​Commission responds to proposed hate speech legislation

The Human Rights Commission of Sri Lanka wrote to the Prime Minister on 15 December in relation to the proposal to criminalize hate speech through an amendment to the Penal Code.

While it noted that ensuring harmony between different communities is a vital function of a democratic State, the Commission expressed concern that "the overly broad manner in which the proposed amendment is formulated making it susceptible to future abuse".

"The Commission wishes to recommend to the Government that it be substituted by a formulation which has already been adopted by the Parliament of Sri Lanka in the International Covenant on Civil and Political Rights (lCCPR) Act, No. 57 of 2007 which is in accordance with fundamental rights and our international human rights obligations.

"The proposed formulation to criminalize hate speech (contained in the Gazette of November 6, 2015) reads as follows:

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 instigate acts of violence, or to create religious, racial or communal disharmony, or feelings of ill-will or hostility, between communities or different racial or religious groups, shall be punished with imprisonment of either description for a terrn which may extend to two years.

"That formulation is almost identical with s.2(1)(h) of the Prevention of Terrorism Act, No.48 of L979. The broad wording in the PTA provision did pave the way for abusive applications which resulted in the chilling of free expression. A prime example is the prosecution of journalist Tissanayagam.

"ln the ICCPR Act of 2007, our legislature adopted the following provision criminatizing hate speech:

No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. (s.3.1)

"That formulation is in accordance with Sri Lanka's international human rights obligations on free speech and permits prosecution only when there is proof of incitement.

"Therefore, we recommend that the Government withdraw the proposed amendment to the penal Code and substitute it with the above provision.

"Moving that provision in the ICCPR Act to the Penal Code is an advisable step. The Commission is of the view that the ICCPR Act should be abrogated in the future and all the human rights recognized therein should be incorporated into a future constitutional Chapter on Fundamental Rights."

Date: 15 December 2015

Source: Human Rights Commission of Sri Lanka