By R.M.B Senanayake –
The problem of devolution of power and the resolution of the grievances of the Tamil people have run into opposition from 1956 onwards Firstly it was the Buddhist monks who opposed the B.C Pact and the Dudley Senanayake -Chelveynayagam Agreement of 1965. There were also K.M.P Rajaratne and a motly crowd of oliticians and civil society activits who opposed rectifying any grievances of the Tamil people. They stirred up communal and religious hatred against the Tamil and Christian minorities. Recently the previous regime allowed organized groups to stir up hatred against the Muslims. All these campaigns stirring up hatred against minorities is due to the lack of a law in our criminal law which curbs hate speech although ther is a provision in our Penal Code. Articles 18 and 19 guarantee the rights to freedom of religion and expression.
True that there should be freedom of expression which is recognized by the UN Declaration of Human Rights. But even the UN Declaration of Human Rights recognizes the need to impose restrictions on free speech in the interests of others. “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”.
However, it is the International Covenant on Civil and Political Rights (ICCPR) which gives guidance on the relationship between freedom of expression and the prohibition against incitement to hatred or “hate speech”. Article 19 provides that:
“ 1. Everyone shall have the right to hold opinions without interference.
2. Everyone should have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
a. For the respect of the rights and reputations of others;
b. For the protection of national security or of public order (ordre public), or of public health or morals.”
This is qualified by Article 20 as follows:
“1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The wording of Article 20 also implies a not simply advocacy but advocacy of national, racial or religious hatred; not simply such advocacy, but one that constitutes incitement; not simply such incitement, but one that is related to discrimination, hostility or violence”. The injunction inherent in Article 20 is further advanced by the International Convention on the Elimination of All Forms of Racial 5 Discrimination (CERD) which adds (in regard to racial discrimination only) another Article pertinent to the discussion: Article 4, as follows:
“States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one color or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention, inter alia:
a) Shall declare an offence punishable by all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;
c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”
A perusal of the laws from the region reveals that a large number of countries and territories covered by this study have laws which can be used, directly or indirectly, to prohibit hate speech in its various manifestations, although the terminology on the issue may vary. They include: Afghanistan, Armenia, Australia, Azerbaijan, Bahrain, Bangladesh, Bhutan, Brunei, Cambodia, Fiji, India, Indonesia, Iraq, Iran, Israel, Japan, Kazakhstan, Kiribati, Kyrgyzstan, Lao People‟s Democratic Republic (PDR), Malaysia, Maldives, Mongolia, Myanmar, New Zealand, Pakistan, People‟s Republic of China, Philippines, Qatar, Republic of Korea, Saudi Arabia, Singapore, Sri Lanka, Syria, Tajikistan, Thailand, Timor Leste, Tonga, Turkmenistan, Tuvalu, United Arab Emirates (UAE), Uzbekistan, Vanuatu, Vietnam and Yemen.
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