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Sri Lanka’s Use of the Rabat Plan of Action in the ICCPR Act

In Sri Lanka’s legal journey, the Rabat Plan of Action rings like a clear signal, urging us to be steady and clear. As the country faces the challenge of keeping both freedom of speech and stopping harmful hate speech, what happened in Nathasha Edirisooriya’s case becomes really important. It’s like a turning point that shows us a new direction.

In Sri Lanka, the International Covenant on Civil and Political Rights (ICCPR) Act, originally designed to protect  fundamental rights, has metamorphosed into a tool that sometimes seems to infringe upon the very liberties it’s meant to defend. The recent case of comedian Nathasha Edirisooriya has catapulted these tensions into the public eye, prompting a closer look at the intricate interplay between safeguarding individual rights and curbing potential incitement to violence.

Peeling Back the Layers: The ICCPR Act Dilemma
The ICCPR Act, a legislative embodiment of the ICCPR, has been both a beacon of hope and a source of controversy within Sri Lanka. Intending to shield citizens from human rights abuses, it has paradoxically been employed against journalists, minority groups, and activists, raising the question of whether it can truly protect individual rights while also ensuring social harmony.

Enter Nathasha Edirisooriya, a comedian who found herself at the heart of a legal storm. Arrested under the ICCPR Act for alleged derogatory comments about Buddhism, her case epitomizes the grey area between freedom of expression and hate speech. The subsequent legal battle and the Colombo High Court’s reliance on the Rabat Plan of Action thrust the conversation into a new dimension, exploring how hate speech and incitement can be understood within the context of freedom of expression.

The Rabat Plan of Action: A Compass for Legal Clarity
Crafted in 2012 by the UN Office of the High Commissioner for Human Rights, the Rabat Plan of Action serves as a guide for understanding the limits of state responsibilities under Article 20 of the ICCPR. It’s a roadmap for distinguishing between expression that’s protected and that which infringes on the rights of others. This plan offers a comprehensive six-part threshold test, taking into account critical factors like the intention of the speaker, the context, and the potential harm caused by the speech.

In Sri Lanka, the Human Rights Commission recognizes Section 3 of the ICCPR Act No. 56 of 2007 as a vital legal framework to tackle hate crimes. Yet, the absence of a definitive local jurisprudence has led the Commission to draw insights from Article 20 of the ICCPR—the parent article to which Section 3 of the ICCPR Act imparts domestic effect. The pivotal components of Article 20 (2) are two-fold: the advocacy of national, racial, or religious hatred, and the incitement to discrimination, hostility, or violence.

One fundamental aspect to consider is that Article 20 should be read in conjunction with Article 19 of the ICCPR, which champions the right to freedom of expression. This interplay underscores the compatibility between the two articles. The ICCPR General Comment No. 111 highlights this harmony, asserting that the prohibition required by Article 20 is in alignment with the freedom of expression protected by Article 19.

The Rabat Plan of Action, born out of a four-year initiative by the UNOHCHR, introduces a six-part threshold test to ascertain whether advocacy crosses into the realm of incitement. This test, crafted through expert workshops, provides an analytical framework for evaluating the forms of advocacy that constitute incitement under Article 20. It embraces elements like the context surrounding the speech, the speaker’s authority, and the speaker’s intent.

Among the key elements of the threshold test, intent takes centre stage. It’s not enough for the speech to merely advocate hatred; there must be a deliberate intent to incite discrimination, hostility, or violence. The context in which the speech occurs also plays a pivotal role. If the speaker wields authority or influence over the audience, their words carry more weight. The concept of imminent harm comes into play, signifying that the likelihood of incitement causing immediate harm should be reasonable.

The Colombo High Court’s acknowledgement of the Rabat Plan of Action during Edirisooriya’s case elevated the legal discourse in Sri Lanka. The court’s analysis spotlighted the fact that hate speech must pose an immediate threat of hostility or violence to be deemed actionable.

While this landmark case showcased the potential of applying the Rabat framework in the nation’s courts, the burning question remains—will this approach find consistent footing when the next case involving hate speech emerges? To ensure the lasting impact of such a progressive approach, a concerted effort must be made to educate legal practitioners, judges, and the public about the nuances of the Rabat Plan.

In this narrative, society stands as a pivotal character—a collective consciousness that needs nurturing. Encouraging dialogue, diversity of thought, and an ethos of empathy can be instrumental in bridging the gap between these dualistic rights.

Only by fostering a deep understanding and unwavering commitment can we truly kindle the flame of change, igniting a future where the boundaries of free expression and hate speech are navigated with precision and compassion. As judges wield their gavels, they must bear in mind that hate speech, while offensive, does not necessarily warrant legal action unless it poses a credible threat of hostility or violence. This sophisticated balance will not only protect freedom of expression but also maintain the social fabric that is a hallmark of Sri Lankan identity.