Photo Courtesy: Sri Lanka Brief

Sri Lanka offers a potent lesson to other countries in Asia in its cynical adherence in theory to international law norms while blatantly flouting their substance through the treatment of its citizens. One of the blatant examples has been the lack of government action to hold perpetrators accountable in the past which has led to a culture of impunity in Sri Lanka. These patterns of impunity have persisted for decades on the part of successive governments and have impacted on vulnerable segments of the majority as well as the minority communities with singular force. Ratification of international treaties has failed to ensure basic protections for the minorities or for political dissenters, journalists, and activists. [1]

Sri Lanka indeed is facing a crisis of impunity. A common factor in all of the communal violence was the successive governments who were afraid to call out and condemn extremist ethno-religious nationalism for the toxic influence that it was. It is increasingly difficult, in fact nearly impossible, for people who have suffered serious violations of their human rights to receive justice and accountability. The failure by public authorities, whether due to legal obstacles or lack of political will, to fulfill the international obligation and bring perpetrators of human rights violations to account, is the definition of impunity.[2]The failure to hold to account, or to take action against these groups in respect of racist crimes, has only emboldened them further and plunged minorities into a deeper state of fear.

As Sri Lanka stands in its own shadow, it should reflect on the harm that impunity has caused the island and its many peoples. If the nation is to learn from history and avoid repeating past wrongs, those who have routinely violated the rights of others must be held accountable. Failing to hold those accountable for their actions, and inactions, that lead to harm and loss, fails humanity as a whole.[3]

Ethnic or religious tensions and violence have not been anything novel or new to Sri Lanka. Even in post-war Sri Lanka, discourses prompting a resurgence of ethno-nationalism and identity politics produced fresh tensions and fault lines and fostered an environment in which attacks on religious minorities began to take place with impunity. ( Gunatilleke:2015)[4].

In this backdrop of Sri Lanka’s pogrom-filled history, and in the context of a difficult transition from War to Peace, the anti-Muslim sentiment has been a phenomenon that took centre stage in Sri Lanka. Hate Speech, Racist/Religious Prejudice/Intolerance, and Islamophobia and the imperative need for tougher laws to tackle them, have thus received wide attention particularly in the recent Post-War context in Sri Lanka.

Analysts noted that the hate campaign including the spate of communal violence whether Aluthgama, Gintota, Ampara, or Digana, were well-orchestrated by hate groups with political connections to those in power, using racism as a political tool to achieve their ends.  It is crucial those committed to an inclusive and liberal future for Sri Lanka recognize those hate attacks for what they were: a microcosm of surging and deeply entrenched majoritarianism in State croft, rather than a chance episode of violence by an extremist fringe. Social Analyst Dr.Jayadeva Uyangoda, for example, argued that “Racism has actually been an expression of a widely shared political consciousness in Sri Lanka’s Sinhalese Buddhist society. Racism is a shorthand concept to describe that particular mode of political consciousness which we find among majority ethnic communities in many multi-ethnic societies in the world. It is rooted in a peculiarly ‘minoritarian’ complex among ethnic majorities.The extreme instance of racist political practice is the use of violence and terror against communities that are viewed as inferior and unequal. It comes with a process of ‘othering’ the other…As a mode of political and social practice, racism is associated with acts of prejudice, discrimination, bigotry, and intolerance. It produces state policies that institutionalize group inequality as well as the denial of human dignity to some citizens as communities.”[5].

Even a decade after the end of the war, it appears lessons have not been learnt. Akin to America’s 9/11, tragic Easter Sunday terror attacks, the ‘Sri Lanka’s 21/04’ became a game-changer, that virtually changed every aspect of life in Sri Lanka, particularly for the Muslims. It is an irony that the Muslims of Sri Lanka, who gave crucial support to gain Independence in 1948 as well as to end the ruthless Tiger terror in 2009, were tar-brushed as ‘extremist’ in the media and asked to assume collective guilt for this Easter tragedy carried out by a fringe extremist group. In the backdrop of this near ‘free-for-all’ post-Easter tragedy environment in 2019, there continued to be a rise in unbridled hate speech both in the mainstream as well as social media, with ‘Media terrorism’ making the entire Muslim community suspect in the eyes of the wider society, making them feel unsafe and insecure all over the country. On the heels of Post-Easter, anti-Muslim hate campaign; there came Corona pandemic, threat of which also did not spare the community from the scourges of racism.

It was a shame that the government and the law enforcement authorities have been turning a blind eye to the evil machinations of the rogue sections of the Media and the political class, even when the nation is battling a major pandemic –the Covid-19 virus. It is in this context, that the failure of the application of the relevant provisions of the Penal Code and ICCPR come into focus. Section 3(1) of the ICCPR Act particularly is mainly designed to hold persons who incite violence against national, racial, or religious groups accountable. However, although this Act should have been used as expected to convict perpetrators of incitement, it was not so. So, the main purpose behind this section of the Act has thus not been achieved to date. Instead, the ICCPR Act became an instrument for abuse when it is supposed to serve as a safeguard to protect and promote human rights.

Another burning issue of discrimination that came into intense discussion has been the denial of burial rights to the Sri Lankan Muslims in the case of Covid-19 deaths, thus the Government brazenly trampling upon the dignity and legitimate concerns of the Muslim community. The government whose mandate was built upon a majoritarian Sinhala vote base appears nonchalant and no mood to review its decision despite the appeals from the community, medical professionals as well as four Special Rapporteurs of the United Nations. It is deemed both unfair and unjustified, in the wake of increasing scientific evidence and WHO debunking the myth about ‘risks associated with the burial option’, as well as the human rights concerns raised by the Human Rights watchdogs. With the right to bury the dead available in more than 180 countries, in respect of Corona deaths, it was patently clear that the decision to deny this right to the Sri Lankan Muslims appears to have taken on arbitrary considerations, sans any scientific basis.

Democracy in Sri Lanka is thus seriously threatened by the State level racism as well as the upsurge of hate crime and weak state response. Domestic and international anti-racism law has been used inadequately, or not at all, to this end. This is particularly true with regard to hate-crime related activities of political organizations. There have been issues of serious concern in Sri Lanka, with the will of the State to uphold the rule of law and ensuring the independence of the Judiciary as well as with the politicized nature of the law enforcement authorities and their impartiality. Besides, the State’s indifference regarding hate speech by some political parties is obscene.

Hate speech should not be tolerated in the name of free speech. The idea that vulnerable persons and groups should have to tolerate hate speech against them in the name of freedom of expression—often over decades or a lifetime—is offensive. The right to free speech is a fundamental value, but it should not be allowed to outweigh the basic human rights of other people, especially their right to life and right to practice their religion and culture.[6] Hate speech is evidence of social disease; no more evidence should be required to accept that action needs to be taken to ensure the safety of all citizens.

Violent acts of hate are generally preceded by hate speech that is expressed publicly and repeatedly for years, including by public figures, journalists, leading activists, and even the state. It is imperative to pinpoint the main purveyors of hate speech that lead to violent crimes. Some examples include Norway’s Anders Behring Breivik’s as well the terrorist killer who massacred hundred in a NZ mosque. The local example was that of Ven. Gnanassara, whose provocative hate speech led to the infamous Aluthgama anti-Muslim violence.

Analyst Gunatileke notes ‘Perpetrators of hate speech have enjoyed impunity and state patronage. This oblique legal framework has underscored communal relations and has afforded extremist groups the space to carry out violations with impunity. ‘The lack of equal and objective enforcement of these laws (Penal Code and ICCPR Act) appears to be the crux of the issue. The problem is essentially an institutional one. It relates to the inability and reluctance of public officials including judicial and law enforcement officers to prevent and prosecute religious attacks and promote an overall climate of religious coexistence. This institutional incapacity and apathy are perhaps indicative of a systemic institutional subservience to the socio-cultural, economic, and political context that prevails over community relations in Sri Lanka’[7]. Sri Lanka has adequate laws to protect its citizens from hate speech and hate crimes, but the issue stems from enforcement of the law and political will to make it happen.

While a legal response is important, legislation is only part of a larger toolbox to respond to the challenges of hate speech. It is extremely important for public figures; the people in power, to clearly, act fairly and decisively to safeguard citizens’ fundamental rights and also unambiguously and publicly talk about the topic of hate crime and, in those utterances, to unequivocally express disapproval and criticism. This message has to reach the masses. Public activism is also politically essential in a society like ours, with such a long history of State level discrimination and intolerance.

Further, as the Annual report of the United Nations High Commissioner for Human Rights (2013) stated,‘Any related legislation should also be complemented by initiatives from various sectors of society geared towards a plurality of policies, practices, and measures nurturing social consciousness, tolerance and understanding change, and public discussion. This is with a view to creating and strengthening a culture of peace, tolerance, and mutual respect among individuals, public officials, and members of the judiciary, as well as rendering media organizations and religious/community leaders more ethically aware and socially responsible. States, media and society have a collective responsibility to ensure that acts of incitement to hatred are spoken out against and acted upon with the appropriate measures, in accordance with international human rights law’[8].

[1]https://law.anu.edu.au/event/seminar/sri-lanka%E2%80%99s-rule-law-crisis-patterns-impunity-immunity

[2]The international standards governing impunity are set forth in the United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, UN Doc. E/CN.4/2005/102/Add.1, (Updated Set of Principles to Combat Impunity)

[3]https://www.thestar.com/opinion/contributors/2018/03/07/sri-lankas-culture-of-impunity-leads-to-violence.html

[4]Gunatilleke, Gehan: The Chronic and the Acute:  Post-War Religious Violence in Sri Lanka by  International Centre for Ethnic Studies  &Equitas(2015)

[5]https://www.colombotelegraph.com/index.php/sri-lankas-legacies-of-nationalism-racism/

[6]https://rewire.news/article/2011/09/21/limits-free-speech-5/

[7]Gunatilleke, Gehan: The Chronic and the Acute:  Post-War Religious Violence in Sri Lanka by  International Centre for Ethnic Studies  &Equitas(2015)

[8]https://www.colombotelegraph.com/index.php/arent-penal-code-iccpr-act-adequate-to-tackle-corona-racism/

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