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That a State Minister has called upon President Ranil Wickremesinghe to pardon Gnanasara Thero now serving his most recent sentence of four years handed down by the Colombo High Court last month for ‘outraging religious feelings’ of adherents of the Islamic faith in 2016, should surprise no one.

Politico-military-religious impunity

No doubt, the State Minister in question is largely insignificant in the larger scheme of political realities. Even so, there is little doubt that his sentiments will be applauded by many in his party, the Rajapaksa-led Sri Lanka Podujana Peramuna (SLPP). That this monk has repeatedly thumbed his nose at the law and had been convicted previously (for contempt of court), later granted a Presidential pardon by Maithripala Sirisena is merely incidental to the matter.

This is all part of the culture of politico-military-religious impunity that the Rajapaksas (and also others) employed to stultify Sri Lanka’s emergence as a vibrant modern democracy despite all the promise of a post-independent State with high literacy and human development indicators. The country has become a beggar of South Asia, only a narrow step in front of Afghanistan in consequence thereof. This is due to the political use of ethnic, religious and racial divides as battering rams to mock at the Constitution.

Over the Palk Straits, the BJP-led Government of Narendra Modi is transforming India’s long praised secular state into an unrecognisably anti-rights, anti-Constitution but ‘divine’ Hindutva nation at the speed of greased lightning. This subversive process is unlikely to be seriously interrupted by on-going elections to the Lok Sabha where Modi is seeking an unprecedented third term in office. In Sri Lanka, a similar majoritarian project was derailed owing to the crass greed and corruption of the Rajapaksa dynasty and their deaf, dumb and blind loyalists.

A peculiarly aberrant
example of monkhood

But to be clear, the ‘Rajapaksa politico-military-religious project’ has not yet been stamped out despite bankruptcy being forced down the throats of citizens. A few months ago, a shop owner in the neighbourhood where Gnanasara Thero’s temple is located, expressed his anger at his behaviour. ‘I am a good Buddhist but how can a monk like this be allowed to wear robes and talk in such filth? How can the law be silent?’ he asked. Well, the law is not silent as numerous judgments from the Magistrate’s Court to the apex court have shown.

Most recently the High Court decision sentencing the monk to a jail term is another good example, we will return to that discussion later. Certainly Gnanasara  Thero is a peculiarly aberrant example of impunity afforded to Sri Lanka’s ‘political’ monks. But there are many others who practice those same privileges and are allowed to escape unscathed. This is why I questioned last week as to the positions of contending Presidential election candidates on these and other deadly symptoms of the ‘majoritarian State.’

That poses the most obvious obstacle to establishing an ‘inclusive Sri Lankan identity’ hailed as the stirring albeit highly vague rallying call of the National People’s Power (NPP) party led by the Janatha Vimukthi Peramuna (JVP).  The NPP/JVP remains (unsurprisingly) short on the specifics of how they plan to accomplish this, their speakers offer different and sometimes wildly contradictory explanations. On the part of the Samagi Jana Balavegaya (SJB) tipped as the other opposition contender, the entry of discredited left-overs of the SLPP into their ranks is hardly reassuring.

Derogatory outpourings
in a sensitive context

But we must drag ourselves away from this tempting topic and return to the State Minister’s plea to pardon a monk who has disgraced the robes that he wraps around himself. He has apparently offered no rationale for this request except to claim that the statements in question had been only in regard to ‘Muslim extremists’ and not against the ‘Muslim religion.’ If the ministerial worthy in question had bothered to listen to what had been said, he would have realised that this is far from the case. The monk’s rhetoric, which eminently qualifies as hate speech during a press conference called by him, was directly aimed at the Muslim religion and its founder in referencing the Kuragala prehistoric archaeological site.

These derogatory outpourings were made in an extraordinarily sensitive factual context given tensions between Muslims and Buddhists in relation to Kuragala. Interestingly, the monk’s arrogant behaviour outside the courtroom after sentencing was in marked contrast to his humble ‘apology’ to be granted leniency before the Court when making his statement from the dock in that he had not ‘intended’ to hurt  anyone. That ‘apology’ was not accepted by the Court which obviously set little credence by it.

In this context, for a politician to call for pardoning the monk in question is the high point of idiocy. In fact, the process of granting pardons by Sri Lankan Presidents under Article 34(1) has been most grievously abused. Indeed, it is the Court itself which is ‘cancelled’ when Article 34 (1) of the Constitution is used to pardon egregious offenders against whom justice has been effectively administered. This cannot be overstressed. As we have seen in many cases, constitutionally mandated steps in this procedure have also not been followed.

‘Offensive, angry and
outrageous’ statements

In this particular case, the monk had been charged with committing an offence under Section 291 B of the Sri Lankan Penal Code. That criminalises words spoken or written or visible representations insulting the religion or the religious beliefs of any class of persons with the deliberate and malicious intention of ‘outraging the religious feelings’ of that class. High Court judge Aditya Patabendige went beyond the two paragraphs in issue and found that the full impact of the Bodu Bala Sena media conference was to ‘deliberately and maliciously’ outrage the feelings of Muslim adherents.

The tone and tenor of the insults uttered by a ‘man of religion’ were offensive, angry and outrageous. These were not unintentional remarks.  Consequently it was held that elements of the offence in question had been proved beyond reasonable doubt.  Granted, this High Court decision is timely insofar that it related to the behaviour of a monk whose actions had gone beyond the pale of what is legally permitted on many occasions.

That said, it must also be warned that the use of Section 291B or for that matter, Section 291A which criminalises ‘wounding religious feelings’ is a double edged sword. Likewise, Section 3 (1) of the International Covenant on Civil and Political Rights Act criminalises the advocacy of ‘national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’ Effectively these provisions enable prosecutions of citizens legitimately exercising their right to freedom of expression.

A double edged sword

This is exemplified by the police arrest of Shakthika Sathkumara, blogger Ramzy Razeek and stand-up comedian Natasha Edirisooriya. In Edirisooriya’s case, the High Court specifically considered in the order granting bail as to whether a class of persons (in this case, Buddhists) had been offended or outraged, concluding that this was manifestly not the case.

Generally, the accused is harassed for several years and then the cases are dropped. By that time, the damage is already done. That warning aside, it is difficult however not to cheer when a strongly worded judicial articulation asserts the importance of the Penal Code in favour of Sri Lanka’s minority communities.

Certainly that is a marked – and refreshing contrast to the flood of arrests and prosecutions that visibly reflects the State’s ‘majoritarian’ bias.