Does Sri Lanka Need New Hate Speech Legislation?
As a citizen in a post-conflict country, I cannot ignore the issues of ethno-religious violence; as an academic and a theatre artist, I must pay attention to those issues. Thus, my interests in the above topic grew out of the existential disputes I have to face almost every day. Therefore, this paper is coming out of both intellect and conscience. In the foreword of the United Nations Strategy and Plan of Action on Hate Speech which was published in June this year, Secretary General Antonio Guterres wrote the following:
”Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”
While there is a vast international consensus against hate speech, the fine line between encouraging freedom of speech and condemning the latter has resulted in several grey areas. Even if many countries have taken a stance against hate speech, for instance through their legal framework, it has shown to be difficult to define and measure, thus equally difficult to prosecute. With examples from Sri Lanka, the main purpose of this paper is to discuss whether or not the government should enforce the existing laws towards speech or if Sri Lanka is in need of a new hate speech legislation or are there other societal factors that should be taken in to deliberation. Thus, this paper is based on News, Facebook posts and comments from 21st April 2019- 21st May 2019 with regard to the Easter Sunday attack (21st April,2019), the key legislation towards speech in Sri Lanka and relevant literature on Hate Speech, Freedom of Religion and Belief.
On 21st of April 2019, Easter Sunday, three churches in Sri Lanka and three luxury hotels in the commercial capital Colombo were targeted in a series of coordinated terrorist suicide bombings, killing nearly three hundred people and injuring hundreds. Later that day, there were smaller explosions at a housing complex in Dematagoda and a guest house in Dehiwala. According to the investigations, all the suicide bombers were associated with National Thowheeth Jama’ath, a local militant Islamic group. However, this can be identified as one of the most regrettable incident which conduced to arise hate speech among Sinhala and Muslim community in connection with the ethno-religious conflict in Sri Lanka.
Accordingly, hate speech could be recognised as one of the key reasons for ethno-religious violence in Sri Lanka. The government’s response to recent issues regarding hate speech including Easter Sunday attack was to ban social media. But the Facebook posts and comments from 21st April -21st May 2019 prove that certain irresponsible and imprudent statements made by some of the state leaders had become the root cause to arise hate speech among the common people. In some cases they have made false or imaginary statements which lead to ethno- religious violence. Therefore, it is ironic that the government took the drastic decision to ban social media to avoid hate speech and inaccurate stories while creating space to them. Hence, it is important to explore whether or not hate speech is legitimised by the state leaders and if so, the effects this might have on society on a national level and in a global context.
At this juncture where Sri Lanka is contemplating the direction of its policy towards hate speech legislation, it is important to consider the fundamentals of what hate speech is and why is the freedom of speech such a significant concept. It is controversial to give a decisive legal definition to hate speech as it is influenced by a wide spectrum of subjective, regional and social factors. Cambridge Advanced Learner’s Dictionary define hate speech as “speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex or sexual orientation (= the fact that of being gay, etc.)”
“In the context of United Nations Strategy and Plan of Action on Hate speech, the term hate speech is understood as any kind of communication in speech, writing and behaviour that attacks or uses pejorative or discriminating language with reference to a person or a group in other words based on their religion, ethnicity, nationality, race, colour, descent, gender or any other identity factor.”
However, there is already an established range of speech laws in Sri Lanka including:
The ICCPR Act is the most effective piece of legislation in terms of prosecuting offenders of hate speech. Article 20 of the ICCPR states that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The ICCPR gives effect to this through its section 03 which states that “ No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
Nevertheless, the Confronting Accountability for Hate Speech in Sri Lanka: A Critique of the Legal Frame Work Report states that despite being enacted over ten years, there have regrettably no reported judgements or trials that have been concluded under the act.
The Penal Code is also important when considering the legislation towards speech in Sri Lanka. Chapter XV of the Penal Code titled “of offences related to religion” contains six provisions dealing with offences against religion. Among these, Section 291A and Section 291B concern the “uttering of words with the intent to wound religious feelings”( Penal Code of Sri Lanka, Section 291A) and “deliberate and malicious acts intended to outrage religious feelings”( Penal Code of Sri Lanka, Section 291B). Section 120 of the Penal Code has also been used in certain instances to prosecute offenders of hate speech. Thus Section 291A, Section 291B and Section 120 can be cited as the Penal Code provisions on hate speech.
The above report reveals that though the Penal Code drafted in 1883 has been amended numerous times, Centre for Policy Alternatives is unaware of any comprehensive revision undertaken to amend the sections that are currently used to prosecute hate speech. An attempt by the present government to introduce a new provision on hate speech in 2015 was later scrapped due to severe criticism it received for being a near-verbatim reproduction of the hugely problematic section 2(1) (h) of the PTA which seriously encroaches upon of the freedom of speech.
Centre for Policy Alternatives and numerous actors have over the years commented on how the Prevention of Terrorism Act has been used to target minorities, critics of successive governments, journalists and political opponents. Section 2 (1) (H) ( Any person who- by words either spoken or intended to be read or by signs or by visible representations or otherwise causes or intends to cause 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 offence under this act) of the PTA is the most relevant provision in this regard. It has been severely reproached due to the broad and ambiguous manner in which the offence has been described, and is a central reason as to why the PTA has and continues to attract criticism by the international community since it was enacted. Confronting Accountability for Hate Speech in Sri Lanka: A Critique of the Legal Frame Work Report analyses the Tissainayagam judgement which turns of section 2(1) (H), as well as corresponding provisions of the Indian Penal Code, which is similar to Section 2(1) (h) in an attempt to question the suitability of the PTA provision as a “reasonable limitation” on the freedom of expression.
CPA in no way endorses the prosecution of hate speech under the PTA and the analysis it undertakes in this report underscores its continued calls for the PTA’s repeal in its present form. Given the Sri Lankan experience, it is of paramount importance that this pieces of draconian legislation is repealed and any new law that is enacted in replacement be legislated in a manner that is transparent, inclusive and in line with Sri Lanka’s international obligations.
Though the Police Ordinance does not directly refer to hate speech, the police are given ample powers under the ordinance to control and contain situations where there is a threat to public peace and public order. Section 79(2) (Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour which is intended to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence under this section.) of the Police Ordinance provides the police the power to arrest a person without a warrant when any person in a public place or meeting uses “threatening, abusive or insulting words or behaviour intending to provoke a breach of the peace or where the breach of the peace is likely to be occasioned.”
Despite these powers, however, the police were accused of inaction during the recent issues regarding ethno-religious violence. Unfortunately, continuing inaction by the police contributes to the growing culture of impunity. The report suggests that the police must accordingly take swift action to utilize the Police Ordinance to promptly arrest offenders of hate speech and conclude investigations with in a specific time frame without unnecessary delays. Further specialised training should be provided to a team which focuses on incidents of the hate speech and related issues.
It is clear that these laws actually provide quite extensive legislative provisions towards speech. The issue is therefore not one of new legislation, but enforcement of existing ones. The key reasons for the lack of prosecutions under these acts appears to be the lack of awareness among prosecutors, judges and lawyers as well as the political influence and fears of public backlash.
However, the inability to prosecute incidents of hate speech has contributed to a unsecured society who live in fear with a waning or entirely non-existent confidence and trust in state structures. Inaction on holding perpetrators to account has also strengthened the perception that some are beyond the reach of the law, exacerbating culture of impunity already inherent to Sri Lankan society. These are indeed troubling trends in a country that has the potential for genuine reconciliation and coexistence where pluralism, tolerance and the rule of law could be supreme.
One of the major challenges that I had to face while writing this paper is to define hate speech in the socio-political context of Sri Lanka.. It is impossible to give an conclusive international definition to hate speech as it is influenced by a wide range of subjective, regional and social factors. What is hate in one context may not be hate speech in another. For example certain statements made by some of the Sri Lankan state leaders after the Easter Sunday attack cannot be discussed under the legal definitions of hate speech. The day following the attack, one of the ministers made an statement as follows:
“My father asked me not to go the church on Easter Sunday . Therefore I didn’t go. My Father was aware of the attack even though he was at the hospital at that time.” (News 1st: Prime Time Sinhala News-7PM (22.04.2019) In a critical situation where the Sri Lankans were desolated with the news that ten days before the attack, an intelligence memo warning of a possible attack had been circulated, raising questions about whether more could have been done to prevent the attack, the Security General made a statement as follows : “Yes, We were aware of this incident, but we didn’t expect such a huge massacre.” (Hiru News 6.55pm (24.04.2019)
Although there aren’t any pejorative or discriminating words, those statements could be identified as two of the most hurtful statements which remind the distressing experience of Easter Sunday attack for most of the Sri Lankans even today.
Therefore it is clear that defining hate speech is very comprehensive in the Socio-political context of Sri Lanka. It matters that this threshold at which speech becomes hate is determined by a legal frame work considering basic societal factors such as gender, ethnicity, nationality, religion etc. Speech against humanity cannot be taken under this legal framework. Therefore there are serious risks in relying on social norms of morality when defining hate speech.
Conversely, the enforcement of the existing laws towards hate speech is not the only solution for the issues of ethno- religious violence in Sri Lanka. It is very important to pay attention on the root causes for these issues.
In the book “ The Harm in Hate Speech”, Jeremy Waldron argues that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities. (Waldron,2014). This can be applied to Sri Lankan society too. Social norms are disproportionately shaped by the majority opinion. By determining through laws which are culturally acceptable based on common opinion, the insights of the hegemonic class will become rooted in the societal system, at the expense of minority voices to the contrary.
In the article Does Sri Lanka Really Need New Hate Speech Legislation?, Amila Wijesinghe describes the fundamentals of hate speech and the significance of the freedom of speech. Moreover he discuss the importance of recognising root causes of ethno-religious issues in the Sri Lankan community and the enforcement of existing legislation towards speech . He argues that the targeting of hate speech often results in nothing but a pyrrhic victory, whilst ignoring the root causes of many problems and it is open to significant abuse and serves as a useful tool for governments wishing to stifle criticism and distract from the real issues ( Wijesinghe, 2018).
When considering issues of ethno- religious violence in Sri Lanka it is essential to deliberate the freedom of thought, conscience, religion or belief. In the article “Freedom of Religion and Belief ”, Heiner Bielefeldt argues that rather than searching for a common religious or philosophical denominator, freedom of religion or belief does not intend to turn existing differences into a mere ‘variety of rites’, to cite Cusanus. Instead, it appreciates religious and belief related diversity as an expression of human freedom. Accordingly, freedom of religion or belief aims at empowering human beings to freely find their own ways with in the vast area of religious or non- religious convictions, conscientious positions, community based practices, religious socialisation processes etc. “Far from making the world ideologically uniform, freedom of religion or belief brings to the fore the existing and emerging diversity of religion and beliefs, provided they are freely expressed by human beings who are the holders of this human right. Moreover in contrast to the politics of tolerance, freedom of religion or belief does not start from a hegemonic confessional viewpoint.”. (Bielefeldt,2016.p.53-54)
According to the analysis of the Facebook posts and comments with regard to the Eater Sunday attack, it is clear that right to freedom of religion and belief has been violated in Sri Lanka. The terrorist attack on Easter Sunday has been caused to attack beliefs of the Muslim community. Most of the posts and comments can be identified under the discrimination of religion and beliefs. Therefore it is very important to pay attention on the necessity of ethno-religious understanding in a multicultural society. It cannot be accused to one party regarding these issues. All the Sri Lankans should stand against these issues as one nation and try to understand the importance of respecting other cultures.
The article Freedom of Religion or Belief—A Human Right under Pressure written by Heiner Bielefeldt is important in this context. By outlining the basic features of the right to freedom of religion and belief, Bielefeldt attempts to raise awareness that conceptual clarity is needed to defend the normative basis for shaping non-violent coexistence in the religiously and philosophically pluralistic world by institutionalizing equal respect for the dignity and rights of all human beings. Therefore, while considering the enforcement of hate speech legislation in Sri Lanka, it is very essential to pay attention on the above concepts to overcome the issues of ethno-religious violence and to make a better life for all the citizens.
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