද්වේශසහගත ප්‍රකාශ …ප්‍රසිද්ධ කරන බව වාර්තා වී ඇත. එම තනතන්ට එරෙහිව ඉතා තදින් නිතිය ක්‍රියාත්මක කිරීමටත් …අත්අඩංගුවට ගෙන ..නීතිමය පියවර ගන්න ලෙසත් …උපදෙස් ලබාදී ඇත”.  Translated, it refers to directions given for legal action to be taken against video and other publications on the internet that criticize the work of state officials and highlight their minor mistakes which hinders their work and for threats and, false and malicious statements.^[vi] To this date the letter appears only to be available in Sinhala leaving the Tamil speaking public of Sri Lanka uninformed of executive intent.^[vii]

Consequent to the police statement and under offences connected to ‘misinformation’ there were an alarming number of reports of arrests allegedly in response to social media messages. On 12th April it was reported that the police were investigating 70 persons for ‘spreading false information across social media’.[viii] The applicable law was unclear. Was it the hitherto misapplied ICCPR Act, the Computer Crimes Act or the Penal code?

By 25th April, the Human Rights Commission of Sri Lanka (HRCSL) wrote to the Acting IGP, emphasizing due process and that those arrested on grounds of spreading misinformation, must be informed of the reasons for arrest, and produced before a Magistrate within 24 hours.^[ix] The HRCSL reminded the police of the right to comment on or criticize the performance of public officials and stated that criticism and commentary are integral to improve governance and strengthen democracy. The letter concluded by saying “any arrest for the mere criticism of public officials or policies would be unconstitutional.” To the best of the knowledge of the authors there has been no public response by the police or public notice clarifying the police media division communique of 1st April. This signals the limited space for meaningful oversight.

The public messaging on freedom of expression was both clear and unclear. It was clear that law and order agencies were scrutinizing social media communications and that harsh consequences could possibly follows information deemed ‘misinformation’. Yet the criteria as to what was legal and what was illegal for a social media post was vague. Law that is unclear is not law and fails the basic principles of rule of law. This amounts to control or governance by fear.

Robust and transparent public communication ought to be a norm. Crises, including this public health crisis, requires a high degree of information sharing within government and with the public. However, this pandemic was responded to with non-disclosure, use of language of national security and in some instances, violence by those in power. The high level of public communication required for public trust was weak and repression favoured over it.

Purpose and scope of Freedom of Speech and Expression

The freedom of speech, and within it the right to dissent in particular, is integral to a functioning democracy. It is the means by which citizens express what is not working, that they are disadvantaged or that they are aggrieved. It introduces the notion that governments have a responsibility to listen and respond constructively to deliver services, protect rights and ensure non-discrimination. It also embodies the idea that those in power are not always right. These ideas are the building material of a government that serves its peoples and are necessary to conserving public trust. Once this humility is dispensed with, the walls of democracy start to crumble. Protecting free expression for all, equally and without discrimination, communicates to the public that diversity and pluralism are respected. It models for government officers and citizens, tolerance and broadmindedness and welcomes sharing of diverse experiences to improve public service to all.

Sri Lankan jurisprudence on freedom of speech has focussed on the value and scope of this right. In the case of Joseph Perera v. AG [1992] 1 Sri L.R. 199 then Chief Justice Sharvananda commenting on the dispersal of a gathering and arrest of organizers of a lecture on “Free education and popular frontism” said “Free discussion of governmental affairs is basic to our constitutional system. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association, the People are the sovereign, not those who sit in the seats of power. It is the voice of the People which ultimately prevails. Free political discussion is thus necessary to the end that government may be responsive to the will of the people and changes may be obtained by peaceful means.”. The full judgment is worth a read for its elucidation of this right and what it means for civic participation and democracy.

In terms of the scope of this right, ensuring public order is the only justification by which the right can be curbed, if at all. It is not a justification that can be broadly or vaguely used. In Joseph Perera’s case it was held that “In the interest of public order the State can…punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere public inconvenience, annoyance or unrest.” There is emphasis on the need for immediacy of the breach of peace or riot. In Ekanayake Vs. AG S.C. Application No. 25/91 S.C. Minutes of 18.12.91 Justice Fernando said “… the expression of views, which may be unpopular, obnoxious, distasteful or wrong, is nevertheless within the ambit of freedom of speech and expression, provided of course there is no advocacy of, or incitement to, violence or other illegal conduct.”

Anti democratic governance has historically eroded this freedom

Control of dissent, a colonial tool, was maintained by the ruling elite in Sri Lanka. Violence and the law, particularly in the form of the Public Security Ordinance, was wielded against any opposition. In more recent history curtailment of this freedom saw the murder of Richard de Soysa in 1990 and blacklisting of artists. During the war years, Sri Lanka earned notoriety for arbitrary arrests, abductions, murders^[x], enforced disappearances of journalists and restrictions, and censorship, arson and threats to media institutions. Emergency Regulations and the Prevention of Terrorism Act (PTA) were used effectively to silence not only criticism but also attempts to foster understanding or alternate views. Anti-war films were banned in 2000^[xi] and 2013^[xii]. Two notable cases were the sentencing of journalist Tissanaiyagam to 20 years rigorous imprisonment under the PTA and the detention of peace activist Shantha Fernando for over 250 days under the PTA. ‘National security’ was the cover under which the Sri Lankan state encroached on this right.

Post war, freedom of expression continued to be violated. From 2009 to 2014, Sri Lanka was hailed as the fourth most dangerous place in the world for journalists by the Committee to Protect Journalists.^[xiii] In 2018, the proposed Counter Terrorism bill contained sections relating to restriction of expression and threat of proscription^[xiv] and recognized as an offence acts to ‘compel a government or international organization to do or refrain from doing an act’ which potentially encapsulates words and acts of dissent. In early February 2020, the government announced a designated ‘agitation site’ near the Galle Face Green, presumably to restrict sites of protest.^[xv] On 9^th June 2020 a protest that was peaceful, socially distanced and contained a relatively limited number of protestors demonstrating against the police brutality responsible for the death of George Floyd in Minneapolis, USA, was prevented from taking place opposite the US embassy in Colombo. After protestors changed the site of protest 53 persons were arrested with visible use of unprovoked and unreasonable force. Two lawyers were also arrested, one distinctly identifying herself as intervening to question the grounds for arrests and use of violence.

In recent years the ICCPR Act of 2007 which criminalises the advocacy of “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” was ironically used to curb freedom of expression. In April 2019, award winning Sri Lankan writer Shakthika Sathkumara was arrested for the reference of abuse within a temple and was released on bail after 5 months. His case is still ongoing.^[xvi] On 4th May 2019, Dilshan Mohammed, a researcher and analyst, was arrested and charged under the PTA and the ICCPR Act, was released on bail after 34 days and his case too is still before court. In May 2019, it was also reported that the police had filed a case against senior journalist Kusal Perera in terms of the ICCPR Act for allegedly inciting racial hatred in a column he had authored. In the same month, Abdul Raheem Masaheena was arrested under this law for wearing a dress that allegedly depicted a Buddhist symbol. The common thread appeared to be words and acts against Buddhism or the Sinhala Buddhist state. On 10th April 2020, human rights activist Ramzy Razeek was arrested under this law following social media comments by him against hate and discrimination faced by Muslims. There is no information on whether the death threats disclosed by him have become the subject of any investigation.

The lack of legal clarity and discriminate application of the ICCPR Act saw the HRCSL issue a letter to the Police in September 2019, stating that the enforcement of Section 3 of the ICCPR Act had not been carried out in an even-handed manner, and clarified the legal scope of the offence including the level of severity that was required for an arrest.^[xvii] Hate speech at first glance is protected as free  speech and must thereafter be demonstrated objectively to have the ingredient of imminent harm and the intention to cause such harm. There are clear legal tests developed to identify when law enforcement ought to act and how the judiciary can ensure those measures are proportionate and necessary and do not breach fundamental rights.[xviii] Therefore, a complaint of hurt feeling or sentiment cannot be acted upon per say. Yet, this seems to be criteria adopted and some complaints receive attention while others do not.

Accompanied by a governance of impunity 

Selective implementation of the law explains the resounding silence and lack of action against those who were seen publicly generating misinformation, and hateful and racist content on traditional and social media. Raising of communal tensions in small communities, the hundreds of violent acts against religious institutions^[xix], the incidents in Aluthgama in 2012, in Digana and Teldeniya in 2018, and in Minnuwangoda in May 2019, all stemmed from hate speech. The failure to curb actual hate speech on social media that posed actual threat of violence and then led to violence that manifested on the ground is also well documented^[xx]. It is also reflected in Facebook’s apology in 2020 for its failure to curb online hate which fuelled violence against minority Muslims.^[xxi] Those directly responsible for inciting violence against minorities in these instances have rarely been held to account. The ICCPR Act has not been brought to bear on hate speech accompanied by clear calls to violence. The impunity extended after several public speeches of Galagoda Aththe Gnanasara Thero which arguably contained calls to violence, is also a good example of the unequal application of the law.[xxii]

Even during the COVID-19 lockdown, there was hate speech against minority communities in both traditional and social media with one minority identity group portrayed as vectors of the disease^[xxiii]. The increased hate speech has been highlighted for government attention by civil society groups and also four UN Special Rapporteurs.^[xxiv] There are two known recent instances of law enforcement action against those who perpetrated fake news and hate speech against Muslims – the arrest of two persons alleged to have circulated a video of a gathering in a mosque in 2019 claiming that it was in 2020 during the declared ‘police curfew’,^[xxv] and the arrest of an individual who shared an audio clip implying that he was part of the intelligence agency, and levelling several false allegations against Muslims.^[xxvi]

The impunity was stark in the discrimination experienced over freedom to express over commemorations relating to the war. The Police obtained a ‘quarantine order’ from the Jaffna Magistrate which would have prevented members of the Tamil National People’s Front (TPNF) gathering to commemorate those who lost their lives during the war, on information that the gathering would contravene government measures to control the spread of COVID-19.^[xxvii] This order was later lifted by the Magistrate after an appeal.[xxviii] In contrast, the President along with several ministers and senior military personnel gathered to commemorate Ranaviru (War Heroes) Day despite the said government directives against large gatherings in place.^[xxix]

The impunity is clear in the disproportionate use of power seen in the violent police actions against the protest in solidarity with ‘Black Lives Matter’ on 9^th June.^[xxx] The inequality and impunity experienced, is that 53 protestors wearing face masks, maintaining adequate physical distance and staging a peaceful protest, were arrested while a few weeks prior there had been no measures against a funeral procession of a politician at which there were many more people and no visible social distancing. Both instances take place while the Ministry of Health issues guidelines directing that gatherings be limited to 100 persons at one time for election propaganda meetings.^[xxxi]

Impact of overreach

Tracing the use of the law and public statements by the executive in curbing freedom of expression demonstrates that all governments have been complicit in different degrees in contributing to rule by fear and uncertainty. Denial of inequality is institutionalized. Inequality in treatment is an expected and sometimes relied upon feature of governance. Economic interests in development and exploitation, and political interest in nationalism has steered governance away from addressing inequality. As a result, there has been no political will, apart from actions in response to personal or ideological attacks, to systematically roll back the stifling legal regime on freedom of expression and its discriminate application.

In the judgment of Joseph Perera, “Laws that trench on the area of speech and expression must be narrowly and precisely drawn to deal with precise ends. Over-breadth in the area has a peculiar evil, the evil of creating chilling effects which deter the exercise of that freedom. The threat of-sanctions may deter its exercise almost as patently as the application of sanctions. The State may regulate in that area only with narrow specificity”. It is our opinion that as a country we have failed at ‘regulating with narrow specificity’. Overbroad justifications of terrorism and now COVID-19, have institutionalised overbroad regulation of this most valuable right.

Over-reach into this particular freedom perpetuates a chilling effect which deters the exercise of this freedom by broader society. A cursory glance at those targeted by the overreach and one sees a pattern that brings into focus the poor and ethnic minorities usually subject to exploitation and violence. The common thread is social exclusion. The chilling effect is on the socially excluded.

Starting from scratch: Rebuilding a culture of freedom of expression in Sri Lanka

It wouldn’t be a stretch to say that our freedom of expression is in tatters and freedom to dissent is seen as an actionable threat today. It is not only necessary then to protect this right, but also reinstall the safeguards around it. It is necessary to reaffirm this freedom with the people of Sri Lanka and also the leaders in Sri Lanka. It is not the role of political leaders to insist on applause and accolades but to earn it. Receiving criticism is part of the job description. It is not enough to tolerate criticism but to encourage it. Citizen complaints range from dissatisfaction to cries for help. Encouraging feedback and creating a safe space for it becomes a responsibility of governance.

In the short term and as a concrete measure moving forward, it is recommended that the Sri Lanka Police issue a clarification regarding its letter to the media on 1st April, expressly commit to protecting free expression, adopt the guidance by the Human Rights Commission and immediately educate the public and its own officers of the specific circumstances that constitute illegality while constitutionally preserving freedom of expression and the right to dissent. In the medium term, it is recommended that legislative measures roll back on laws that curtail or are misused to curtail this freedom. This includes, for broader reasons relating to civil rights, the repeal of the PTA and perhaps introducing a Freedom of Expression law.  In the long term, it is recommended that political leaders reiterate the right to criticise, question, challenge and debate freely on matters of public concern, create avenues and model constructive engagement.

Shalomi Daniel and Ermiza Tegal are both Attorneys at Law. All comments and feedback can be sent to ermiza [at] gmail [dot] com or shalomidaniel [at] gmail [dot] com.

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[i] https://www.icnl.org/covid19tracker/?location=&issue=9&date=&type=

[ii]  https://www.bbc.com/news/world-asia-china-51403795

[iii] https://www.hrw.org/news/2020/03/19/human-rights-dimensions-covid-19-response#_Toc35446577

[iv]  https://www.theguardian.com/world/2020/apr/26/hong-kong-arrests-and-taiwan-flybys-chinas-advances-its-interests-during-covid-19-crisis

[v] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25920&LangID=E

[vi] https://www.lankanewsweb.net/66-special-news/59435-People-posting-media-showing-malicious-attacks-on-public-servants-on-social-media-will-be-arrested–

[vii]  https://english.theleader.lk/news/692-covid-19-pandemic-freedom-of-expression-rights

[viii] https://www.newsfirst.lk/2020/04/12/police-to-arrest-and-prosecute-those-who-post-false-content-on-social-media/

[ix]  http://www.hrcsl.lk/documentation/statements-recommendations/

[x] Between 2004 – 2010, the killing and disappearance of at least 43 journalists and media workers were reported by Journalists for Democracy in Sri Lanka. http://www.jdslanka.org/index.php/killed-media-workers

[xi] https://www.wsws.org/en/articles/2000/08/film-a07.html

[xii] https://www.wsws.org/en/articles/2013/07/19/film-j19.html

[xiii] Daily FT, Sri Lanka fourth worst place for journalists’ murders to go unsolved (18 April 2014) http://www.ft.lk/article/281932/Sri-Lanka-fourth-worst-place-for-journalists%E2%80%99-murders-to-go-unsolved

[xiv] See Clauses 10(g) and 81 of the proposed Counter Terrorism Act placed on the Order Paper of Parliament on 9th October 2018.

[xv] https://www.businessnews.lk/blog/2020/02/06/agitation-site-designated-for-protests/

[xvi]  http://www.ft.lk/news/Writer-Shakthika-released-on-bail/56-683408

[xvii] http://www.hrcsl.lk/wp-content/uploads/2020/02/HRCSL-letter-to-Acting-Inspector-General-of-Police.pdf

[xviii] See recommendations section in the report https://www.cpalanka.org/wp-content/uploads/2018/09/Confronting-Accountability-for-Hate-Speech-in-Sri-Lanka-2018.pdf

[xix] M Schubert, Restrictions and violence against religious minorities: an incident analysis, Minormatters (2019),  https://www.minormatters.org/storage/app/uploads/public/5d3/7fb/10c/5d37fb10ce12e404095654.pdf; Silent Suppression: restriction on Religious Freedoms of Christians 1994 – 2004, NCEASL and Verite Research (2015) https://www.minormatters.org/storage/app/uploads/public/5b5/6f2/ca3/5b56f2ca3b806736825385.pdf

[xx] S Samaratunge and S Hattotuwa, Liking Violence: A study of hate speech on facebook in Sri Lanka, Centre for Policy Alternative (September 2014) https://www.cpalanka.org/wp-content/uploads/2014/09/Hate-Speech-Final.pdf ; A Taub and M Fisher, Where countries are tinderboxes and hate speech is a match, New York Times (21 April 2018) https://www.nytimes.com/2018/04/21/world/asia/facebook-sri-lanka-riots.html ; T Nazeer, Facebook’s apology for its role in Sri Lanka’s anti-Muslim riots should spark change, The Diplomat (15 March 2020) https://thediplomat.com/2020/05/facebooks-apology-for-its-role-in-sri-lankas-anti-muslim-riots-should-spark-change/

[xxi] https://www.aljazeera.com/news/2020/05/sri-lanka-facebook-apologises-role-2018-anti-muslim-riots-200513101243101.html

[xxii] Minority Rights Group International, Sri Lanka must curb incitement against minorities, says MRG, 17 June 2014, available at: https://www.refworld.org/docid/55fbd9784.html [accessed 6 June 2020], Colombo Gazette, Gnanasara reignites anti Muslim sentiments 3 July 2016, https://colombogazette.com/2016/07/03/gnanasara-reignites-anti-muslim-sentiments/ ; Gehan Gunatilleke, ‘Hate Speech in Sri Lanka: How a New Ban could Perpetuate Impunity’ (OxHRH Blog, 11 January 2016) <http://ohrh.law.ox.ac.uk/hate-speech-in-sri-lanka-how-a-new-ban-could-perpetuate-impunity/> [accessed 11 June 2020]; K Karunaratne, Time to end Sri Lanka’s culture of impunity, (UCA News, 27 March 2018) https://www.ucanews.com/news/time-to-end-sri-lankas-culture-of-impunity/81864 [accessed 11 June 2020]; C Doole, Of Hate Speech, Extremism and Impunity, (Roar Media, 23 November 2016) https://roar.media/english/life/reports/hate-speech-extremism-impunity/ [accessed 11 June 2020]

[xxiii] R Kumar, Free Speech, hate speech and COVID-19: why are we silent? Financial Times (24 April 2020)  http://www.ft.lk/opinion/Free-speech-hate-speech-and-COVID-19-Why-are-we-silent/14-699164 ; Human Rights Watch, Sri Lanka: Due process concerns in arrests of Muslims (23 April 2020)  https://www.hrw.org/news/2020/04/23/sri-lanka-due-process-concerns-arrests-muslims ; Shereena Qazi, Muslims face extra threat as coronavirus stirs hates, Al Jazeera (11 May 2020)  https://www.aljazeera.com/news/2020/05/sri-lanka-muslims-face-extra-threat-coronavirus-stirs-hate-200510183518512.html ; Tisaranee Gunasekara, The President in the Pandemic, Groundviews (4 May 2020)  https://groundviews.org/2020/04/05/the-president-in-the-pandemic/

[xxiv] AL LKA 2/2020, (8 April 2020)  https://www.tamilguardian.com/sites/default/files/File/COVID-19/LKA2-2020.pdf%20.pdf ; M Srinivasan, Muslim Organizations in Sri Lanka concerned over hate mongering, The Hindu (13 April 2020)  https://www.thehindu.com/news/international/muslim-organisations-in-sri-lanka-concerned-over-hate-mongering/article31334589.ece

[xxv] Sri Lanka police arrests two suspects over fake curfew violation video, Economy Next (30 March 2020) https://economynext.com/sri-lanka-police-arrests-two-suspects-over-fake-curfew-violation-video-63047/

[xxvi] Group of Muslim organisations urges IGP to probe hate mongering campaign against their community, The Island (12 April 2020)  http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=221142

[xxvii] Order dated 17th May 2020 in case bearing number BR/677/PC/20 in the Jaffna Magistrate Court

[xxviii] https://www.tamilguardian.com/content/tnpf-successfully-challenge-jaffna%E2%80%99s-magistrate%E2%80%99s-quarantine-order

[xxix] M Srinivasan, Sri Lanka will not tolerate targeting of war heroes: Gotabaya Rajapaksa, The Hindu (19 May 2020)  https://www.thehindu.com/news/international/sri-lanka-will-not-tolerate-targeting-of-war-heroes-gotabaya-rajapaksa/article31626767.ece

[xxx] Police arrest 53 over George Floyd protest in Sri Lanka,  https://www.ucanews.com/news/police-arrest-53-over-george-floyd-protest-in-sri-lanka/88347

[xxxi] Health guidelines for conducting the election amidst the COVID19 outbreak,  http://www.newswire.lk/2020/06/08/health-guidelines-for-conducting-the-election-amidst-the-covid19-outbreak/