Buddha’s Bulldogs Vs. The Cloud Dweller: The Strange Case Of Shakthika Sathkumara’s Ardha

By Ruwan Laknath Jayakody –APRIL 20, 2019

Ruwan Jayakody

Preface 

“The hacked temple, in the flaccid sky, like a boil festers, uncircumcised

Underneath, the testes of the dagoba, the stupa of nuclear argot

The moonstone studded kotha like a conical spired necklace of pearls, juts out, its budding priapus of engorged veins, parts the innocuous and fluffy, grunting beef curtains, and ejaculates into the blooming vivisection of the sun’s glory-hole pate 

O future! Rid us of this rot.” – A description of the Sambodhi Chaithya in Colombo 01 by the poet Ruwan Laknath Jayakody

Introduction

By arresting a short story writer for publishing alleged religiously offensive content, and using domestic legislation enacted to enable the enforcement of an international human rights instrument belonging to the international bill of rights for the purpose, in order to appease the histrionic self-righteous dictates of holy cows and their theocratic orthodoxy of politically correct, anti-progressive, wholly regressive, infallible majoritarianism, Sri Lanka has taken a transitional step from libertarian democracy towards the conservative dystopia of Fahrenheit 451 and the extremism of medieval inquisitions, thereby reigniting the fires of that age old debate on two oft conflicting rights – the freedom of expression versus the freedom the religion. 

The facts of the case 

According to various news reports (electronic, online and print), Shakthika Sathkumara, a 33-year-old father of two and award winning short story writer, also employed as a Government servant (a Development Officer attached to the Nikaweratiya Divisional Secretariat), was arrested by the Polgahawela Police on 1 April after a group of Buddhist monks led by Ahungalle/Angulugalle Siri Jinananda attached to the Buddhist Information Centre, Deldeniye Rathanasara, Daluhenegedera Medankara, Pallewela Rathanasara, Udugama Premananda and the Young Buddhist Defence Front had complained to the Inspector General of Police (IGP) on 25 February over a work of fiction (short story) authored by Sathkumara titled Ardha (Half/Partial), which was posted online on social media (Facebook). The charge (trumped up?) brought against Sathkumara is allegedly committing the offence of propagating or advocating religious hatred that constituted an incitement to discrimination, hostility or violence. The Internet Media Action (IMA) organization in a press release issued in this regard claimed that the said Centre had also requested the IGP to ban, under the International Covenant on Civil and Political Rights (the ICCPR is an international human rights instrument to which Sri Lanka is a State Party to) Act, No. 56 of 2007, a soon to be published short story collection by Sathkumara.

The complainant-plaintiffs claim, that the said story by the defendant respondent, to which they object to, which dealt with among others homosexuality among members of the Buddhist clergy, sexual abuse in temples and a young monk disrobing and leaving the monastic order of the Buddha Sasana following an act of apostasy and renunciation yet remains non-heretical, was derogatory and defamatory to Buddhism and therefore constituted an alleged insult to the Buddhist faith including the life of the Buddha and the Sangha, and had thus taken offence to such.

Upon being produced before the Polgahawela Magistrate’s Court on 1 April, Sathkumara was subsequently remanded until 9 April by Polgahawela Magistrate Nelum Priyadharshini under the ICCPR Act. On 9 April when the case was taken up for hearing again, Sathkumara was ordered to be placed further in remand custody till 23 April. Attorney Sarath Dassanayake had appeared for the complainant plaintiffs while President’s Counsel (PC) Singhanathage Tharapathi Jayanaga had as per a request by J.C. Weliamuna PC appeared for the defendant respondent. 

Dassanayake had on the date of trial claimed that Sathkumara through his story had insulted Buddhism, the Buddha Sasana and the Buddhist clergy, an allegation which Jayanaga PC had denied, claiming in turn that nothing of the sort as alleged by the prosecution (alleged insult to the Buddhist doctrine of beliefs) had occurred as a result of the said artistic creation/production and that the religion in question had not been insulted. The monks have submitted that the Facebook wall on which the said story was posted had allegedly contained a semi naked image which in turn was intended to offend the sentiments of Buddhists in relation to the Buddha’s life as Siddhartha, a layman.  

“In Court, whilst emphasizing that Sathkumara is neither a criminal nor a murderer, we produced his educational qualifications and the relevant portions of the books he has written and their contribution towards the development of Buddhism. We also cited case law such as the judgment given by Dr. R.B. Ranaraja when in a Kandy High Court case it was held that Courts must not be arbiters of morals and that Courts should not be rubberstamps to regulate unreasonable applications by the Police while in Mahanama Tilakaratne v. Bandula Wickramasinghe, Senior Superintendent of Police And Others, Justice Ranjith Dheeraratne held in relation to issuing a warrant that such must not be issued by a Magistrate to satisfy the sardonic pleasure of an opinionated investigator or prosecutor, and in Sebastian Fernando v. Katana Multi-Purpose Co-Operative Society Limited., And Others, Justice Mark Fernando in relation to cases where two statutes are involved, held that harsh laws must be narrowly interpreted and that the interpretation which avoids the penalty must be preferred. In such a context, Section 3(1) of the ICCPR Act is a harsher law when compared with Section 291B of the Penal Code,” Jayanaga PC added. The defence is presently pondering its next course of action in the form of filing an application for bail and/or a revision application in the relevant High Court. Dassanayake’s contact number could not be found by the author. 

Meanwhile, Co-Convener of the Purawesi Balaya (Citizen’s Power) civil society organization, Gamini Viyangoda announced that a Fundamental Rights (FR) petition especially naming the Officer-In-Charge of the Polgahawela Police Station as the first respondent will be filed by Sathkumara in the Supreme Court with the involvement of a PC upon the conclusion of the Court vacation period, which ends this week. 

Applicable Legal Regime and Critical Analysis 

Section 3(1) of the ICCPR Act states, among others, that no person shall propagate or advocate religious hatred that constitutes incitement to discrimination, hostility or violence, and if found guilty of attempting to commit the said offence, the convict is liable to face a maximum term of rigourous imprisonment of 10 years. Under this Act, bail can only be granted by a High Court or a Court above the High Court level and that too under exceptional circumstances, the latter which remains undefined in the context of the Act, thus allowing for wide judicial discretion. 

Section 291A of the Penal Code holds that anyone who with the deliberate intention of wounding the religious feelings of anyone, utters any word, among others, commits an offence which if found guilty carries a maximum term of imprisonment of a year and/or a fine while Section 291B of the same deals with the deliberate and malicious intention of outraging the religious feelings of any class of persons by words written, insults or attempts to insult the religion or religious beliefs of that class, and upon conviction carries a maximum term of imprisonment of two years and/or a fine.

It must be noted that Article 10 of the Constitution guarantees the freedom of thought and conscience (a short story is partly the product of both) while the freedom of speech and expression including publication (includes short stories) is enshrined in Article 14(1)(a). Further, Article 14(1)(f) provides for the freedom to enjoy and promote one’s own culture (short stories which fall within the realm of literature are an aspect of culture) and use one’s language (the medium in which the short story is written) while Article (14)(1)(g) allows one to engage in a lawful occupation and profession (short story writing and publishing falls within the scope of a lawful occupation and profession). 

Also, Article 14A(1) provides for the citizen’s right of access to information which in turn is required for the exercise or protection of a citizen’s right. As the author along with Faizer Shaheid previously noted in their review of a draft Right to Information (RTI) bill, the fact that every person shall have the right to hold opinions without interference or subject to restriction and the right to freedom of expression which shall include the freedom to express, seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice, must be recognized within the context of freedom of information.

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