By 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.
Section 291B of the Penal Code also prohibits deliberate and malicious attempts to outrage the religious feelings of any class of persons with intention to do so. Such insults can be in the form of words, writing or even mere visible representations.
It is therefore very clear that the Penal Code, not only prohibits the act of insulting other religions, but also makes them all convictable.
The power of arrest of the Police
It has already been proven that hate speech and hate crimes constitute an offence indictable and convictable under the law of the country. However, arresting on such grounds requires a warrant from a court of law, and the process of adducing evidence of intention and of the offence can be a time consuming task.
It is worthier if the Police could be directly involved, whereby an arrest could be made much easily. The Aluthgama incident is indeed deplorable and any future incident of similar nature can be thwarted if the Police act accordingly with the law. This is stated in Section 79 (2) of the Police Ordinance, which reads:
“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.”
Therefore, the Police is permitted to intervene in a situation where insulting words are used in a public meeting or place.
Sri Lanka has adequate laws to protect its citizens from hate speech and hate crimes, but the issue stems from enforcement of the law. The general impunity that prevails seek to protect these extremists from any type of harm. On most occasions, hate crimes is perpetrated by some of those in power, and their henchmen seek to follow their political gains by committing hate crime. This can be prevented if the Authorities take legitimate action to arrest and produce the perpetrators of hate crimes in courts.