By 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.