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People in France demonstrating in support of free speech after the terror attack on the office of the French magazine Charlie Hebdo 

The possible arrest of a popular preacher, and the arrests of a stand-up comedian, a loquacious monk, and several others in recent days have triggered a debate on freedom of expression in Sri Lanka. In the past, too, the authorities have arrested a novelist, a poet and even a woman who wore a kaftan that had a picture of a ship’s helm. Such arrests on charges ranging from the sublime to the ridiculous are becoming more frequent in Sri Lanka, making democracy advocates wonder whether Sri Lanka is an autocratic state.

In simple terms, freedom means our right to act, speak or think as we want. Freedom could mean many things to many people. The love of freedom is a human trait. French philosopher Jean-Jacques Rousseau said man is born free, but everywhere he is in fetters. The renowned US Supreme Court justice Oliver Wendell Holmes Jr. famously described freedom by pointing out that “your right to swing your arms ends just where the other man’s nose begins.”

Rights come with responsibilities. We do not deserve a right if we do not exercise it responsibly. Self-styled prophet Jerome Fernando and stand-up comedian Natasha Edirisooriya may have exercised their right to free speech. But by commenting on Buddhist beliefs, they touched a raw nerve, triggering complaints that they had insulted Buddhism.

Meanwhile, Buddhist monk Rajanganaye Saddharathana Thera, who is known for obscene outbursts targeting politicians, has been arrested on charges of inciting social discord.

Freedom of speech and thought is a universally recognised right. Free speech is essential to ensure good governance. It is argued that our right to speak freely is a prerequisite for all of our other freedoms—and for living in a free society. But even democratic states that have entrenched free speech in their constitutions and United Nations conventions have qualified it by tying it to responsibilities linked to public security. For instance, Article 19 of the International Convention on Civil and Political Rights says:

1.    Everyone shall have the right to hold opinions without interference.

2.    Everyone shall have the right to freedom of expression; this right shall include the freedom to 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 his choice.

3.    The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may, therefore, be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

To comply with the ICCPR, Sri Lanka, which ratified the convention in 1980, has enacted relevant legislation – the ICCPR Act in 2007. The act criminalizes the propagation of war or national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence. Offences under this act are nonbailable except by a high court. However, the arbitrary manner in which the law is interpreted or applied has given rise to criticism that the government is misusing it to silence dissent and persecute minorities.

Reacting to the recent arrests, the international human rights group Amnesty International, in a tweet, accused the Sri Lankan authorities of abusing the ICCPR Act.

However, the problem with international human rights groups is their deliberate failure to give equal importance to responsibilities tied to rights. Advocacy of absolute freedom without restrictions puts such human rights activists in league with libertarian anarchists of the mid-19th century. Anarchism, as a political philosophy, seeks the abolition of institutions such as governments, which it claims maintain unnecessary coercion and hierarchy. Anarchism calls for the replacement of the state with stateless societies or other forms of free associations.

In contrast, the state derives its legitimacy from the social contract. According to a democratic interpretation of the social contract, people have consented to part with some of their rights and vest them in an elected authority so that there will be public order and security in society. While the state is subject to constitutional checks and balances, citizens are required to abide by the rule of law. Accordingly, the right to free speech is governed by laws enacted to maintain public peace. This is in keeping with the principle that the collective well-being of society is greater than an individual’s rights.

This does not mean religion cannot be criticised. In a free democratic society, criticism of a religion should be tolerated or even encouraged, for it is an academic and intellectual exercise, provided such criticism is not an affront to the feelings of its adherents. To support this view, quoting the great French philosopher Voltaire is in order.

Regarded as the first proponent of the doctrine of separation between the Church (religion) and the State, Voltaire, in his Treatise on Tolerance, advocated total toleration of religious belief, but in the same breath, he defended the right to criticize religion and belief systems.  He famously said, “Tolerance has never provoked a civil war; intolerance has covered the earth in carnage.” Voltaire believed religion, as it existed at his time, to be the enemy of reason, so much so that he preferred an absolute monarchy to what he saw as the corrupt institution of religion.

However, insulting religion in the name of free speech is not free speech; it is hate speech. According to the UN, hate speech is “any kind of communication in speech, writing, or behavior that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, color, descent, gender, or other identity factors.”

In the West, where anti-Semitism is not tolerated, insulting Islam is fair game and even promoted in defence of Islamophobes’ right to free speech. The French magazine Charlie Hebdo’s depiction of Islam’s prophet Muhammad as a terrorist cartoon character was defended by the French government and the rest of the Western world, disregarding the fact that the magazine, while exercising its right to free expression, had hurt the feelings of Muslims who love their prophet, and caused communal disharmony. The publication of offensive cartoons led to an Al-Qaeda terror attack on the magazine office in 2015.

Just as free speech is subjected to laws dealing with tort, defamation, hate speech, and security, it should also be subjected to human decency norms, which demand that one should not deliberately cause pain of mind to another.

Given the reasonable constraints of free speech, if a particular religion is ridiculed deliberately, just as Charlie Hebdo did in 2015, then the law should be applied to the offenders. But if someone does it out of ignorance or unintentionally, the matter should be settled with a profound apology. 

Ameen Izzadeen, Journalist. 

This article was originally published on Daily Mirror.
Views in this article are author’s own and do not necessarily reflect CGS policy.