Centre for Policy Alternatives on 3 September, 2018

Confronting Accountability for Hate Speech in Sri Lanka: A critique of the legal framework

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Post-war Sri Lanka has witnessed numerous incidents of ethno-religious violence. From Aluthgama in 2014 to Gintota in 2017 to Ampara and Digana in 2018, instances of ethno-religious violence have escalated to the point of property damage, grievous injury, and—in the cases of Aluthgama and Digana—death. Violence of this nature is not restricted to the Buddhist and Muslim communities, as seen in these examples, nor is it a novel phenomenon. Anti-Tamil riots in 1958 and 1977, the events of Black July in 1983, the 1915 Sinhalese-Muslim riots, the 2001 Mawanella riots, and numerous other instances, stemmed from festering tensions between ethnic or religious communities. In fact, the incidence of ethno-religious violence in modern Sri Lanka can be traced as far back as the Kotahena riots of 1883, which involved clashes between Buddhist and Christian communities.

This latest bout of ethno-religious violence has prompted demands for the prosecution of both hate crimes as well as the hate speech that is believed to have led to such violence. As pointed out by numerous parties in response to the government’s attempts to introduce new hate speech legislation in 2015, Sri Lanka’s legal framework already contains a number of provisions addressing hate speech. However, the dearth of prosecutions or convictions under this framework despite the recurrence of these incidences is cause for concern. Inaction by successive governments has also contributed to increasing fears among minorities and strengthened a sense of impunity among perpetrators. The events of the past few years have made it apparent that neither the incidence of hate speech nor the severity of its consequences are likely to diminish without serious and tangible action being taken.

In light of this, there is a need to evaluate the existing Sri Lankan legal framework which provides for the prosecution of hate speech to determine whether the lack of action on the issue is a product of legal gaps; practical issues of a lack of capacity or resources; or other, more complex reasons stemming from the current political context and dynamics.

The Centre for Policy Alternatives has prepared this report to assess the legal framework on hate speech in Sri Lanka. The report identifies gaps in the framework and overbroad provisions that may not curb hate speech, lead to violations of fundamental rights and freedoms and facilitate excessive censorship. The report also fills a gap in the literature by shedding light on the limited number of steps taken to address accountability in this regard despite a broad legal framework addressing the issue. The report accordingly provides a range of recommendations for potential legal, policy and structural reforms. The report reiterates that swift and decisive action is needed by the Government and other stakeholders to prevent future incidents and strengthen the rule of law. The report is, however, not an attempt to document incidents of hate speech, as this task has been initiated by others.

The report begins with a brief theoretical discussion on freedom of expression and hate speech in the remainder of this introductory chapter. The following chapters examine the legal framework pertaining to hate speech in Sri Lanka by laying out the key legislation—the ICCPR Act, the Penal Code, the Prevention of Terrorism Act and the Police Ordinance—and examining judicial decisions arising from these provisions. This analysis reveals a number of practical challenges which confront the application of these laws to hold perpetrators to account and thus result in limited prosecutions and convictions. The chapters accordingly provide a number of ideas for action and reform. The concluding chapter collates and summarises these reform proposals to address lacunae in the existing legal framework.

Download the report here.

Read ‘Liking Violence’, CPA’s 2014 report on online hate speech in Sri Lanka, here.