By Lakmal Harischandra –

Lakmal Harischandra

People of Sri Lanka in general and Sinhalese in particular are known to be tolerant and understanding. People attempt to live amicably at the grassroot levels. It is to be however lamented that Sri Lankan politicians appear to be grossly deficient in promoting intercultural understanding, tolerance and mutual respect and adopt divisive political policies for their ulterior motives and survival. Racism has been a political weapon in the armoury of most politicians whether Green or Blue, Sinhala, Tamil or Muslim. The communal parties are liabilities to those communities. The disgruntled Sinhala politicians in the same light use racist media like Hiru, Derana and Divaina to ensure that racism, racial discrimination, intolerance and Islamophobia become the new normal, especially in the Post-war period. This worrying level of hate require immediate action.

It is a shame that the government and the law enforcement authorities are turning a blind eye to the well- orchestrated anti-Muslim hate campaign and vilification waged by  Hiru/ Derana and Divaina. TV Anchor Chatura Alwis, during the recent episode of ‘Wadapitiya’ intermission, is playing a special role in this regard and even boasts that he should be paid for allowing open hate to be advocated by a corrupt cum cheap politico Aluthgamage; along the same lines as his political colleagues such Wimal and Gammampila duo as well as other die hard hate peddlers of the likes of Ven Ratana and Gnanassara, who have been strangely silent now, were doing before. 

The latest ruse was the involvement of a PHI in a Derana TVY program once again moderated by Chatura, who stated that the Sinhalese community are being denied the enjoyment of the Sinhala New Year this year due to the carelessness of people in areas like Nattandiya, Akurana and Beruwela (implying the Muslim community). Chatura’s final remarks surely would have left the TV viewers with an impression that ‘Muslims’ were the ultimate spoil sports. This game of referring to the transgressors of the curfew, Quarantine and lockdown guidelines or areas by the ethnicity only if they were Muslims or Muslim areas, continued unabated. Ethnicity was conveniently forgotten when similar incidents involving other communities occur. But, the likes of Chatura and Shudevas still enjoy popularity and acceptance, judging by the favourable comments seen in the social media. This shows the level of mainstreaming of anti-Muslim hate in the social media. There were two  incidents of posting fake news and messages in the social media, which are under investigation and the culprits were reportedly arrested or to be arrested( as the Police say)- one was a person posing as an intelligence officer sharing an audio clip referring to a planned act by the Muslims to spread the virus among the Sinhalese and the second was the malicious posting of a religious ceremony in Beruwela despite the ban on social and religious  gatherings. (Muslim religious body ACJU was the first religious leadership to ban such gatherings (Friday and daily prayers in the mosques. Most followed but there were still stupid few who flouted the guidance)   

It is in this context, that the failure of the application of the ICCPR comes into focus. It is a mystery that the Senior DIG  Ajith Rohana who is doing a great service in the fight against Corona, is not even in the news stating that those culprits including the racist TV Anchors like Chathura and the PHI officer will be tried under the ICCPR Act. Sri Lanka doesn’t need more laws. It needs to use the laws currently on its books responsibly.

Section 3(1) of the ICCPR Act is mainly designed to hold persons who incite violence against national, racial or religious groups accountable. Under ICCPR Article 3.(1), ‘No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’. “A person found guilty of committing an offence under subsection (1) or subsection (2) of this section shall on conviction by the High Court, be punished with rigorous imprisonment for a term not exceeding ten years,” and “An offence under this section shall be cognisable and non-bailable, and no person suspected or accused of such an offence shall be enlarged on bail, except by the High Court in exceptional circumstances.” 

However, although that this Act should have been used as expected to convict perpetrators of incitement, it was not so; so, the main purpose behind this section of the Act has thus not been achieved to date. Instead, the ICCPR Act became an instrument for abuse when it is supposed to serve as a safeguard to protect and promote human rights. It was a shame that this section was enforced in the past to arrest and incarcerate a Sinhala fiction writer and a Muslim woman wearing a kaftan featuring the helm of a ship, and also has never been used to prosecute those who have incited hatred and communal tensions, not even after riots in Aluthgama, Digana and after Easter Sunday tragedy in Minuwangoda. Strikingly, the ICCPR Act has not been invoked against members of the Buddhist clergy, even after inciting violence against Muslims.

Under Article, 3.6.1, ‘The State has an obligation to protect individuals from incitements to discrimination, hostility or violence by third parties as well as to refrain from engaging in such acts in order to protect rights and ensure equal protection of the law for all. Further, under Article 3.6.2 ‘Where there is reasonable suspicion that a person is committing a Section 3 offence, and public officers with the power to set the procedure under the ICCPR Act in motion fail or omit to enforce the law, such omission shall amount to state inaction which gives rise to a fundamental rights violation (Article 12 (7) of the Constitution of Sri Lanka) as a tacit state approval of hate speech’.

The imperative need to apply the said provisions of the Act in the wake of the Corona crisis, has emerged as never before, especially when the racist anti-Muslim lobby which has been active since the end of the end of the ethnic war in 2009. They are re-emerging using the same demonization and marginalization tactics against the community under threat, they used when some fringe elements within the community were accused of carrying out a terrorist attack on the Christian community last Easter. Coming just weeks or months ahead of the next parliamentary election, these provisions like ICCPR therefore beg the question whether they could be used to target the political opposition as were done before like the PTA either now, or in the future. Sri Lanka need to make a careful distinction between those that put the lives of others in peril through incitement to violence or discrimination and those legitimate forms of expression. 

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. 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  problem with Sri Lanka thus is not that of  adequacy of laws to tackle hate speech and hate attacks; but that of will of the government and law enforcement authorities to enforce such laws.

Apart from ICCPR, the Penal Code also 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 too, not only prohibits the act of insulting other religions, but also makes them all convictable.

Recently, Sri Lanka, is also in the news about the non-allowance of the burial option to those preferring that option over cremation when there are COVID-19 deaths, despite there being clear guidelines on this subject by the WHO. As many as 182 countries are following those WHO Guidelines. WHO tweeted recently ‘ it is a common myth that persons who have died of a communicable disease should be cremated, but this is not true. Cremation is a matter of cultural choice and available resources’. Muslim leaders have clearly indicated that the community is prepared to accept the outcome of a panel of scientific experts as suggested by GMOA, if the panel thinks cremation is the only option. Sadly  no such scientific outcome based on WHO guidelines has come and therefore the decision seems to be one taken on political racist grounds. It is the duty of the government to clear this confusion. Arguments like burials adversely affecting the water table in Sri Lanka hold no water scientifically.  

Racism was a common enemy of mankind. Universal Declaration of Human Rights also assures the dignity of all human beings. Nevertheless, many societies suffered from racial discrimination, xenophobia and intolerance, particularly when it came to minorities, leading to ethnic conflicts. In many places those practices were institutionalized as in Sri Lanka.  They should be criminalized by punishing perpetrators. It was the responsibility of the UN Human Rights Council and of the international community too to eliminate racism across the world and have better monitoring mechanisms and hold those governments failing to adhere to UDHR standards, to account. Sri Lanka too has had a long history of de facto and de jure racism. The war was over a decade ago, however the root cause of the problem had not been addressed and no solution had been found for the Tamils. Countless refugees (both Tamils and Muslims) had wasted their lives in refugee camps and in transit countries with no alternatives. The self-centred Tamil and Muslim politicians advocating communal politics have been a liability to those communities. 

The way forward would be for those affected to have recourse to all forms of justice and to put an end to impunity. As a ICJ Report said, there is an impunity crisis in Sri Lanka. However, as the Annual report of the United Nations High Commissioner for Human Rights (2013) stated, ‘There is often very low recourse to judicial and quasi-judicial mechanisms in alleged cases of incitement to hatred. In many instances, victims are from disadvantaged or vulnerable groups and case law on the prohibition of incitement to hatred is not readily available. This is due to the absence or inadequacy of legislation or lack of judicial assistance for minorities and other vulnerable groups who constitute the majority of victims of incitement to hatred. The weak jurisprudence can also be explained by the absence of accessible archives, but also lack of recourse to courts owing to limited awareness among the general public as well as lack of trust in the judiciary’.

Be it as it may, legislation alone is not adequate, as the above report says, ‘While a legal response is important, legislation is only part of a larger toolbox to respond to the challenges of hate speech. Any related legislation should be complemented by initiatives from various sectors of society geared towards a plurality of policies, practices and measures nurturing social consciousness, tolerance and understanding change and public discussion. This is with a view to creating and strengthening a culture of peace, tolerance and mutual respect among individuals, public officials and members of the judiciary, as well as rendering media organizations and religious/community leaders more ethically aware and socially responsible. States, media and society have a collective responsibility to ensure that acts of incitement to hatred are spoken out against and acted upon with the appropriate measures, in accordance with international human rights law. Political and religious leaders should refrain from using messages of intolerance or expressions which may incite violence, hostility or discrimination; but they also have a crucial role to play in speaking out firmly and promptly against intolerance, discriminatory stereotyping and instances of hate speech. It should be made clear that violence can never be tolerated as a response to incitement to hatred. To tackle the root causes of intolerance, a much broader set of policy measures is necessary, for example in the areas of intercultural dialogue – reciprocal knowledge and interaction – education on pluralism and diversity, and policies empowering minorities and indigenous people to exercise their right to freedom of expression.