19 September, 2020

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The Challenge Of Balancing; Hate Speech Laws With The Freedom Of Expression

By Lukman Harees

Lukman Harees

Lukman Harees

“Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the European Convention on Human Rights], it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition ’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.” (Handyside v. the United Kingdom judgment of 7 December 1976, § 49).

“… [T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.” (Erbakan v. Turkeyjudgment of 6 July 2006, § 56)

President Ford conceived a country for the American people as a place where they can disagree without being disagreeable or distasteful. This sums up the essence of balancing the freedom of expression with the need to prevent all forms of expression which spread ,incite ,promote or justify hatred based on intolerance. Hate speech is speech that offends, threatens, or insults groups, based on race, colour, religion, national origin, sexual orientation, disability, or other traits. Should hate speech be discouraged? The answer is easy—of course! However, developing such policies runs the risk of limiting an individual’s ability to exercise free speech. When a conflict arises about which is more important—protecting community interests or safeguarding the rights of the individual—a balance must be found that protects the civil rights of all without limiting the civil liberties of the speaker.

We all saw the ill-consequences of hate speech in Sri Lanka during the post-War MR Regime when some extremist hate groups posing off as champions of Sinhala Buddhist people, raising majoritarian cries, initiated and launched a highly destructive well-orchestrated hate campaign against the minorities particularly against the Muslims. The Mini 1983 styled ‘Aluthgama’ communal attacks against the Muslims was one such result, which arose directly and indirectly from Ven. Gnanassara’s venomous hate speech. Unfortunately the obvious offenders were allowed to let go scot free while their patron saints in the MR regime attempted to label the victims as perpetrators, even at the Geneva HR Forum. Thus, the intellectual civil community raised concern about allowing these hate groups to spread communal venom without fear or sanction and faulted the government and law enforcement authorities for failing to use even the available legal remedies to act against the offenders. Minister Vasudeva was instrumental in attempting to ban hate speech and was seen to take measures to introduce specific laws in this regard, however with no success. In this scenario, an imperative need was felt to introduce more specific laws to ban hate speech , in the best interest of communal harmony and to avoid repetitions of the enormous damage done by groups like BBS. Thus, this became one of the key promises of Maithripala Sirisena, the challenger to the mighty MR at the January 8th Elections.

The Maithri-Ranil government elected in August 2015, is now seeking to introduce and propose specific provisions and amendments to the Penal Code to deal with hate speech/crimes. The Bill to amend the Criminal Procedure Code seeks to introduce a two-year prison sentence for anyone guilty of “causing or instigating acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility by the use of words spoken, written or intended to be read, or by signs, or by visible representation or otherwise.”. Further, the proposed amendments in the draft bills also stipulate that a warrant would not be required to arrest persons violating these laws.

It is interesting to note that the measure has immediately run into hot waters with many objections being made not only within the Parliament , but also outside as well- both civil and legal activists taking arms against these measures. Obviously BBS, the culprits who pushed the society to take these measures has now objected to these amendments stating “If the Acts were amended every coconut tree could be used as gallows and every government school and institutions would turn into prisons,”. It will be funny if they don’t raise hue and cry on this matter! The Tamil National Alliance (TNA) too also called for the withdrawal of the Penal Code (Amendment) Bill, placed on the Order Paper, citing that its provisions were identical to those of the Prevention of Terrorism Act (PTA). They allege that the previous government used this very provision to target persons from the Tamil and Muslim communities and to deprive them of their freedom of speech and expression guaranteed under Article 14(1)(a) of the Constitution.

Many in the legal fraternity too remarked in a similar tone, stating that it is extremely unfortunate as the new provision is basically identical to Section 2 (1) (h) of the Prevention of Terrorism Act (PTA) and a loose and vague definition of hate speech would result in a very constricting environment in which no one will feel safe even speaking the truth. ‘”The issue is to what extent hate speech is restricted. Incitement to violence must be drawn the line at. There are all forms of expressions. As this is a multi-ethnic and multi-religious society, if violence is caused, whoever is responsible must be dealt with under the law. This is the litmus test’. ‘There is no definition given and since what has been presently put down is too broad, illustrations and examples as in the cases of defining theft or murder in the Penal Code should be specified’. The legal hawks also query: What about online content and electronic media? Is this only for public speeches, offline private speeches and newspapers? Is the Computer Crimes Act No. 24 of 2007 going to be amended in parallel? The Government must clarify. Arresting without a warrant can also fall under arbitrary arrest.

The dilemma any government faces in dealing with hate speech/ crimes while protecting the freedom of speech of people is reflected in the two cases given at the beginning of this article. There is a range of approaches to ‘when hate speech might be regulated?’. On one end is the libertarian perspective; on the other, the communitarian. Libertarians believe that individuals have the right to free speech and that government should be able to limit it only for the most compelling reasons. Most libertarians recognize fighting words as an example of a sufficiently compelling reason to limit free speech. Notwithstanding the libertarian viewpoint, the courts have been careful to interpret this exception narrowly. Communitarians take a different approach. They believe that the community’s well-being is society’s most important goal and that an individual’s right to free speech may be limited in the interests of community harmony. They believe that treating people with fairness and dignity justifies at least some free-speech restrictions-that eliminating or reducing hate speech is a sufficiently compelling goal to justify government regulation. Communitarians would expand the fighting words doctrine to allow for increased government regulation.

Should legal provisions therefore be introduced to ban hate speech? The answer is Yes! But there are few vital aspects which must also be looked into without hastily doing so , as the same provisions may be used to curtail permissible speech and socio-political critique in the public forums. Firstly , can a middle ground be found—away to accommodate both the communitarian and libertarian perspectives? Perhaps so. Government has the obligation to protect speech by disallowing laws that are too restrictive, yet it can also encourage individuals to respect each other. Laws and policies which are not clearly and narrowly drafted can violate freedom of expression, and may also be counterproductive to efforts to eradicate racial discrimination and prejudice/hatred against particular communities. It is therefore important that the provisions must be more specific and clear , and also serve a legitimate aim under international human rights law while being necessary and proportionate to achieving that aim. It is clear that even courts and other bodies have struggled with definitions. Therefore defining such concepts clearly is imperative as laws which restrict freedom of expression must be “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.

Secondly, as Amnesty International says; Efforts to prohibit “hate speech” or otherwise restrict expression in the interest of non-discrimination should reflect the principle that “All human rights are universal, indivisible and interdependent and interrelated.” Indeed, it has been argued that “nowhere is this interdependence more obvious than in the discussion of freedom of expression and incitement to national, racial or religious hatred.” Freedom of expression is related to other rights and is essential for their realization. Excessive restrictions on freedom of expression may therefore undermine many other human rights. The interdependence between the rights to freedom of expression and non-discrimination requires States to pay detailed attention to laws and policies on “hate speech.”

Thirdly, it must be clearly understood that mere prohibition of hate speech per se will not be effective. The prohibition of “hate speech” can only be truly effective when undertaken as part of a holistic approach to combating prejudice and discrimination that goes beyond prohibition of expression. As the Joint submission by the UN Special Rapporteur on freedom of opinion and expression, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on racism, racial discrimination, xenophobia and related intolerance, argues,

‘Hate speech is but a symptom, the external manifestation of something much more profound which is intolerance and bigotry. Therefore, legal responses, such as restrictions on freedom of expression alone, are far from sufficient to bring about real changes in mind-sets, perceptions and discourse. To tackle the root causes of intolerance, a much broader set of policy measures are necessary, for example in the areas of intercultural dialogue or education for tolerance and diversity. In addition, this set of policy measures should include strengthening freedom of expression…..’

What will ultimately work thus will be a holistic approach to preventing racial discrimination and racial/ religious hatred, that avoids over-reliance on legal prohibition and sanction and focuses on positive measures, especially education, to combat racial intolerance and discrimination.

Fourthly, also importantly, government officials and political leaders should lead by example by promoting the values of equality and diversity and condemning instances of discrimination or discriminatory rhetoric by government officials. This approach was woefully lacking during the MR Regime, when the government and its’ spokesmen themselves became patron saints of the hate groups and tried to blame the victims without acting against the perpetrators both firmly and decisively.

As the same aforesaid joint UN statement stated, ‘The strategic response to hate speech is more speech: more speech that educates about cultural differences; more speech that promotes diversity; more speech to empower and give voice to minorities, for example through the support of community media and their representation in mainstream media. More speech can be the best strategy to reach out to individuals, changing what they think and not merely what they do’. This should be our long term goal and what will be a sustainable approach.

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Latest comments

  • 10
    1

    2 Political parties are opposed to stringent controls on hate speech. One is BBS and the other is TNA.

    Hate speech in both bases is their bread and butter.

    • 7
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      Quite right!

      The massive stupidity of the TNA to refuse the Bill against Hate Speech, which would have a chilling effect on BBS and such racist groups shows the stupidity of the TNA and the lawyers that advise it.

      They should study the British Parliament Bill on the Prevention to the Incitement to Racial Hatred that was passed when British Muslims were under attack from Neo Nazis.

      Sri Lanka’s so called civil society and its stupid lawyers who also oppose multiculturalism in Sri Lanka are ironically the worst enemies of liberalism! They cite all sorts of international and UN conventions and do bugger all.

      • 0
        0

        Who else are stupid in this list:

        Ainslie Joseph – Convenor, Christian Alliance for Social Action
        Annouchka Wijesinghe
        Aruni Jayakody
        B. Gowthaman
        Balasingham Skanthakumar
        Bhavani Fonseka – Attorney-at-Law
        Bishop Duleep de Chickera
        Bishop Kumara Illangasinghe
        Brito Fernando
        Caryll Tozer
        Chameera Perera – Left Center
        Chandra Jayaratne
        Chandraguptha Thenuwara
        Chulani Kodikara
        D.B.S. Jeyaraj – Journalist
        Deanne Uyangoda
        Dr. Farzana Haniffa – Senior Lecturer, Sociology – University of Colombo
        Dr. Jehan Perera
        Dr. Kumudu Kusum Kumara – University of Colombo
        Dr. L. Solomons
        Dr. Paikiasothy Saravanamuttu
        Dr. S.B. Dhanapala
        Dr. Shamala Kumar – University of Peradeniya
        Faizun Zackariya – Citizens Voice
        Gajen Mahendra
        Gamini Viyangoda
        Gayathri Gamage
        Godfrey Yogarajah – Executive Director, Religious Liberty Commission & World Evangelical Alliance
        Gowrie Ponniah
        Hans Billimoria
        Harini Amarasuriya
        Herman Kumara
        Iromi Perera
        Ishan Jalill – Founder and Executive Director, Action Against Apathy
        Jake Oorloff
        Jeanne Samuel
        Joe William
        Jovita Arulanantham
        K. Aingkaran
        Kalani Subasinghe
        Kumari Kumaragamage
        Kusal Perera – Journalist
        Lakshan Dias – Attorney-at-Law
        Lionel Guruge
        Luwie Ganeshathasan – Attorney-at-Law
        Mala Liyanage
        Manouri Muttetuwegama
        Marisa de Silva
        Mujeebur Rahman – Journalist (Mannar)
        Nalini Ratnarajah – Woman Human Rights Defender
        Nigel Nugawela
        Nilantha Ilangamuwa – Journalist and Editor, Sri Lanka Guardian
        Nimalka Fernando
        Niran Anketell – Attorney-at-Law
        P. Selvaratnam
        Paba Deshapriya
        Philip Setunga
        Prof. Jayantha Seneviratne – University of Kelaniya
        Prof. S. Sivamohan
        Qadri Ismail
        R.M.B Senanayake – Retired C.C.S
        Rev. Br. Loyola Fernando FSC
        Rev. Dr. Jayasiri T. Peiris – Friday Forum
        Rev. Fr. Jeyabalan Croos
        Rev. Fr. Sarath Iddamalgoda
        Rev. Fr. T.L.R. Dominic
        Rev. Jason Selvaraja – Assembly of God, Chavakachcheri
        Ronnie Yogarajah
        Ruki Fernando
        S. Ratnajeevan H. Hoole
        S. Samaraarachchi
        S.C.C. Elankovan
        Sabra Zahid
        Sampath Samarakoon
        Sanjana Hattotuwa – Founding Editor, Groundviews.org
        Sanjayan Rajasingham
        Shakthi Ponniah
        Shashika Bandara
        Sheila Richards
        Shreen Abdul Saroor
        Sriyanie Wijesundara
        Sudarshana Gunawardana – Attorney-at-Law
        Sunanda Deshapriya
        Sunethra Bandaranaike
        Suren D. Perera – Human Rights Lawyer and Activist
        Suriya Wickremasinghe
        T. Mathuri – Attorney-at-Law
        Tanuja Thurairajah
        Tehani Ariyaratne
        Thyagi Ruwanpathirana
        Udaya Kalupathirana
        Visaka Dharmadasa
        Waruna Padmasiri – Attorney-at-Law

        Organizations

        Association of War Affected Women (AWAW)
        Centre for Policy Alternatives (CPA)
        Families of the Disappeared (FoD)
        INFORM Human Rights Documentation Centre
        Law and Society Trust (LST)
        National Fisheries Solidarity Movement (NAFSO)
        National Peace Council (NPC)
        Right to Life (R2L) Human Rights Centre
        Rights Now Collective for Democracy
        Women’s Action Network (WAN)

      • 0
        0

        Who else are stupid in this list:

        Ainslie Joseph – Convenor, Christian Alliance for Social Action
        Annouchka Wijesinghe
        Aruni Jayakody
        B. Gowthaman
        Balasingham Skanthakumar
        Bhavani Fonseka – Attorney-at-Law
        Bishop Duleep de Chickera
        Bishop Kumara Illangasinghe
        Brito Fernando
        Caryll Tozer
        Chameera Perera – Left Center
        Chandra Jayaratne
        Chandraguptha Thenuwara
        Chulani Kodikara
        D.B.S. Jeyaraj – Journalist
        Deanne Uyangoda
        Dr. Farzana Haniffa – Senior Lecturer, Sociology – University of Colombo
        Dr. Jehan Perera
        Dr. Kumudu Kusum Kumara – University of Colombo
        Dr. L. Solomons
        Dr. Paikiasothy Saravanamuttu
        Dr. S.B. Dhanapala
        Dr. Shamala Kumar – University of Peradeniya
        Faizun Zackariya – Citizens Voice
        Gajen Mahendra
        Gamini Viyangoda
        Gayathri Gamage
        Godfrey Yogarajah – Executive Director, Religious Liberty Commission & World Evangelical Alliance
        Gowrie Ponniah
        Hans Billimoria
        Harini Amarasuriya
        Herman Kumara
        Iromi Perera
        Ishan Jalill – Founder and Executive Director, Action Against Apathy
        Jake Oorloff
        Jeanne Samuel
        Joe William
        Jovita Arulanantham
        K. Aingkaran
        Kalani Subasinghe
        Kumari Kumaragamage
        Kusal Perera – Journalist
        Lakshan Dias – Attorney-at-Law
        Lionel Guruge
        Luwie Ganeshathasan – Attorney-at-Law
        Mala Liyanage
        Manouri Muttetuwegama
        Marisa de Silva
        Mujeebur Rahman – Journalist (Mannar)
        Nalini Ratnarajah – Woman Human Rights Defender
        Nigel Nugawela
        Nilantha Ilangamuwa – Journalist and Editor, Sri Lanka Guardian
        Nimalka Fernando
        Niran Anketell – Attorney-at-Law
        P. Selvaratnam
        Paba Deshapriya
        Philip Setunga
        Prof. Jayantha Seneviratne – University of Kelaniya
        Prof. S. Sivamohan
        Qadri Ismail
        R.M.B Senanayake – Retired C.C.S
        Rev. Br. Loyola Fernando FSC
        Rev. Dr. Jayasiri T. Peiris – Friday Forum
        Rev. Fr. Jeyabalan Croos
        Rev. Fr. Sarath Iddamalgoda
        Rev. Fr. T.L.R. Dominic
        Rev. Jason Selvaraja – Assembly of God, Chavakachcheri
        Ronnie Yogarajah
        Ruki Fernando
        S. Ratnajeevan H. Hoole
        S. Samaraarachchi
        S.C.C. Elankovan
        Sabra Zahid
        Sampath Samarakoon
        Sanjana Hattotuwa – Founding Editor, Groundviews.org
        Sanjayan Rajasingham
        Shakthi Ponniah
        Shashika Bandara
        Sheila Richards
        Shreen Abdul Saroor
        Sriyanie Wijesundara
        Sudarshana Gunawardana – Attorney-at-Law
        Sunanda Deshapriya
        Sunethra Bandaranaike
        Suren D. Perera – Human Rights Lawyer and Activist
        Suriya Wickremasinghe
        T. Mathuri – Attorney-at-Law
        Tanuja Thurairajah
        Tehani Ariyaratne
        Thyagi Ruwanpathirana
        Udaya Kalupathirana
        Visaka Dharmadasa
        Waruna Padmasiri – Attorney-at-Law

        Organizations

        Association of War Affected Women (AWAW)
        Centre for Policy Alternatives (CPA)
        Families of the Disappeared (FoD)
        INFORM Human Rights Documentation Centre
        Law and Society Trust (LST)
        National Fisheries Solidarity Movement (NAFSO)
        National Peace Council (NPC)
        Right to Life (R2L) Human Rights Centre
        Rights Now Collective for Democracy
        Women’s Action Network (WAN)

        https://www.colombotelegraph.com/index.php/civil-society-urges-govt-to-withdraw-bills-criminalizing-hate-speech/

      • 0
        0

        ”Human Rights Commission of Sri Lanka has written to the Government of Sri Lanka advising the Government to withdraw the proposed amendment to the penal Code and substitute it with the relevant provision of the ICCPR Act of 2007” – Dr. N. D. Udagama chairperson, Human Rights Comrnission of Sri Lanka, 17 Dcember 2015

    • 5
      0

      Vibhushana

      “Hate speech in both bases is their bread and butter.”

      Yes. It is their Theology. Without that, they have nothing.

      So, this Bill against Hate Speech that leads to hate crimes, will give them a partial cure.

      Christian Theology Says, salvation, to get rid of sin. Buddhist , Islamic and other Theologies have similar theologians.

    • 0
      0

      ”93 Civil Society activists and 10 organisations have today urged the government to fulfil its obligations to its citizens and its international obligations by withdrawing the bills (amendment to the Code of Criminal Procedure and amendment to the Penal Code ) forthwith and commit anew to fostering a political culture conducive to the exercise of citizens’ free speech rights.” – 15 Decembr 2015, https://www.colombotelegraph.com/index.php/civil-society-urges-govt-to-withdraw-bills-criminalizing-hate-speech/

      How many of the signatories are BBS and TNA?

    • 0
      0

      ”Human Rights Commission of Sri Lanka has written to the Government of Sri Lanka advising the Government to withdraw the proposed amendment to the penal Code and substitute it with the relevant provision of the ICCPR Act of 2007” – Dr. N. D. Udagama chairperson, Human Rights Comrnission of Sri Lanka, 17 Dcember 2015

  • 4
    1

    Hate Speech will eventually become a criminal offence punishable by law. For now, anyone can report online hate speech at the following site and make an effort to shut down such sites or take civil actions:

    http://www.nohatespeechmovement.org

  • 2
    1

    Hate speech can lead to race riots as in the past in Sri lanka but how do you define hate speech. Bensen

  • 2
    0

    In the right for information act public publishing and at meetings hate speech should not be allowed. Hate speech should be struck out of the hansard and not made public when spoken in parliament with necessary action by the speaker.

  • 5
    0

    Lukman Harees

    RE: The Challenge Of Balancing; Hate Speech Laws With The Freedom Of Expression

    Thank you for the write up.

    Those who practice hate speech, have an internal disease.

    Religion were not telecom successful in curing this problem.

    Therefore, the sate need to step in and cure it for them,

    That is the responsibikuty of the the state/

    All need to support this Bill as a partial cure for the disease.

    Please look at the US Hate Speech Laws.

    Hate crime laws in the United States

    https://en.wikipedia.org/wiki/Hate_crime_laws_in_the_United_States

  • 4
    2

    The Aussies call a spade, a spade.
    They tell those who do not fit into their society, to ‘piss off’.

    https://www.youtube.com/embed/yZZlo0WZ_iU?rel=0

    We should do the same.

  • 2
    0

    I agree hate speech is the bread and butter of the BBS and the TNA. Without hate speech these two extremists elements have nothing else to incite race and religious discord and violence to survive.

    BBS has started an aggressive attempt to protest prohibition of hate speech law as they know very well without hate speech they have nothing else to offer. You can see how this Bebadda Gnanassara is reacting to the bill.

    The govt. should take examples from the UK and U.S. In this matter.

    Govt.should be aware that democratic freedom of speech does not extend to offend, attack, incite racial or religious violence, cause damage to people’s reputation and the freedom of speech should be balanced with the democratic rights of other.

    But in Sri Lanka allowing indiscriminate freedom of speech me and giving a licence to Kasippu Gnanassara to incite the innocent Sinhala Budhist individuals to commit pogrom on minorities.

    Let us wait and see the current Govt which came to power because of the minorities will give the the disgraceful Budist monk Gnanassara a licence to kill or destroy to minorities.

  • 1
    1

    Hate Speech as explained by the proposed laws are so vague, it can be convoluted and can be used to convict innocent people. The proposed laws can be used to punish innocent people,specially the media. The laws can curtail freedom of speech and free expressions. It is not good for journalists who expresses their views on matters of importance. Those who promote these hate speech laws wants to punish free minded journalists.
    Henry

  • 1
    0

    This is a preventative action against anyone who speaks against the govt… and, there goes freedom of speech in Sri Lanka!

    Well done yahapalanaya.. lol

  • 0
    0

    Some of the commentors see what they wish to see: TNA and BBS.

    They cannot see many others are protesting against the draft:
    human rights activists including lawyers, media personalities, HRCSL, ….

    Explosion of hate through social media not only in Sri Lanka but also in other South Asian countries is becoming dangerous. Formal and informal education should play an important part in preventing the spread of hate.

  • 2
    0

    MaRa family is disturbed these days due to Waseem Thajudeen’s case. BBS is brain child of MaRa. And they know Muslims did not support him in the last elections. So this is MaRa politics pinching muslim community this way MaRa thinks he can diva the attention of the people. Once again it is a miscalculation. According to Budism he has to pay the price for his “KARUMA”

  • 0
    1

    IF they want to ban hate speech, quran should be edited first.

  • 0
    0

    Jim softy’s comment itself is a hate comment. No one should comment on either the books or teachings of any of the religious leaders. In my opinion laws alone cannot bring unity among different communities or religious sections. By creating attitudinal changes educating and making the people aware of each others’ religions could make a great contribution in this regard. Popular opinion on introducing the new laws on hate speech is they are not essential since already there are laws through which those who violate could be brought to book.The political leaders also should act in a responsible manner in their political actions whatsoever. I feel if this could be promoted though not in the near future but in the long run at least the next generation would realize the blunders committed by their forefathers by denouncing hatred towards others over religion, language, community, cast or race, etc.
    freethinker.

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