By Mohamed Harees –

Lukman Harees

Sepal Amarasinghe, a popular YouTuber known for being a freethinker and non-believer instantly recognisable from his voluminous long white beard was in hot waters recently. He was arrested by the CID over alleged slanderous statements made regarding the Temple of the Tooth Relic (Sri Dalada Maligawa), which insulted the belief of millions of Buddhists particularly in Sri Lanka. Even the Malwatta and Asgiriya Mahanayakes wrote to the President Ranil Wickremesinghe, raising concerns about these offensive statements, and urged the government to take necessary measures to nip the matter in the bud. In a rare display of unity, parliamentarians across the aisle spoke as one demanding legal action.

Justice Minister Wijeyadasa Rajapakshe, vowed legal action against Sepal, stressing that the religious harmony in the country cannot be allowed to be disrupted. The minister said legal action must be initiated in terms of Section 290 of the Penal Code and in terms of the International Convention on Civil and Political Rights (ICCPR) Act. Section 290 of the Penal Code reads: “Whoever destroys, damages, or defiles any place of worship, or any object held sacred by any class persons, with the intention of thereby insulting the religion of insult the any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage, or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”. Section 3(1) of the ICCPR Act provides:“No person shall…advocate national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.” 

True, Sepal should be dealt with according to the law, as religious harmony is the foundation for economic progress. But, how honest are the governments in implementing anti-hate laws such as ICCPR? Unfortunately, there is selective law implementation and a serious impunity crisis in Sri Lanka depending on the context and personalities involved! The use of the ICCPR in Sri Lanka on matters of faith too has been controversial. Democracies face the perennial challenge of combating harmful speech. In Sri Lanka, the International Covenant on Civil and Political Rights (ICCPR) Act of 2007 remains at the centre of this challenge.

It is reasonable that there was fury among the Buddhists when one of their most venerated objects and symbols was insulted by Sepal, using derogatory and inflammatory terms such as “Labba” which in colloquial Sinhalese means male genitalia. It should be condemned and cannot be condoned in any context. In the words of MP Wimal Weerawansa, a staunch nationalist, who shared the public sentiments thus, “.. They’re now insulting the sacred tooth relic, in offensive language. If anybody chooses not to believe in the sacred tooth relic, they’re free to do so, but they have no right to hurt the sentiments of those who do believe. This descent to savagery must not be allowed. Action must be taken against it immediately. “Protecting the sacred tooth is the foremost duty of the state. Can these ‘thuppahi hipaatuwan’ be allowed to insult it with offensive language?”. Justice Minister Wijeyadasa Rajapakshe said nobody in the world has the right to insult the tooth relic, which is an object venerated not just in Sri Lanka but by Buddhists across the world. “Our feelings as Buddhists and those of our venerable monks have been hurt by this insult.” It should however be stated even Pitiduwe Siridhamma Thero a.k. a. Samanthabadra Thero also likened Tooth relic to a pig’s tooth. No law enforcement was seen being used against him in this regard, although he was let off with a pardon from the Mahanayakes.  

It was JVP led NPP leader Anura Kumara Dissanayake who identified the real issue behind such unwanted provocations. “We know that our country was once embroiled in a war. There was much bloodshed. There were then religious conflicts. There was bloodshed there too. The way this country can move forward is not through conflict on ethnic or religious lines. From time to time, situations like this emerge. Various groups want to create different forms of fundamentalist conflicts. As a government and as a society we must be mindful that such things can give rise to major conflicts. I think everyone has a responsibility to not allow such a situation.”

No dispute arises regarding the application of anti-hate laws like ICCPR to cases where religious harmony and sensitivities are targeted and also in the context of a period of time such as the postwar period where religious animosities and inter communal mistrust were at its peak. A country already wounded by war and religious violence cannot afford any repetitions of such nature. However, problem arises when there is selective application and abuses of such laws to gain political advantage and a worsening impunity crisis blowing across the nation specially in postwar period in Sri Lanka. 

In Sri Lanka, the International Covenant on Civil and Political Rights (ICCPR) Act of 2007 remains at the centre of this challenge. One of the principal aims of the Act is to protect persons from speech that incites violence and discrimination. The ICCPR Act is meant to incorporate certain provisions of the UN’s ICCPR into Sri Lanka’s domestic law. Section 3(1) of the ICCPR Act, therefore, ought to serve the same purpose as Article 20(2) of the ICCPR. The Covenant was drafted and negotiated during the immediate aftermath of the Second World War. This historical context forms the backdrop to the specific prohibition on incitement to violence and discrimination – a context in which violence and discrimination against the Jewish community was routinely advocated in Europe. Article 20(2) was meant to be a shield against future occurrence of such incitement. It was specifically designed to protect vulnerable minority groups. 

However, as writer Gehan Gunatilleke says in an article in 2019 in www.veriteresearch.org website, “in the 12 years since its enactment, not a single person who has incited violence against a minority group in Sri Lanka has been convicted under the Act; this is despite four major incidents of mob violence against the Muslim community in the past five years: Aluthgama in 2014, Gintota in 2017, Digana and Teldeniya in 2018, and Kurunegala and Gampaha in 2019. Section 3(1) of the Act, which is meant to be a shield against such incitement, has failed to achieve its principal purpose”. 

“Yet, the crisis concerning the ICCPR Act does not end there. It is not just a broken shield. The leftover shards are now being used to attack the very citizens that the law is meant to protect. It would seem that Sri Lanka’s ICCPR Act has been transformed into a weapon. It is now a weapon wielded by majoritarian power to suppress those who offend majoritarian sensibilities. There was once a time when Sri Lankans lamented the State’s failure to enforce the ICCPR Act and bring perpetrators of ‘incitement’ to justice. That outrage now seems a distant indulgence. The crisis has become much greater today. For what was once merely a broken shield is now a weapon of choice”.

In June 2014, an altercation between a Buddhist monk and two Muslims resulted in a public rally in Aluthgama, known for its ethnic and religious diversity. Renown hate monk Galagoda Athte Gnanasara Thero of BBS 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. Sections of Sri Lanka’s civil society, the Human Rights Commission of Sri Lanka and the main opposition party in Parliament immediately opposed the new Bills, which 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. It was thought that the campaign had succeeded in at least maintaining the space to bring past perpetrators of hate speech to justice. It was anticipated at that time that enforcing the ICCPR Act was vital to advancing justice and preventing future religious violence. However, not only those very perpetrators continue to enjoy impunity even today, but also it is tragic ICCPR law is being selectively applied, misused and not serving the very purpose of bringing it into the law books – is to protect persons from speech that incites violence and discrimination. 

Gnanasara Thero has been involved in a series of hate speeches regarding Islam and the Muslims. He, in a later press interview insulted Allah in reference to a Muslim place of worship by using the same derogatory word Sepal used in reference to the Dalada Maligawa. Then, in the post Easter attack period, he stated that the mastermind of the Easter attack is Allah and that a similar attack will take place in the future. However, in spite of his terrible anti-Muslim track records, impunity reigned high and no action was taken against him. Just consider what happened to him on the contrary! It was humorous that this hardliner monk who was sentenced by a court in Sri Lanka to six months in prison for criminally intimidating a person inside a court in 2016 was later pardoned by the then President Sirisena by using his presidential powers. Adding insult to injury, he was also rewarded by making him the Chair of the ‘One Country- One Law’ Commission, by President Gotabaya Rajapaksa, and his avowed aim was to abolish the personal laws applicable to the Muslims. 

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. Many instances of abuse of ICCPR Act have had a ‘chilling effect’ on fundamental freedoms. The award-winning author and poet Shakthika Sathkumara, was arrested in early April ‘19 after he wrote about sexual abuse and pedophilia involving a member of the Buddhist clergy which was claimed to have insulted Buddhism. After the Easter Sunday tragedy, Fathima Nushra Zarook was arrested for wearing a kaftan depicting a ship’s helm, mistaken by vigilantes and police in Hasalaka as a Dharmachakraya (a Buddhist symbol used to depict the Dhamma and the walk to enlightenment). Both arrests were made under the ICCPR Act, and concerned parties claimed these were gross abuse of an act introduced to promote and protect human rights. As Gehan Gunatilleke says, “not one person involved in incitement to violence in Aluthgama, Digana or Kurunegala has been convicted under the law. So, the main purpose behind this section of the Act has not been achieved to date. However, this section has been enforced to arrest and incarcerate a writer such as Sathkumara for writing a piece of fiction that allegedly insults the Buddhist clergy. The ICCPR Act does not deal with mere offence or insults. This is a tragic case of abusing a scarcely used provision of law for a purpose not even covered by that law”. So, ICCPR Act introduced to promote individual rights is now used either to abuse civil liberties or not used to prosecute actual culprits like Gnanasaras who advocated violence against minorities or Ratanes who called for boycott of Muslim businesses or invented the whole Dr. Shafi fiasco to create enmity against the Muslims in the eyes of the majority community. 

Hate speech laws, as with blasphemy laws, are often used by states against the very minorities they are designed to protect. In some cases, they are even used to restrict minorities from promoting their culture and identity, or from expressing concern about discrimination against them by the majority. However, as UN Secretary General said, “addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law. We need to treat hate speech as we treat every malicious act: by condemning it, refusing to amplify it, countering it with the truth, and encouraging the perpetrators to change their behaviour”. 

Society has an important and legitimate role to play in responding to harmful speech. By extension, the state too has a crucial role to play in this domain. However, there are serious risks of abuse that need to be confronted when defining the state’s role. At least in contexts such as in Sri Lanka, there is a compelling case for a minimalist approach – an approach that simply does not entrust the state with extensive criminal jurisdiction over speech. Political and religious leaders and also Media have a special responsibility to promote peaceful coexistence without resorting to inflammatory statements that amounts to hate speech and spreading of fake news. Multi-pronged Approach is essential to create awareness, empathy, and protection of all people in Sri Lanka and to strike a balance between freedom of speech and expression, right to information with protection from hate speech and fake news. Judiciary and law enforcement should ensure that anti hate laws are applied fairly & equally, to suit the purpose.