By Namini Wijedasa
The Human Rights Commission of Sri Lanka (HRCSL) has raised alarm about a spate of recent arrests of persons for statements they had made on social media, particularly about the spread of COVID-19.
There are at least eight recorded cases, all before the Magistrate’s Court of Colombo, the HRCSL told the Sunday Times. The alleged offences include speculating about a COVID-19 affected childbirth at a private hospital; claims that Muslims are being subjected to an “ideological warfare”; the spreading of “false” information that the virus has killed ten people; and claims that the Kotelawala University Hospital is reserved for VIPs.
One person was detained for posting a video on Facebook saying police actions to curb the spread of COVID-19 must be stopped and that religious observances should be permitted to overcome the virus. Another was taken in for, in a Facebook comment, insulting the founders and followers of a particular religion and publishing disfigured pictures of those founders.
There was also an arrest for the “spreading of false information through social media with regard to COVID-19” but the B report does not disclose a specific offence. Another was for stating on Facebook that President Gotabaya Rajapaksa has tested positive for COVID-19.
A range of laws have been invoked. They include the Quarantine Ordinance, the Penal Code, the Police Ordinance, the Computer Crimes Act and the International Covenant on Civil and Political Rights (ICCPR) Act and even the Sri Lanka Disaster Management Act.
The Commission observed an increasing number of such arrests since the Police Department issued a letter on April 1 warning of strict legal action against those who publish false and malicious statements over the internet against public authorities working to contain the virus.
“The letter clearly conveys the message that criticism of officials will not be tolerated,” Chairperson Deepika Udagama wrote to C D Wickramaratne, Inspector General of Police (Acting). “…any action taken to limit the freedom of expression and other such rights in a democracy, even during a period of emergency, must be within the framework of the law.”
The warning that action would be taken against those who criticise officials “is viewed with deep concern by the Commission as it is bound to have a serious chilling effect on people’s freedom of expression”. Any arrest for the mere criticism of public officials or policies would be unconstitutional.
The Commission recognises the need to lawfully curb misinformation that can cause panic and pose a serious threat to public order and public health. “However, such arrests must be legally valid, must not be arbitrary and disproportionate and must not be carried out in a discriminatory manner,” Dr Udagama states.
The legal basis for the use of provisions in the Quarantine Ordinance and the Disaster Management Act is questionable, HRCSL holds. Section 4 of the Quarantine Ordinance, in terms of which arrests were made, can be invoked only when a regulation made under that law has been violated.
“It is not clear how the alleged statements for which various persons have been arrested violate any of the existing regulations made under the Ordinance or how they obstruct the discharging of duties of officers authorized under the Ordinance,” the Commission says. It is also questionable whether Section 24 of the Disaster Management Act can be invoked in the absence of a proclamation, approved by Parliament, declaring a state of emergency in the country. It bans the assault, obstruction, threat, intimidation, abuse or insult of any person exercising any power or duty conferred upon him by the Act.
The Commission repeatedly calls for “sound legal basis” for action taken by law enforcement authorities. There must also be careful differentiation “between genuine mistakes, statements made in good faith or the public interest (such as by whistle blowers) and those statements that are intentionally calculated to cause mischief”.
There is an urgent need to quell hate speech through the law, the HRCSL accepts. But it is essential to ensure that Section 3 (1) of the ICCPR Act—which states no person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence—is invoked in a non-discriminatory manner, providing protection to all communities.
“Our observations on arrests made thus far…do not make It possible for us to come to a reasonable conclusion that the provision has been invoked in a non-discriminatory manner,” Dr Udagama says