The issue of the punishment of hate speech seems to raise more questions than it answers in the Sri Lankan context. Invariably there are the arguments about free speech, which are of concern to the genuine rights activist or those purporting to be one. There are also arguments about the weaknesses and gaps in the existing law of the land and therefore the argument for new law. At the same time, there are concerns about the political commitment of the government of the day to apply the law of the land without fear or favour to whoever is alleged to be engaging in hate speech. That it is an issue of importance is beyond dispute in this post-war land of ours, where real peace appears to be elusive, the ethnic balance fragile and the culture of impunity persistent.
To begin with – what is hate speech? Definitions abound, pushing closer to Justice Frankfurter’s definition of pornography – I know it when I see it. The Council of Europe’s definition of hate is “….all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti – Semitism or other forms of hatred based on intolerance including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin”. The American Bar Association defines hate speech as “any kind of speech that incites to hatred, violence and discrimination and tends to offend, threaten, or insult groups based on race, colour, religion, national origin, sexual orientation, disability or other traits”. The International Covenant on Civil and Political Rights (ICCPR) explicitly states in its Article 20 (2), that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.
In the Sri Lankan context the existing laws that can be used to prosecute hate speech are contained in the Penal Code, the Prevention of Terrorism Act (PTA) and the ICCPR Act No 3 of 2007. The Penal Code provisions are too broad and outdated and can have a chilling effect on the freedom of speech if misused. The PTA has been subjected to severe criticism. Section 2 (h) has been used as a political tool to stifle dissent as in the conviction of journalist J.S. Tissanayagam and the detention of Azath Sally. This leaves the ICCPR Act – section 3- which is a verbatim reproduction of Article 20 of the ICCPR.
There have been a number of reports of persons being arrested under the ICCPR Act especially after the communal violence in Gintota (2017) and Digana (2018). Yet, according to news reports, none of the individuals arrested after the Digana violence have been indicted so far by the Attorney –General and the main suspects are being re-remanded as the police investigation still remains incomplete even after four months. Indeed, there has been no prosecution of perpetrators responsible for the communal violence in Aluthgama in 2014 either. In the existing legal framework, as provided by Article 20 of the ICCPR, the key word appears to be “incitement” and action needs to be framed around it.
The shrill, provocative ravings of monks such as the Venerable Gnanasara Thero of the Bodhu Bala Sena (BBS) has brought the issue to the fore in terms of the commitment of the “yahapalanaya” government to restore the rule of law and equality before the law. They need the statesmanship to provide leadership beyond the petty division of the spoils of government, to act decisively or else run the risk of being seen as complicit and in collusion with those forces of hate and division. Courage is needed to stamp out the politics of hurt, hate and harm and effect real and meaningful reconciliation.
The proliferation of hate speech on social media compounds the problem and action needs to be taken beyond the knee-jerk reaction of “shutting” it down, when proxies are available to access such sites. The use of the law too, in this regard risks being counter-productive. More effective will be the strategic counter attack against the armies of bots and trolls that have been amassed in the service of the politics of hurt and hate and harm. The fight needs to be taken to them for this also has partisan political costs. The last national elections in 2015 were the first to be really affected by social media.
The significance of hate speech must be seen in the global context of the rise of populist politics and the push back against globalization. The need to identify the “other “and ascribe to the “other “ an insidious agenda, which is both ridiculous to some but deeply troubling to others. The Goebelsian nature of the allegations against the Muslim community, especially the allegation about the sterilization pill and a host of others cited to prove the charge of a take over in numbers of the entire population of the country, really expose the vulnerability and insecurity of a community. And from the Anunayaka who called on Gotabaya Rajapaksa to become a Hitler to Minister Vijekala Maheswaran who wished the LTTE were back, the general political mood has swung away from the need to establish and consolidate the institutions and processes of liberal democracy to the smothering embrace of the strong leader.
Hate speech needs to be checked with strong, decisive action. It cannot be allowed to become more of the rhetoric of populism that it already has – social media has been alerted to this and some action has been initiated. We in Sri Lanka, in particular, need to ensure that the end of one conflict does not signal the beginning of another.