Are Hate Speech Laws In Lanka Adequate To Make Arrest
Faizer Shaheid
Sri Lanka has had a long history of De Facto and De Jure racism, but having come off a three decade long war and struggling to find assistance internationally for the attainment of transitional justice, one ought to wonder why extremists still lurk in our midst.
At present we have had racism and extremism brewing from every part of the country, and from every community. Only recently, Dan Priyasad, was arrested for inciting religious hatred. In actuality, it is evident in his virulent videos that he was actually committing ‘Incitement to genocide’ in accordance with the Convention on the Prevention and Punishment of the crime of Genocide (Commonly referred to as the ‘Genocide Convention’).
Following his arrest, pressure was mounted to have the Secretary of the Sri Lanka Thowheed Jamath (SLTJ), Abdul Razik, who is known to be equally notorious for his racist remarks, to be arrested. Indeed he was too.
Despite these arrests, racism was continually spawned among others. While minority communities began propagating peace and harmony, certain renowned extremists from the majority community, donning the orange robes, took pleasure in organizing protest marches that could almost certainly be foreseen to have ended like the Aluthgama Pogrom not too long ago. The top two names that have constantly come up are Ampitiye Sumanarathana Thera and Galagoda Atte Gnanasara Thera.
Being robed members of the clergy, they have thrived on the prevailing impunity and a general exemption to the rule of law in relation to robed members of the Clergy. Even whilst these extremists are known for their street urchin like attitude, questions have been raised as to when the duo would be arrested.
One argument that has been raised is that the laws are inadequate to make arrests for hate speech. Another argument is that such speeches would violate the freedom of expression. While numerous calls have been made to the Police to arrest the duo, nobody has quite come forward to name the laws which would incriminate the duo or any other that comes across as being racist.
The freedom of expression argument
The first point of studying this issue would be to address the case of human rights. Do they have adequate cover in the freedom of expression to state anything with no ramifications? Absolutely not.
Human Rights possesses four distinct features. It is that they are Universal, equal, indivisible and interrelated. While the freedom of expression cannot be undermined as it is given strong emphasis in the International Covenant on Civil and Political Rights (ICCPR) which Sri Lanka has ratified, the very covenant also specifies a limitation in relation to hate speech. Article 20 (2) of the ICCPR reads:
“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The very provision in the ICCPR is re-iterated in Section 3 of the ICCPR Act of Sri Lanka which reads:
“No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
Therefore, the prohibition of hate speech is equally imperative as is the freedom of expression. It is the right of everyone to be protected from those who preach hatred.
An Indictable crime?
Since it is now established that hate speech and hate crimes are prohibited by international law and Sri Lankan law, it may still be contentious whether extremists who commit such crimes can be arrested.
The Penal Code makes mention of such crimes and makes it indictable. If one wished to look for the specific provision, you only need look at Section 291A of the Penal Code which reads:
“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 the 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.”
Other provisions in the Penal Code under Chapter XV tend to address the offences relating to religion. They prohibit the acts of defiling a place of worship or insulting a religion in a place of worship and even causing a disturbance to a religious assembly.
Other provisions in the Penal Code under Chapter XV tend to address the offences relating to religion. They prohibit the acts of defiling a place of worship or insulting a religion in a place of worship and even causing a disturbance to a religious assembly.
