Hate Speech: The Real “Legal Black Hole” In Sri Lanka

By Punsara Amarasinghe –

The post-independent Sri Lanka witnessed a series of communal disharmonies which were partially rooted in the seeds of political chicanery planted by the politicians filled with a bitter sense of antipathy and it was obvious that the “hate speech” was the new impetus which paved the path for communal violence from 1958 to 2018.

It is by no means an exaggeration to describe “hate speech” as an emotive concept, which contains no univocally accepted definition under international human rights law. The context in Sri Lanka regarding the legal nexus of hate speech makes no difference from its twilight position in international law. The first legal tool that one needs to analyse in ascertaining hate speech is the scope provided by the International Covenant on Civil and Political Rights Act (ICCPR) in 2007. Even though it has been 15 years passed since the enactment of this Act as an attempt by the Rajapaksa government to give effects to the rights enshrined in ICCPR, the usage of the act on hate speech remains obscure in the judicial process in Sri Lanka. Section (3)1 of the Act states that it is an offence for a person to propagate war or to invoke ethnoreligious hatred that constitutes the elements of discrimination. Notwithstanding the overarching objectives of the ICCPR Act in giving effects to ICCPR in the domestic context, the utility of the Act as an instrument in preventing hate speech has become difficult due to the lack of awareness among legal practitioners   regarding the legal provisions of the Act. 

When communal violence erupted in 2017 and 2018, there were some instances where some alleged persons were arrested under the ICCPR Act. But, the role lethargic role played by the counsels in the Attorney General’s Department sabotaged the process as they delayed filing the indictments against the perpetrators. Even though Section (3)1 of the Act gives effect to the Article 20 of the ICCPR, there has not been an international consensus indicating what type of speech constitutes an incitement prohibited by the very Article. From a vantage point, one can argue the ambiguity of the Article 20 of ICCPR may be used in curtailing the dissent by totalitarian regimes and this position was affirmed by CPA in 2017 as they adhered to the same stances on ICCPR Act in Sri Lanka too.

The moot point that comes to the fore is whether Article 20 makes adequate contribution to the legal development of ICCPR Act in Sri Lanka. The Article 20 of the ICCPR states,

1. Any propaganda for war shall be prohibited by war 

2. Any advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. 

Paradoxically the ICCPR Act enacted in 2007 in Sri Lanka states that it aims at providing effect to certain provisions of the ICCPR and it should be noted that Act has failed in defining “incitement” provided under Article 20 of ICCPR. For a genuine fulfilment of the objectives of the Act Sri Lanka should make robust changes in incorporating Article 19 of ICCPR, which contains freedom of expression to make a balance with Article 20.   

The discontent stemming from the Prevention of Terrorism Act (PTA) raises the other legal issue regarding hate speech in Sri Lanka. As an Act came into force in 1979 with the motive of dealing with terrorism, the PTA has made a vacuum in describing the offences that it prescribed, which resulted in using PTA as a tool to oppress the dissent. The judgement of Tissianayagam in 2008, which manifested the absurdity of PTA as it was groundlessly used in farming charges for arousing communal feelings without explicitly referring to how “communal disharmony”, “ill will” or hostility amongst different communities were prompted by the writings of J. Tissainayagam[1]. The ambiguity arising from Section 2(1) of the PTA on “causes or intent to cause was visible in Tissainayagam’s trial, where the defence argued causation requires a demonstration between the words spoken and the consequences. Against the backdrop of a legal black hole that pervaded the Act, many observers and international human rights organizations continue to suggest the Sri Lankan government repel the PTA to formulate a new legal mechanism following the international standards.

All in all, the legal nexus of the hate speech in Sri Lanka needs serious reform to avoid the continued violence and impunity that have seriously undermined the state apparatus from attaining any progress. It should be noted, that the onus is on the Government of Sri Lanka to rectify the salient shortcomings of the ICCPR Act and PTA, while the other stakeholder consisting of think tanks, public intellectuals and international actors should continue their vigilant role as pressure groups.

[1] Kishali Pinto-Jayawardena, A Symbol of the Subversion of Law, The Sunday Times, 2009.09.06 ( Accessed Date: 2023.02.09).

*Punsara Amarasinghe is a post-doctoral researcher affiliated to Scuola Superiore Sant Anna, Pisa. He held visiting fellowships at Sciences PO, Wisconsin Madison and HSE, Moscow. His co-edited book “Thirty Years Looking Back: The Rule of Law, Human Rights and State Building in the Post-Soviet Space” was published in 2022 September

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