Laws of the state are a double-edged sword, and we are often oblivious of its danger. We have profound faith in the legal instrument to ensure the protection of the citizens, while maintaining social order. Resultantly, the enactment of laws seems to be the common and legitimate first-stage response of the state in attempting to curb various social anomalies, inter alia militancy and extremism of any nature. Yet seldom do we realise that the very law implemented to bring forth social order and harmony can backfire and wreck more havoc to the society if abused and misused by ill-motivated individuals.
In the wake of rising racial and religious tensions in the country, Minister of National Languages and Social Integration Vasudeva Nanayakkara expressed his resolve to submit a Cabinet proposal to ban hate language that can potentially incite communal disharmony. Nanayakkara claims that the intention of this move is to make hate speech an offence under the Penal Code of the country. Consequently, those who use ‘inflammatory’ language that could incite ethnic or religious hatred could be prosecuted and punished according to the rule of law. This attempt to alleviate the deteriorating status quo is certainly commendable, and is indeed the need of the hour. Similarly, prominent scholars in the post-war period have suggested an introduction of an anti-sedition act and harmony laws to foster national reconciliation among the different ethnic communities in Sri Lanka. While the intentions are justifiable, it is imperative to critically examine the potential setbacks of such moves.
The objective of this article is not to delve into a legal cum socio-political debate as to what exactly constitutes a hate-speech, and what should or should not be included in the amended Penal Code. Further, this is not to assess the feasibility of the hate-speech ban under the current rule of law in this country. Such pertinent issues beg for a separate discussion altogether. Instead, this article aims to shed light on the alarming reality that the enactment of such laws - although promulgated in good faith - also incurs the risk of the laws backfiring if abused by ill-intentioned parties. How can the state and the society ensure that these laws would not be politically misused to further suppress the minorities or to settle scores on personal disputes?
For instance, blasphemy laws in Pakistan and Lese Majeste laws in Thailand have become a centre of political controversy in the recent years. They are allegedly being exploited to oppress dissidents, further harass the minority communities, and in some cases to avenge personal conflicts. These laws were supposedly implemented in the name of maintaining harmony and order in the country. However, laws can equally become a source of harassment and oppression rather than promoting social harmony. This is the double edged sword we must be aware of. What guarantee do we have that the laws of the like in Sri Lanka will not tread the fate of those of Pakistan and Thailand? We cannot afford to dismiss the potential backfiring of anti-hate laws, given that they provide a legal framework for individuals to harass the minority, the vulnerable, and the foe. Unfortunately, there is a black sheep in every society who will attempt to exploit the law to further his or her malicious personal agendas.
There is no doubt that the enactment of anti-hate laws is a necessary step in tackling the challenges which face the Sri Lankan society today. This is not to question the effectiveness of a legal deterrent in curbing the rising religious and racial tensions in the country. At the same time, being aware of the potential setback is equally crucial for a meaningful implementation of such laws. One need not be a legal expert to comprehend the dangers of a double-edged sword. Thus, this new legal initiative must be accompanied by other necessary and sustainable means to fulfil its real objectives. This requires a joint effort by the public and the state. The general public should be well-informed of the objectives, sensitivities, and the challenges pertaining to criminalising hate language. Simultaneously, the law enforcement apparatus must first outline and then pursue a systematic mechanism to practically implement and enforce the legal framework fairly and objectively at all realms.
Amending laws is futile without comprehensive efforts to ensure that they do not backfire to wreck more havoc to the society. While the misuse of anti-hate laws may not be entirely preventable, it is indeed possible to mitigate the effects and deter the black sheep that choose to exploit the law. Let this become an opportunity for Sri Lanka to foster genuine harmony among the different communities by ensuring that the new Cabinet proposal does not become a source of controversy and hate in the future.
The writer is a PhD Candidate and a Researcher at the Centre for Transnational Crime Prevention (CTCP), University of Wollongong, Australia