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bY Dr.M.A.M.H. Barry - Attorney-at-Law
The role of the Authorities is not to eliminate pluralism but to ensure that the competing groups tolerate each other (Serif v. Greece -The European Court of Human Rights, 14/12/99)

    Currently critical discussions are ongoing about growing suspicions and mistrust that exists among the Sri Lankan communities, especially among the Sinhala Buddhists and the Muslims. Factually there is no animosity between the Sinhalese and Muslim populations as they live like brothers in amity in many parts of the country especially in areas which have mixed populations. The portrayal of such suspicions and mistrust is mostly projected, imaginary and part of a propaganda campaign. However, there has been continuous overt and covert hate campaigns waged against the Muslims which had resulted in several sporadic incidents and recently turned the Aluthgama/Beruwela area into a riot zone.

Various views and theories are being exchanged and attributed for these adverse developments.  Some attribute these developments to Sinhala and Muslim extremism. Prior to describing any person or group as an extremist, one has to define the meaning of extremism. What does the word ‘extremism” mean in this context? Does it refer to the people’s eating habits, dress code or religious practice?

These practices are the religious rights of any religious group, which are accepted under the International Human Rights law and also guaranteed under our constitution. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) states “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom…to manifest his religion or belief in worship, observance, practice and teaching”. Besides this, the right to freedom of religion is recognized as a fundamental right under (1) Several Treaties including the UN Charter (2) Customary International law (3) Ius Genitium(laws of the nations) and (4) Jus Cogens (peremptory norms accepted by mankind); and also it is a part of moral lingua franca (universal language).

Under the Sri Lankan Constitution the freedom of religion is guaranteed in article 10 which has the verbatim of the first part of Article 18 of the ICCPR and further Article 14(1) (e) of our constitution states, “every citizen is entitled to the freedom (Religion) either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching”. (Bolded-emphasis added)

These provisions also should be read with the article 12(1) of the Constitutions which enacts “All persons are equal before the law and entitled to the equal protection of the law and the Article 12(3) which states “No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds”.

  Meaning of Manifestation  

The courts in many states including ours have given a wide and non exhaustive meaning for the word ‘manifestation of religion’.


 The manifestation is generally considered as a complete freedom to practice religion subject to restrictions which are laid down by the International Covenants and derivative domestic laws. In the case of Kokkinakis v. Greece (1990), the European Court of Justice upheld ‘the freedom of religion as an essential foundation of a democratic society and it stated further that the pluralism is indissociable from a democratic society, which has the been clearly won over the centuries, depends on the freedom of thought, conscience and religion” (25/5/93’ A 260). The Indian Supreme Court in the landmark case of Shirur Mutt (1944) declared that “…a religion may not only lay down code of ethical rules for its followers to accept, it might prescribe the rituals, observances, ceremonies and modes of worship which are regarded as integral parts of religion (but) these forms and observances might extend even to matters of food and dress (A.I.R. 1954 SC 282).

In An American landmark case of Hearn and United States v.
 Muskogee Public School District (2003), the United States Justice Department intervened to protect the religious right of a sixth grade student who was suspended from the school for wearing a hijab (head covering) to the school. The US Justice Department opened an investigation and then intervened in the lawsuit upon finding evidence to support a claim based on the denial of her religious rights under the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.
The US court declared that although the District or schools have the power to enact rules on the school uniform, they could not override the constitutional guarantee given to its citizens. Further, the court accepted the US state department’s contention that the District or the School does not have authority to give choice to a student to decide between the religious right and free education right because a student is entitled to both the rights which are guaranteed under the Constitution.
The EU Court in Ewedia and Others v. The United Kingdom (2013) declared that ‘wearing cross openly by two Christian staffs during the working hours at British Airways is within the ambit of the right to freedom of religion. It stated further that the British Airways cannot deprive the right to manifest religion of its staffs through the internal regulations. Further, wide examples were given to the meaning of manifestation of Religion/Belief under the declaration A/RES/36/55 on the elimination of all forms of Intolerance and of Discrimination based on Religion and Belief.

Hence, no one should be branded as an extremist simply because he/she wears a dress which we do not like or eat food which we do not eat. If we brand people on the basis of their dress and food, there will be no end to our listing. Do we call former Indian P.M Manmohan Singh a religious extremist because he was wearing a ‘turban,’ which is the symbol of Sikh identity? The obvious answer is no, everyone has accepted, even the BJP, that the former PM is an honest and sincere person with a proven loyalty to his country. Some of the famous Indian Sikh players and a considerable number of the Indian Soldiers (Sikhs) wear the religious ‘turban” and no one in India call them extremists. A fair number of Muslim cricket players sport beards. Does it mean that they practice extremism and are not loyal to their respective national teams? South African cricketer Hashim Amla is well known for his religious conscience and has now been appointed the captain of the South African cricket team.


There are endless examples which prove that the religious manifestation is not harmful for national integration or unity among people. In fact, the global scenario reveals that the states that recognize pluralism and differences have successfully established political, economic and social stability. The apparent example is India which embraces all religions equally in its polity though it is a secular state and this helps India to maintain unity among more than one billion people who belong to diverse communities. On the other hand, states that have failed to recognize pluralism and diversity are falling apart and showing signs of disintegration
Therefore, no one could or should judge anyone’s loyalty to his country based on his eating habits or mode of dress or religious manifestation. The extreme love and kindness to the fellow country men accompanied with the humble respect for others’ rights are necessary signs of one’s loyalty to his/her country. The mode of dress is not a symbol of extremism but it is a symbol of religious or ideological identity. Even Marxists/Leninists or Communists sport beard and wear red shirts and caps which symbolized that they are Marxist or leftist supporters.

The baseless propaganda being brought against Sri Lankan Muslims by labeling them ‘Jihadists, Taliban etc’ and singling mud at them propaganda reasons will not help the cause of creating trust, goodwill and reconciliation among communities but will create further mistrust and suspicion. This Goebbels style propaganda will only help sustain hatred and revulsion among the Sri Lankan Society. This type of propaganda based on false fear or phobias will only lead us down the rod to destruction. No one could be punished or reprimanded simply because someone else believes that he will commit wrong in the future. In legal terms, there is no cause of action for imaginary wrong and to charge a person even for an attempted crime, the complainer needs to prove that the accused has transcended the preparatory line.

The propaganda against the Muslims is unsupported and uncorroborated or based on stereotyping or stigmatization by taking some individual cases for generalization to create well plotted stories. This is a straight forward hate campaign which intends to portray the Muslims as backward, extremist, fanatics and terrorists. In simple language, this type of propaganda is known as phobias or faked/false fear psychosis. These types of propaganda are traumatizing the Muslims and inflicting continuous mental torture on them. The UN held the Durban Summits (three summits on the same subjects), the final document of Durban 11 Resolution against Racism deplored, ‘…religious intolerance and violence including Islamophobia, Antisemitism, Christainophobia and anti-Arab ism as well as the ‘derogatory stereotyping and stigmatization of persons based on their religion or belief.’

It also called international communities to fully and effectively prohibit any ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.
Nevertheless, the right to religion is not extended to harm others under the guise of a religious practice. Under the International law and under our law the religious right is restricted when this right is misused to interfere with the rights of others or when it is used to pose a danger to the society or harming others through violent or propaganda means. This kind of behavior necessarily amounts to extremism or fanaticism and this should be stopped because it will lead to disunity, disintegration and destruction. The hate campaign by any person or any group against any religious or racial group is the essential part of the extremism or fanaticism. Although the religious groups could manifest their respective religion they could not under the law engage in hate campaign against others.

The hate campaign is banned across the globe and many states have enacted special laws to prohibit it. South Africa has specifically included the prohibition of hate campaign in its constitution. According to the article 16(2C) of the South African Constitution, ‘the freedom of expression is not extended or not available for advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. Further, according to the article 20(2) of the ICCPR, the state parties have to enact necessary domestic law/s to prevent hate speech/campaign against a religion or race.

  Existing Sri Lankan Law  

The Penal Code of Sri Lanka contains sections 290-292 (offenses relating to the religions), which along with other similar provisions contain set of offenses relating to religion including uttering words with deliberate intention to injure religious feeling. The sections 291A and 291B are significant as they deal with hate acts. Under the sections 15(1a) read with 15(2a) (1) of Sri Lanka Press Council Law NO. 5 of 1973, any matter intended to insult any religion or founder of any religion is an offence under the said law.

Further, Sri Lanka also has obligation under the article 20(2) of the ICCPR to bring necessary laws to prevent hate speech/campaign against a religion or race.

  The National Identity: Through Assimilation or Integration?  

    Many people including political parties, religious leaders and intellectuals speak in favour of creating national identity and they inquisitively question on how to create such national identity. One may argue in favour of creating a national identity through assimilation which means assimilating all cultures and different identities into one national culture and one identity. The assimilation may be ideal for a state which has a homogenous population but it is not realistic or practical to a state which has heterogeneous population belonging to diverse culture and different religions.

Any attempt to assimilate different identities into one will be not successful in a pluralistic society like Sri Lanka as it will force the people belonging to various cultures and identities to give up their diversity and identities, which is not possible in the rational and realistic context.
Neither majority nor minority communities will give up their respective identities.

The diversity cannot be eliminated by force or compulsion as it will deprive the people’s fundamental rights which they do not delegate to any authority but expect the state to protect them as the part of state’s obligations under the social contract.

      Integration of all Diverse Groups  

In a pluralistic society like Sri Lanka where the multi-religious, racial and cultural identities exist, the recognizing and respecting the diversity and differences are the essential requisites for the national unity, identity and integration. The creation of national identity needs true spirit, feeling, emotion and sentiment on the part of the people. This could only happen when no community is humiliated or alienated as any alienation or humiliation of any people make them feel that they are not equally/equitably treated. When all segments of the society feel that they are equally treated and mutually respected, the working towards the national goal will be an unproblematic task.

When the former Indian PM V.P. Singh was elected to power he urged the Indians to respect each other and call them to show their emotional unity. This indicates that emotional unity could take place only if people respect each other. As former Malaysian PM Mahathir Muhammed once said ‘in a pluralistic society people have to appreciate others’ cultures and traditions and if they cannot appreciate them, they should tolerate them. The tolerance is the minimum requirement (de minis) for the successful and effective function of a pluralistic society.

Tolerance does not mean that one tolerates others’ religious or cultural practices because he likes them but he tolerates them even though they are not appealing or pleasing to him. The success or failures of nation building is directly dependent on the unity of the country. The unity does not mean only territorial unity but it is necessarily a unity among people. Unity is also endogenously connected with the integration of diverse people as one people of the nation without harming their respective identities. The hate campaign and incitements are barriers to this goal as it will polarize and divide communities and sadly will lead to divisions and separation.

Hence, the state should play a positive role to realize the goal of national integration by uniting people and establishing justice, equality and equity. As the guardian of its subject (people) the state has the fundamental legal and moral duties to make reconciliation among the communities and establish unity, so every Sri Lankan could emotionally and humbly claim that Sri   Lanka is my country.
The writer is an Attorney-at-Law, Senior Lecturer in Law and International Politics and the Author of “Reflections of Evergreen”.