In June 2014, an altercation between a Buddhist monk and two Muslims resulted in a public rally in Aluthgama—a small town on the Southern coast of Sri Lanka known for its ethnic and religious diversity. Galagoda Aththe Gnanasara Thero, the Secretary General of Bodu Bala Sena, a radical Sinhala-Buddhist movement responsible for numerous hate campaigns against Muslims, told an angry mob at the rally that ‘if a single Sinhalese is touched, it would be the end of all Muslims’. Moments after these inflammatory remarks, riots broke out in Aluthgama and neighbouring areas. Four people were killed and over a hundred Muslim-owned businesses destroyed. The UN High Commissioner for Human Rights described the incident as ‘one of the worst incidents of sectarian violence in Sri Lanka’s recent history’.

More than a year later, the new Sri Lankan government has responded to the problem of religious violence by attempting to introduce new laws on hate speech. This article explores some of the complexities that underlie the government’s response. It argues that an attempt to introduce new laws serves to perpetuate—rather than combat—impunity.

In September 2015, the new government announced that it would introduce new laws banning hate speech. The announcement was welcomed, as it responded to a call by the UN High Commissioner for Human Rights to criminalise hate speech. Yet both the government and High Commissioner neglected to consider section 3 of the International Covenant on Civil and Political Rights (ICCPR) Act of 2007. This (Sri Lankan) law reproduces Article 20 of the ICCPR, and prohibits the advocacy of ‘religious hatred that constitutes incitement to discrimination, hostility or violence’. It also gives the High Court jurisdiction to try and punish offenders.

Sri Lanka does not face a gap in the law as far as hate speech is concerned. In fact, the current law is fully compliant with international standards. The problem is one of enforcement. To date, Gnanasara Thero has not been investigated for the role he played in inciting violence against the Muslim community on 15 June 2014. Despite the status of existing law, the Minister of Justice tabled two new Bills in Parliament on 11 December 2015. The two Bills sought to insert a new offence on hate speech into the Sri Lankan Penal Code and Criminal Procedure Code.

The proposed laws on hate speech are deeply problematic for two reasons. First, new laws banning hate speech create the impression that hate speech is not already prohibited under Sri Lankan law. Article 13(6) of the Sri Lankan Constitution prohibits the retroactive application of criminal laws. Thus the very notion of a ‘new law’ criminalising hate speech could impede prosecution of past offenders.

Second, the new offence contained in the proposed Bills is virtually identical to section 2(1)(h) of the Prevention of Terrorism Act (PTA) of 1979. The previous government used this section to target its critics, such as Tamil journalist J.S. Tissainayagam, who was sentenced to 20 years of rigorous imprisonment for accusing the government of committing war crimes. Yet, the present government has committed itself to repealing the PTA in its co-sponsored resolution adopted at the 30th Session of the UN Human Rights Council contains this commitment. This attempt to reproduce a provision of an anti-terror law (destined for repeal) in ordinary criminal law is at best incongruous, and at worst insidious.

Sections of Sri Lanka’s civil society, the Human Rights Commission of Sri Lanka and the main opposition party in Parliament immediately opposed the two new Bills. The campaigners argued that, like the PTA, the new laws would be used to target critics of government rather than hate speech offenders. Petitions challenging the constitutionality of the Bills were then filed in the Sri Lankan Supreme Court.

The government succumbed to the pressure generated through the campaign and abandoned the Bills. The campaign had succeeded in at least maintaining the space to bring past perpetrators of hate speech to justice. Yet this is only a minor victory, as those very perpetrators continue to enjoy impunity even today. Civil society in Sri Lanka must now turn its attention to the more important question of enforcing the ICCPR Act. Such enforcement is vital to advancing justice and preventing future religious violence.

By: Gehan Gunatilleke | Courtesy: Oxford Human Rights Hub