Human Rights Commission of Sri Lanka has written to the Government of Sri Lanka advising to that the Government withdraw the proposed amendment to the penal Code.

In a letter sent to the Prime Minister, the HRC recommended that the government should substitute the amendments with the relevant provision of the International Covenant on Civil and Political Rights (ICCPR) Act No. 57 of 2007.

The formulation in the ICCPR Act is in accordance with Sri Lanka’s international human rights obligations on free speech and permits prosecution only when there is proof of incitement, the HRC also maintained.

The letter sent by the HRC to the PM:

Hon. Prime Minister,

Proposed Amendment to the penal Code on Hate Speech

As you are aware, a primary function of the Human Rights Comrnission of Sri Lanka is to advise the Government on making laws and procedures in accordance with fundamental rights and international human rights norms and standards (s. L0 (c ) and (d) of nncsl Act, No. 21 of 1996).

It has come to the attention of the Human Rights Commission of Sri Lanka that the Government of Sri Lanka intends to table a legislative Bill in Parliament in the near future to criminalize hate speech through an amendment to the Penal Code. While ensuring harmony among the various communities is a vital function of a democratic State, the Commission’s concerns stem from 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 Righis.

We would be pleased to be of further assistance in this regard.

Signed by

Dr. N. D. Udagama

Chairperson

Human Rights Comrnission of Sri Lanka