On the abuse of human rights law in Sri Lanka: The arrest of Nathasha Edirisooriya

Dr Alberto Godioli, University of Groningen

On May 27th 2023, Sri Lankan comedian and human rights activist Nathasha Edirisooriya was arrested by the Criminal Investigation Department of Sri Lanka (CID) under section 3 of the International Covenant on Civil and Political Rights (ICCPR) Act of 2007. The ICCPR Act is allegedly meant to implement the United Nation’s ICCPR on a domestic level; in particular, section 3(1) of the ICCPR Act makes it an offense for a person to propagate war or to advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. However, as pointed out by several national and international commentators, this provision is systematically misused by the Sri Lankan authorities to target minority groups and dissenting views, thus fueling religious and ethnic division at a time of exceptional economic and political crisis.

What is particularly striking this time is the nature of Ms Edirisooriya’s contested jokes, which could not by any standard be construed as advocacy of hatred or incitement to discrimination, hostility and violence. The two segments for which Ms Edirisooriya was arrested were performed on April 1st during a stand-up routine at a show called “Modabhimanaya” [Fool’s pride] organized by Colombo Comedy Central (CCC). The first segment mildly satirizes the competitiveness of Sri Lankan parents, and their tendency to constantly compare their own children with other children. To make her point, Ms Edirisooriya describes the behavior of an imaginary parent in the era of the Lord Buddha, comparing their own child to young Siddhartha (referred to here as “Sudhodhana’s child”): “That Sudhodhana’s child, that child walked on the very day he was born… look at our kids, they can’t even keep their heads straight when they are carried. That Sudhodhana’s little fellow, apparently recited a poem the day he was born, look at these guys [she blows a spit bubble to indicate the level of ability of an average newborn baby]; Sudhodhana’s little boy, decided on the day he was born what he wanted to do with his life… our kids wait on us to do everything for them.” In the second skit, instead, the comedian discusses her own experience at a Buddhist all-girls school, and defines those schools as “virgin factories” due to their emphasis on preserving the girls’ chastity. She then jokingly suggests that, when Islamist terrorists expect to be rewarded with 72 virgins in heaven, the majority of these virgins must certainly come from schools like the one she attended.

On May 24th, after CCC released a video of the stand-up routine, Ms Edirisooriya became the target of several threats of physical and sexual violence; details of her address were published online by an ultra-nationalist agitator, inviting others to commit acts of violence against her. Although the comedian soon apologized for any offence the video might have caused, the threats continued, and the news of a police complaint filed by a Buddhist monk was shared online. On May 27th, Ms Edirisooriya was detained by immigration officials at the Bandaranaike International Airport, while she and her partner were about to fly to Singapore to join relatives living there. She was subsequently taken into custody and transferred to the CID headquarters in Colombo.

While the disputed skits may well have offended the most conservative sectors of Sri Lanka’s population, they are clearly far from meeting any of the international standards concerning hate speech or incitement to discrimination, hostility or violence. As established by the UN Office of the High Commissioner on Human Rights with the Rabat Plan of Action, article 20 of the ICCPR (prohibiting advocacy of hatred and incitement to discrimination) requires a high threshold under a six-part test, where each of the six conditions needs to be fulfilled in order for a statement to amount to a criminal offense. The last condition, in particular, focuses on the likelihood and imminence of harm: “Some degree of risk of harm must be identified. It means that the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognizing that such causation should be rather direct.” Needless to say, nobody in good conscience could even remotely detect a direct link – or an indirect one, for that matter – between the jokes uttered by Ms Edirisooriya (who, incidentally, is from a Buddhist background herself) and actual discrimination or hostility against the country’s Buddhist majority. The difference between a statement that might offend someone’s religious feelings on the one hand, and actual hate speech on the other, is long established and widely accepted in international jurisprudence (see Temperman and Koltay 2017 for an in-depth account). The European Court of Human Rights, for example, has reiterated this point in a series of recent decisions in favor of humor and satire concerning religious topics – see for instance Rabczewska v. Poland (No. 8257/13, 15 September 2022), Gachechiladze v. Georgia (No. 2591/19, 22 July 2021) and Sekmadienis v. Lithuania (No. 69317/14, 30 January 2018). 

Moreover, the particular importance of humorous and satirical speech in public life is recognized in several landmark cases from across the globe. In Vereinigung Bildender Künstler v. Austria (No. 8354/01, 25 January 2007), the European Court of Human Right famously stated that “satire is a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Accordingly, any interference with the right of an artist – or anyone else – to use this means of expression should be examined with particular care” (33). Moving from Europe to Africa, this definition is echoed in Peta v. Minister of Law, Constitutional Affairs and Human Rights (CC 11/2016, 18 May 2018), where the Constitutional Court of Lesotho pointed out that “satire as a form of artistic expression is protected by section 14 of the Constitution. In its robust interrogation of the topical issues the press is allowed latitude to employ some measure of exaggeration or provocation. It can rightfully be sarcastic, ironic, humorous and satirical in its commentary” (9). The idea of satire as a vital form of public intervention via “exaggeration and distortion” is further reprised by the Argentinian Supreme Court in Pando de Mercado v. Gente Grossa SRL (63667/2012/CS1, 22 December 2020): “It should be remembered that satire as a form of critical discourse is characterized by sharply exaggerating and distorting reality in a mocking way. […] This type of literary genre constitutes one of the communication tools for criticism, opinions and value judgments on public affairs; an instrument of denunciation and social criticism that is expressed in the form of a ‘hidden’ message behind laughter, jocularity or irony” (14-15). A similar point is made by the Supreme Court of India in Indibility Creative Pvt Ltd v. Govt of West Bengal (Writ Petition (Civil) No. 306, 11 April 2019), stressing that “satire is a literary genre where ‘topical issues’ are ‘held up to scorn by means of ridicule or irony.’ It is one of the most effective art forms revealing the absurdities, hypocrisies and contradictions in so much of life. It has the unique ability to quickly and clearly make a point and facilitate understanding in ways that other forms of communication and expression often do not” (13).

As convincingly argued in the decisions mentioned above, humor can be a uniquely effective way to contribute to public interest debates – this is especially the case with satire, i.e. a form of humorous communication which tackles social and political problems. And to be sure, Ms Edirisooriya’s comedy is a vivid example of how satirical expression can contribute to advancing public discussions on pressing human rights issues. In addition to being one of the very few practicing women comedians in Sri Lanka, Ms Edirisooriya is also an activist and researcher in the areas of social development, gender, and women’s rights, and chose to use stand-up as a tool for self-reflection, storytelling and awareness-raising on these topics. Her arrest is a stark demonstration of how authoritarian governments can twist the spirit of human rights provisions such as the ICCPR, and use them to stifle those very rights that they were supposed to protect. 
Nathasha Edirisooriya has been kept in custody since her arrest on May 27th. If you care about freedom of expression (whether humorous or not), please consider signing this petition.

Click here to listen to Julian Morrow’s interview with Dr. Paikiasothy Saravanamuttu, Executive Director of the Centre for Policy Alternatives — an NGO that advocates for non-violent conflict resolution and democratic governance in Sri Lanka (ABC Radio National, 17 June 2023).

Update: On July 5th, Nathasha Edirisooriya was granted bail under the ICCPR Act by the Colombo High Court. Earlier that day, the Colombo Fort Magistrate had extended her remand until July 19th. We look forward to Nathasha’s release and end to her incarceration.