Freedom of thought, conscience and religion, “including the freedom to have or to adopt a religion or belief of his choice” and freedom of speech and expression are guaranteed as fundamental rights in Article 10 and 14(1)(e) of the Constitution respectively. According to Article 15(2), freedom of expression is subject to restrictions “prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.”
Buddhism, Islam, Hinduism and Christianity are recognized by law, however, Article 9 of the Constitution accords Buddhism the “foremost place” and commits the government to protect it, without recognizing Buddhism as the state religion.
According to the 2012 census, the Sinhalese make up 74.9% of the population and are predominantly Buddhist, or belong to the minority Christian community. Tamils comprise approximately 15.3% of the population and are mainly Hindus, with some belonging to Christian churches. The Muslim community, form the third largest ethnic group at 9.2% of the population. Just over 70% of the population are followers of Theravada Buddhism. There are significant minorities of Hindus (12.6% ), Muslims (9.7%) and Christians (7.4%).
Articles 290-292 of the Penal Code provide the framework for restricting expressions that hurt religious sentiments. Article 291A and 291B limit expressions that are deemed offensive to religion.
Article 291A states:
“Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”
Article 291B states:
“Whoever, with the deliberate and malicious intention of outraging the religious feelings of any class of persons, by words, either spoken or written, or by visible representations, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Police often take strict action against perceived insults to Buddhism. Foreign tourists perceived to be “disrespecting” the religion have regularly fallen foul of the law.
Other laws restricting the right to freedom of expression are the Prevention of Terrorism Act and the International Covenant on Civil and Political Rights (ICCPR) Act. According to Section 2 (1) (h) of the Prevention of Terrorism Act, a person, by words either spoken or intended to be read, or by signs or by visible representations or otherwise causes or intends to cause the commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups shall be guilty of an offense. The act has been criticized for being used to target minorities, critics of the government, journalists and political opponents.
Article 3(1) of the ICCPR Act reads:
“ no person shall […] propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.
While there have not been any reported judgments or trials under the ICCPR Act, there are reports that the Act is invoked to protect religions or beliefs against criticism or insult by restricting freedom of expression. Following a country visit, Ahmed Shaheed, UN Special Rapporteur on Freedom of Religion or Belief said that the “ICCPR Act has ironically become a repressive tool curtailing freedom of thought or opinion, conscience and religion or belief.”
On 8 June 2020, a Buddhist monk and director of the Buddhist Information Centre, filed a complaint against online activist and rationalist Indika Rathnayake claiming that he had propagated fictitious ideas about Buddhism and Buddha. According to Rathnayake, the monk based these accusations on Rathnayake’s Facebook posts – stating that Buddhism originated from Jainism. Reacting to the complaint filed with the Criminal Investigation Department, Rathnayake filed a complaint himself with the Human Rights Commission of Sri Lanka on 10 June 2020, due to this infringement of his fundamental right of freedom of expression. Since the initial complaint was filed, Rathnayake has been questioned by the Criminal Investigation Department. He awaits further information on whether the case will proceed.
On 1 April 2019, rationalist and writer Shakthika Sathkumara was arrested on suspicion that he had committed offenses under Section 291B of the Penal Code and Article 3(1) of the ICCPR Act (2007) through the online publication of a short story that made references to homosexuality within the Buddhist clergy. Following multiple procedural delays, Sathkumara was granted bail on 5 August 2019, and released 3 days later. On 22 May 2020, the United Nations Working Group on Arbitrary Detentions issued an opinion that Sathkumara’s 127-day detention was arbitrary. Despite the completion of their investigation on 25 June 2019, Sathkumara continues to await the decision of the Attorney General as to whether he will be charged. If charged and convicted, he could face up to 10 years in prison.
On 17 October 2019, playwright and filmmaker Malaka Dewapriya was reportedly interrogated for four hours by police from the Organized Crimes Prevention Division after he was accused of distorting Buddhist terminology in a radio series.