HRCSL issues guidelines on application of hate speech law
September 24, 2019
The Human Rights Commission of Sri Lanka (HRCSL) has issued guidelines to the Attorney General and the Police on the application of the hate speech law.
In a letter to the Attorney General and the Police, the HRCSL says that the enforcement of section 3 of the ICCPR Act has not been done in a consistent and an even-handed manner, and sees the need for greater clarity on the legal scope of the offence recognised by the said provision.
Full text of the guidelines: The Human Rights Commission of Sri Lanka considers Section 3 of the International Covenant On Civil and Political Rights Act No.56 of 2007 (ICCPR Act) as a significant legal framework to address hate crimes. As there is no authoritative Sri Lankan jurisprudence on Section 3 of the ICCPR Act, the Commission has drawn from the discussion surrounding Article 20 of the International Covenant on Civil and Political Rights (the Covenant) i.e. the original Article to which Section 3 of the ICCPR Act gives domestic effect, in order to understand its scope and application. The Commission presents its observations below:
Part 1. International Jurisprudence on Article 20 of the Covenant
Article 20 of the Covenant reads as follows:
(1) Any propaganda for war shall be prohibited by law.
(2) Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
1.1 The relevance of Freedom of Expression
It is recognized by the UN Human Rights Committee i.e. the independent expert body which oversees the implementation of the Covenant (UNHRC) that Article 20 should be read in conjunction with Article 19 of the Covenant which recognizes Freedom of Expression. For example in the ICCPR General Comment No. 11 it is observed that the prohibition required by Article 20 is compatible with the Freedom of Expression guaranteed under Article 19. Further, in Ross v Canada it has been held by the UNHRC that restrictions under Article 20 should be permissible under Article 19 as well.
1.2 Elements of the Article 20 Offence
The Commission observes that the aforementioned offence under Article 20 (2) embodies two significant elements:
- i) Advocacy of national, racial or religious hatred; and
- ii) Incitement to discrimination, hostility or violence
The offence under Article 20 must firstly comprise advocacy of national, racial or religious hatred. Such advocacy must also constitute an incitement to discrimination, hostility or violence. One element without the other is insufficient to establish liability.
1.2.1 Proving Advocacy and Incitement
The Covenant does not define the term ‘advocacy’.
The Rabat Plan of Action, which is the outcome of a four year initiative by the UN Office of the High Commissioner for Human Rights (OHCHR) to clarify the scope of state obligations under Article 20 of the Covenant, contains a six-part threshold test that has been developed by the attendees of a series of expert workshops on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence in order to determine the forms of advocacy that constitute incitement that fall within the scope of Article 20.