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• An unambiguous legal definition for ‘hate speech’ is important when making it a punishable offence

Inevitably anybody would be reminded of the anti-Muslim propaganda campaign carried out by several extremist groups for about three years before the regime change in January with the government’s current move to promulgate laws against ‘hate speech’. 

Hence, it is appropriate to conclude that the government has been prompted to bring in amendments to the Criminal Procedure Code and the Penal Code by hate campaigns.

One could also surmise that this move by the government was necessary in the wake of the adoption of this year’s resolution on Sri Lanka at the UNHRC sessions in September which called on the government to take action against those who carried out attacks on “…. members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future.”

A new offence will be brought into the Penal Code under the draft legislation, as Section 290c, which reads: “Whoever, by the use of words spoken, written or intended to be read, or by signs, or by visible representation, or otherwise, intends to cause or attempts to cause or instigates or attempts to instigate, acts of violence or religious, racial or communal disharmony, or feelings of ill-will or hostility, between communities or different classes of persons or different racial or religious groups, shall be punished with imprisonment of either description for a term which may extend to two years.” 

However, now the move has been met with stiff resistance not only by those who are well known for their vituperative remarks against other communities but also by those who were against them and supportive of the UNHRC resolution. Ironically, on Friday, the Bodu Bala Sena (BBS) as well as the Tamil National Alliance (TNA)-two groups that had been at odds over the very matter of hate speeches -voiced separately against the amendment to be made in the Penal Code and the Criminal Procedure Code. In a way, former President Mahinda Rajapaksa has to be appreciative of this amendment since he was the one who suffered most in terms of loss of power, privilege and prestige as a result of hate speech. Had there not been hate speeches made against Muslims during the last three years of his tenure that alienated the Muslims proportionately more than the other communities, especially the Sinhalese, from his government, he could have won the last presidential race comfortably bagging just another two hundred thousand Muslim votes. However, going by the remarks he had made recently on the school uniform controversy, he seems to have not changed his stance on race relations. The BBS alleges that this new amendment to the Penal Code can be used against Sinhalese and Buddhists while the TNA was of the view that it would be used against the Tamils and Muslims since the Penal Code Amendment Bill and the much hated Prevention of Terrorism Act (PTA) contained identical sections. Both groups had stated that these amendments would be used to suppress the freedom of speech enjoyed by the people. The TNA has especially recalled how during the previous government of President Rajapaksa the Sunday Times journalist J.S. Tissainayagam, convicted by the Colombo High Court and sentenced to 20 years rigorous imprisonment for writing two articles that were said to be supportive of the LTTE and how the National Unity Alliance Leader Asath Sally was arrested under a similar charge after he challenged the BBS. Two petitions have already been filed in the Supreme Court by Sudar Oli Newspaper Editor Arun Arokianathan, challenging the proposed amendments to the Penal Code and the Criminal Procedure Code, criminalising hate speech on the grounds that the provisions are identical to sections of the Prevention of Terrorism Act that allowed the state to arrest and detain critics, including Journalist J.S. Tissanayagam and AzathSalley. 

Concerns of both the TNA and the BBS are comprehensible since both are mainly dealing with ethnic relations. The BBS always comes out with Islamphobia and Muslim-bashing which could amount to  hate speech. Already there is a court case against its general secretary the Ven Galagodaatte  Gnanasara Thera for allegedly insulting the Holy Qur’an. 

Also the TNA always accuses the government over various issues pertaining to the ethnic problem which at times could be treated as hate speech. Muslim leaders seem to be happy with the new amendments since their community bore the brunt of hate speech over the past several years and were apparently of the view that these amendments would bring solace to them. However, this is a tricky issue to comprehend since there must be steps to curb hate speech that might result in national disasters while there is no clear-cut definition for hate speech. And the dividing line between hate speech and one’s concern over his community is sometimes blurred. 

There are occasions when some remarks made by an individual clearly seem to be hate - rousing. However, hate speech for one may be a patriotic speech to another. 

In terms of definition hate speech is a case similar to terrorism. Even the United Nations has failed so far to define terrorism that could be acceptable to all countries. On behalf of the Organisation of Islamic Countries (OIC) on October 7, last year, the Egyptian delegation explicitly told the UN General Assembly: “The group reiterates the need to make a distinction between terrorism and the exercise of the legitimate rights of peoples to resist foreign occupation.”
 Likewise, Iran, speaking on behalf of the Non-Aligned Movement said: “Terrorism should not be equated with the legitimate struggle of peoples under colonial or alien domination and foreign occupation, for self-determination and national liberation.” It is clear that the OIC and Iran had expressed these views keeping the Palestine issue in mind.

Likewise, an unambiguous definition for the term hate speech that could be acceptable to a majority of the society is important when laws making hate speech a punishable offence are implemented. In the absence of such a definition authorities would be able to abuse them in order to harass opponents. After all this is country where a journalist was sentenced to 20 years rigorous imprisonment for writing two articles said to have tilted towards the LTTE while Velayutham Dayanidhi alias Daya Master, the LTTE media spokesman who issued thousands of statements on behalf of the LTTE for years was released on bail as the police informed court that there was no evidence to say that he was associated with the LTTE.