By Faizer Shaheid –
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.
Conclusion
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.
BBS Rep / December 12, 2016
“Are Hate Speech Laws In Lanka Adequate To Make Arrests”. The answer though simple is not simple. The laws are adequate in principle if there is political will and there is an independent police and judiciary. Alas Sri Lanka has neither. Laws are only good if they are administered without bias. So in Sri Lanka no law nor police or judiciary adequate to handle racial hatred, especially as the prime mover of the racial divide are Buddhist monks. The saffron robed monks are far too sacrosanct to be arrested by mere lay mortals.
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Ceylonese / December 12, 2016
Let’s face it, the government does not have the will not desire to protect Buddhism. Perhaps they like to see it perish.
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Sam Fernando / December 12, 2016
Prove it please just not supporting FURTHER to extremist groups such as unedcuated folks rallying round to support socially cornered mad monks such as Managalarama mad monk and his counterpart from colombo Ghanasara:
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Muhandiram / December 12, 2016
Ceylonese
What makes you say that?
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Ceylonese / December 12, 2016
Giving prominence to the Hate Speech Monks by inviting them as religious leaders
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Bunjappu / December 13, 2016
rather asking them to derobe and enter jail sessions with rehab programmes will definitley be the best solution leaving us all the srilankens in peace.
BBS barbaric monk proved to be a man not respecting anyone – nor law and order. So is Mangalaramaya Eunach – who even once physically attacked a visiting female police constable with her fellow men stand still next to her.
So this has reached to all high appalling levels.
These men should be forced to derobe.
Our Danyaa and prayers cant continue the same manner so long these idiots destroy the image of lanken buddhism this way.
Whatever is being read in Mahawansa script, we have to protect our people not allow them creating new kind of seeds for an another war.
There are extremists in every community.
But those who abuse them for their political gains should be cornered, if not today when?
Rajaapskshe talks about his heilige skript- sacred plans -but he is the main person to back these extremists.
We opoosed prabkaran.
We also stand against Rajaakshe or the like anyone with extremists thoughts.
There will be no future for us srilankens in this country so long the kind of both and new emerging SLTJ elements, that constanntly add their post to attack buddhists. Anyways,
the masses will react like one unit than have been sofar, is my belief We will succeed it.
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Sylvia Haik / December 12, 2016
It is exactly these people who wish to destroy the good teachings of Buddhism. Buddhism as a religion has faced no threats from anybody since inception, yet some of these Johnny come lately mad monks and hate instigators, wish to depict the fashionable “Me too” syndrome and pretend they are under attack. Contrary to public perception it is actually Islam that is under attack – from the different sects in Islam, from Islamaphobia, from idiot Buddhist Clergy in Myanmar, Sri Lanka and China. In Sri Lanka there is a plethora of laws against hate speeches, yet they are not enforced because the perpetrators are monks.
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MsThalanbatu / December 12, 2016
Having closely studied all the recent issues and not seeing the due actions being taken promtly
1) whoever came to power, there exist a system in this country which blocks proper systems being introduced.
That is media mafia, thuggery within the authorities, the perceptions in their blood in terms of standing against Sangas but promoting crimes loudly as the can,and the place given to the buddhism by Mahawansa draft written by Mahanama with limited capacity and several other factors.
2)With the appointement of NEW IGP and his very first speech held, we thought my gosh, things will surely turn out to be REAL, but nothing tangible has been the case, even a year is gone since him being in the place
3) Extreme elements rising against any tiny move regardless of the impact of it for the masses (towards betterment) are one of the very strong force in this society. Provable facts are avaialbe the backing of former state men behind this. Intelligence is clever in getting them all but react softly as they can – best example is smoothly avoid the new blood bath thought to occur in Batticalo few days ago. They blocked it by all means – that was a talent of the current regime, but among the few achievements of it sofar.
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Leelawathie / December 12, 2016
Not only against hate speech but for anything and everything there are laws prevailing in this country, but the systems that have infiltrated in the society/nation are more to impunity.
TWO MOST KNOWN EXAMPLES:
1) Managalaramaya – Mad Monk publicly provoked that Tamil GS with police stood next to him – but nothign like the law and order functioned. In normal case, the monk should ON the spot be ARRESTed.
Here, the place given to SIVURA stood out burrying the law and order of the day immediately.
2) An another young boy- 24 years found dead in Wimal Weerawanse house. The boy is said to have no health problems according to his health history, but to cause such sudden death is not yet investigated. No parties are interviewed by Authortiies yet why ?
is that because POLITICIANS re the number 1 group to enjoy IMPUNITY in this country ?
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Ajith / December 12, 2016
Yes,It is not about law, it is about will. The problem is with law makers. They misuse the same law they make. So we need laws to punish those law makers who misuse the power. In otherwords we need laws to reduce the power of the law makers.
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Mohamed Marzook-UK / December 13, 2016
Exactly, there is no purpose in having laws or introducing new laws. It is the will to implement the laws without fear or favour that matters.
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Thiru / December 12, 2016
No point in writing any number of articles on “Hate Speech Laws In Lanka Adequate To Make Arrests”.
Politicians from SWRD onward used racism to come to power. Doesn’t the author know that?
It is a periniel epidemic not only in Sri Lanka but in another Buddhist neighbor Myanmar for decades.
If you want the Sinhalese politicians to cut their lifeline to power, will they do it? Never! The so-called democrat and Nobel Laureate Aung San Suu Kyi simply denies that genocide of Rohingyas is ongoing.
Forget it and pray Allah and hope for the best.
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jim softy / December 12, 2016
[Edited out]
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jehan / December 12, 2016
Gnansaraya should be arrested for aluthgama.justice delayed justice denied.
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Ceylonese / December 12, 2016
Are the practicing Buddhists spectators of their philosophy being destroyed by their very own Bhikkus. (Monks) If so, lets us all be the witness.
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niyaz / December 12, 2016
you are comparing razik with don prasad did you go through both of them video speeches if you analyze both you will understand so be realistic true writer
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ekelbroom / December 12, 2016
The proposal to promulgate and implement hate speech laws is only a short-term palliative to the problem of verbal abuse of religious groups. It may have the desired effect of silencing the more virulent voices on both sides of the religious divide, but the ensuing peace will be as deceptive as a mirage. More importantly, the suppression of free expression could result in the affected individuals becoming more bigoted, prejudiced and paranoid in their thoughts and deeds. There is also the possible danger that the imposition of such laws could be interpreted and implemented selectively to suit various political agendas.
It is important to understand that hate speech does not occur spontaneously in a vacuum. It is created and fueled by hate thoughts. As difficult as it seems, the only way to resolve this issue permanently is to identify and neutralize the factors that create hate thoughts in individuals regarding other religious groups. The racist gene is present in the DNA of all individuals, which explains as to why hate speech resonates with many members of a specific religious group, who may condemn the method of delivery of the speech but will admit that there is an element of truth in what is being said.
What is required is not a short-term palliative, but a long-term solution to the problem.
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Game / December 12, 2016
[Edited out]
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Spring Koha / December 12, 2016
Mr Shaheid
The answer to your question is YES. The laws lie ready to use but those who keep and prosecute the law will not act.
The Sangha and the government are inextricably linked. There is simply NO way that a man-in-saffron-robes will be prosecuted for ‘defending the country and language’.
We are seeing the auto-sodomisation of the Sangha by its most egregious members.
We should all lie back and watch our SRI LANKA being slowly shafted.
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ranjith(sprrw) / December 12, 2016
[Edited out]
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Paul / December 13, 2016
“Are Hate Speech Laws In Lanka Adequate To Make Arrests”.
Adequate or not, they will never be implemented so what does it matter?
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whywhy / December 13, 2016
Paul ,
It does matter to the victims who are less in numbers
than the race which has been hijacked by the culprits
to commit the crime ! It does matter to the majority
SRILANKANS longing to live in peace . It does matter
to the victim community who largely and mainly
contributed to bring about the change from corruption
to good governance . We know the law will never be
implemented and equally the demand for action will
not cease either ! victims know more politics than
the culprits and empowering criminal behaviour has
already witnessed the consequence .
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Sam Fernando / December 21, 2016
This is common to other laws already prevailing.
Why dont they the authorities of FCID, CID or the like bodies not yet INTERVIEW Rajapakshe family in order to collect all the puzzling bits of Thadjudeen murder case ?
Is that because the prevalent laws serves VVIP families different than the average folks ?
Why that former dpty IGP Anura Senanayake stay that long in Remand -not being questioned properly in terms of Thadjudeen murder (now I guess over 8 months in Remand) why why why ?
And former JMO that let body parts of Thadjudeen disspaeared and later found in SAITEM labs whose incharge was Dr. Ananda sekara JMO himself, but the guy remains without being questioning ? why ? what is fate being faced by Thadju or the like victimized families in such cases ? Dont we have laws to go rigorously against if first hand evidence are on the table ? and why Rajaakshe obsviously be treated with impunity yet ?
Why why why.
My 10 year old nephew questions me..
I pass the question to you the readers. Please help.
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Rajash / December 13, 2016
“Are Hate Speech Laws In Lanka Adequate To Make Arrests”.
can you imagine the police handcuffing “thugs masquerading in yellow robes” and pushing them in to a police van in day light in front of the public?
“the Yellow robe” is being exploited. The curse of the country.
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Aristotle / December 13, 2016
I think the law in Sri Lanka is adequate enough to address any issue in relation to religion and race. Religion of race should not influence the rule of law.
But if the law is implemented how could Ranil, Sirisens or Rajaakse family win the mind
and hearts of Sinhala Budhists and survive in power politics.
It is impossible to eradicate Budhist monks’ s hatred of non Budhist’s people with different race, different culture or
religion.
Unless the govt. is not depending on Sinhala Budhist majority it will never implement the
Law against these barbaric monks. This is the reality in this lawless nation.
See how many murderers and fraudsters go Scot free and enjoy impunity from justice.
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Fathima / December 13, 2016
The government is weak now, with mixed up priorities and MY3’s popularity is fading day after day, let alone RW, the bond guy. Govt is facing issues and attacks from every angle possible – But what they don’t try to understand is who or what is the grass root of 90% of the problems, and what needs to be done to it.
Or they do know and understand who or what the grass root is, but simply hesitating or not having the guts to do the right thing against that. After all, 100% Y’palanaya is not suitable for SL’s nature, it has to start somewhere 70% and to grow gradually.
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whywhy / December 13, 2016
May be the My3 Ranil want to let BBS circus company
continue functioning with the tone diluted and
still showing off their existence as if all is not
lost . It will help My3 Ranil duo to remind Muslim
voters of pending dangers if the losers are allowed
in any future elections ! Slow death rather than
execution ? President and the PM both are promising
to protect all people from human right violations
and to respect religious freedom . Let us give them
time and see how far they are determined to go on
their promise .
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GrandMuftiOfRationalism / December 18, 2016
No religion is above criticism. Everyone has the right to debate on the relevance of each religion, in the face of the violence, that each known religion propagates.
All known religions have some element of violence either in its doctrine or its cultural practices, with aim of safeguarding the so called god’s chosen people. The concept of ‘Thou shalt not kill’ is irrelevant when one have god’s support.
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Pradeep / December 21, 2016
after all buddhism is a dying sect as many intelligent people of the majority race are secretly converting to other major faiths in secret. even many yellow robes are disrobing at a rate of 9 per month. Others are disrobing after gaining the graduation from the high learning institutes. When knowledge gains, intellectuals bred, and thus foolish ideologies and myths will not prosper. I hope Sri Lankan intellectuals will reflect on their faith and make suitable decision. Thus a bright future will prevail in Sri Lanka God Willing.
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Sama / December 21, 2016
If what you insist here are facts, please add us the links
These are no good news for buddhists in general.
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