CRIMINAL JUSTICE RESPONSE TO CRIME MOTIVATED BY
INTOLERANCE AND DISCRIMINATION
Waruna Jayasundara*

I. INTRODUCTION TO INTOLERANCE CRIMES IN SRI LANKA
Sri Lanka is an island situated in the Indian Ocean with a population of nearly 21.44 million which
comprises three main ethnic groups, namely Sinhala, Muslims and Tamils. The ethnic distribution of thecountry is 74.9 % Sinhalese, 15.7 % Tamils and 9.2 % Muslims. The Sinhalese history draws back more than2500 years, and later the Tamils migrated from the Southern parts of India. It is presumed that the Muslims
arrived during the last few centuries from the Arabian Gulf region as traders. At present there are no
intolerance crimes prevailing in Sri Lanka except for few incidences that occurred during the last few years.
In June 2014, a tense situation developed between the Sinhalese and Muslims in the Aluthgama area in theSouth Western part of Sri Lanka due to an issue involving a Muslim shopkeeper abusing a male Sinhaleseminor and, later, the assault of a Buddhist monk by three Muslim youths. As a result of the clashes between
the Sinhalese and Muslims, four were killed and many were wounded. It was reported that 8000 Muslims
and 2000 Sinhalese were displaced, and many shops, houses, mosques and factories were destroyed.
The most recent intolerance crime which was reported was from the Digana area which is situated in
the Central Province of Sri Lanka. In March 2018, a Sinhalese lorry driver was brutally assaulted and killedby drunken Muslim youths. It left many shops in the area damaged and burnt down by angry Sinhalese fromsurrounding villages. Other than the violence between Sinhalese and Muslims, there were isolated incidents
where Christian religious places were attacked. As per the National Christian Evangelical Association of Sri
Lanka (NCEASL), there were 52 incidents of religious violence against Christians or Christian places ofworship since January 20151.
A. History, Root Causes and Trends of Intolerance Crimes in Sri Lanka
A deep analysis into the reported intolerance crimes in Sri Lanka reflects that all incidences are connectedwith the Sri Lankan history starting with colonization, introduction of new religions and expansion of minority
settlements on the Island. In general, the majority Sinhalese are a peace-loving community deeply influenced
by the philosophy of Buddhism and guided by four sublime states of mind which are Love or Loving-kindness(metta), Compassion (karuna), Sympathetic Joy (mudita) and Equanimity (upekkha). Prior to colonization by
the Portuguese, Dutch and British, Sri Lanka was an agriculturally rich self-sustained Buddhist country. The
colonial masters destroyed the agricultural-based economy of Sri Lanka and adopted their policy of “Divide
and Rule”. This targeted policy side-lined the majority Buddhist Sinhalese and all comforts were rendered tominority Tamils and Muslims. The Buddhist religion and its religious places were systematically eliminated,
and Christianity was introduced by the Colonial masters. This intimidated the majority Buddhist Sinhalesecommunity which is all well connected to the present religious sentiments in Sri Lanka. Then the Arabic
Muslim traders who arrived in Sri Lanka expanded their settlements along the Southern and South Western
Coastal belt threatening the land ownership of majority Buddhist Sinhalese.
The present global trends such as the Islamic State (IS) and the “War on Terror” have aligned Sri Lanka
with the international community to fight against Islamic terrorist sentiments. This has also made an indirect
impact on the intolerance crimes committed against the minority Muslims in the country. As reported, theChristian pastors on the other hand keep spreading Christianity among the poorest in rural parts of Sri
Lanka, agitating the majority Buddhist Sinhalese. Therefore, an analysis of the above-noted historical factors,
root causes and current trends reveals that all are well connected with the isolated crimes motivated against
the minority religions due to intolerance and discrimination.

* Director in Charge, Counter Terrorism and Investigation Division, Sri Lanka Police, Sri Lanka.
1
Shamara Wettimuny, Religious violence in Sri Lanka: A new perspective on an old problem, http://www.ft.lk/article/617872/
Religious-violence-in-Sri-Lanka:-A-new-perspective-on-an-old-problem accessed on 20 October 2018.

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B. Nature and Types Intolerance Crimes in Sri Lanka
An analysis into the reported intolerance crimes in the country depicts that the majority are in the formof vandalism, theft, intimidation and do not constitute serious crimes such as murder, gang rape, robbery etc.
During the Aluthgama area incident in June 2014, which mainly targeted Muslims, 153 businesses and 23
houses were damaged. As further revealed, 207 houses were partially damaged, and 73 vehicles wereattacked. According to the police, some minor damages and thefts were also reported2. At the recently
reported Digana area incident in March 2018, 27 Muslim owned shops, businesses and several houses were
set on fire3. In cases involving attacks on Christian installations, threats, intimidation and ‘administrative
restrictions’ have been used against them. There was no serious physical harm committed against theChristian pastors and followers in recent times. An analysis reveals that the hidden motives behind most of
the violent acts against Christian movements were mainly due to the opposition against their religious
conversions.

II. LEGISLATIVE APPROACHES AGAINST INTOLERANCE CRIMESThe earlier legislative approach against the intolerance crimes in Sri Lanka was to exhaust the legal
provisions contained in the Penal Code of Sri Lanka, which was enacted in 1883. The offences relating to
religion are stated from section 290 to 292 of the Penal Code, and in cases of more serious intolerance crimes,
such as murder, rape and robbery, are also covered under the same code. Section 290 is relevant to “injuring
or defiling a place of worship with intent to insult the religion of any class”, which carries a punishment of
imprisonment of either description for a period up to two years with fine or with both. Section 291 describes“disturbing a religious assembly”, which carries a prison term up to one year. Section 291 A deals with“uttering words with deliberate intent to wound religious feelings”, which consists of a prison term extended
up to one year. Section 79(2) of the Police Ordinance of Sri Lanka also provides space for thwarting hatespeech indirectly when it says that “Any person who in any public place or at any public meeting uses
threatening, abusive or insulting words or behaviour which is intended to provoke a breach of the peace or
whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence under this section.” Thelegal structure which deals with these offences commences with police investigations and reporting facts tothe courts followed by filling charges through the plaint.
An analysis on the above-noted legislative approaches on intolerance crimes reveals that their scope andpunishments are very much limited and does not cover sensitive and well-orchestrated intolerance anddiscriminatory crimes. Therefore, the enactment of the International Covenant on Civil and Political Rights(ICCPR) Act in 2007 was an effective legal approach compared to earlier initiatives. Section 3 of theInternational Covenant on Civil and Political Rights (ICCPR) Act of 2007 reproduced Article 20 of the ICCPR
and prohibits the advocacy of ‘religious hatred that constitutes incitement to discrimination, hostility or
violence’. It also gives the High Court jurisdiction to try and punish offenders. This initiative consists of theseparate offence approach and the penalty enhancement approach. Earlier the intolerance crimes were also
included within the general Penal Code along with all other crimes, and the penalties were not adequate
enough to address the gravity of the problem. However, the present ICCPR Act No 56 of 2007 is separate
legislation orchestrated specifically to address the intolerance crimes and carries severe punishment.
However, human rights defenders criticized its lack of enforcement against hate speech when it is alreadyencrypted within the existing ICCPR Act of 20074.

III. EFFECTIVE MEASURES ADOPTED TO INVESTIGATE, PROSECUTE AND
ADJUDICATE INTOLERANSE CRIMES
A. Types of Useful Evidence Required to Prove Intolerance Motive
The most important aspect in an investigation involving an intolerance crime is to gather the crucial
evidence connected to the intention of committing the intolerance crime and its physical components. The
intention of an ordinary crime may be due to personal hatreds, sudden provocation, rivalry etc. However,2

Waruni Karunarathne, Economic Cost Of The Aluthgama Incident, http://www.thesundayleader.lk/2014/06/29/economiccost-of-the-aluthgama-incident/ accessed on 20 October 2018.
3
Financial Times, Digana turns divisive, <www.ft.lk>, accessed on 20 October 2018.
4
Gehan Gunatilleke, Hate Speech in Sri Lanka: How a New Ban Could Perpetuate Impunity, < http://ohrh.law.ox.ac.uk/hatespeech-in-sri-lanka-how-a-new-ban-could-perpetuate-impunity/> accessed on 20 October 2018.

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VISITING EXPERTSʼ PAPERS
the intolerance crimes are intended or motivated mainly by ethnicity, religion, race and tend to be violent innature such as assault, intimidation, vandalism etc.
In an effective investigation of an intolerance crime, it is important to gather evidence pertaining totelephone interceptions, emails, social media, public speeches and interviews which led to the commission ofcrimes. It is also ideal to assign a separate group of investigators with specialists such as IT experts, digitalforensic experts, and lawyers to investigate intolerance crimes.
B. Measures to Encourage Victims and Witnesses to Report and Cooperate with Criminal Justice
Authorities
In Sri Lanka the victims and witnesses are reluctant to report and cooperate with criminal justiceauthorities due to various reasons.
The main reason is the majority of the population has lost theirconfidence in the criminal justice system. The police have somewhat lost public confidence and have been
criticized by the media and general public for their short comings. The judiciary system on the other handmanaged to keep its credibility, but the conclusions of its cases are sometimes time consuming. Therefore,
it is high time for all concerned parties in Sri Lanka to rebuild the lost confidence on the criminal justicesystem and to encourage victims and witnesses to corporate with criminal justice authorities, especially incases involving intolerance crimes. The following are some of the measures that can be taken in this regard:
1.

Witness Protection Measures
It is worthwhile to note that Sri Lanka has introduced the Protection of Victims of Crime and Witnesses
Act, No. 04 of 2015 which provides for the establishment of the National Authority for the Protection ofVictims of Crime and Witnesses. The main objective of this Act is to strengthen the course of administrationof justice by identifying a proper legal framework to protect the rights of the victims of crime and witnesses.
In cases involving intolerance crimes, it is of paramount importance to protect the victims and witnesses ofcrimes since the majority of such crimes are committed by the majority of the population or the parties in
power. In reality, there are no known cases where the provisions of victim protection act have been adopted
to safeguard the victims of intolerance crimes in Sri Lanka.
2.

Adequate Assistance for Victims and Their Communities
The cost of litigation in Sri Lanka has significantly increased during recent times, and it has become
impossible for an average citizen to retain a highly competent legal representation. Therefore, in cases
where the affluent are involved with committing intolerance crimes, the minority victims and witnesses arelack proper legal assistance. Therefore, it is of paramount importance to provide adequate assistance forvictims and their communities. It is commendable to note that the Legal Aid Commission of Sri Lanka is
playing a vital role in providing legal assistance for victims of crimes.
3.

Measures Adopted to Strengthen the Security of the Victims of Crimes
It is worthwhile to note that the Sri Lanka Police established a separate Victims Protection Divisionin 2017 to address the protection issues of the victims of crimes. Therefore, any victim who has been
threatened or intimidated in intolerance cases can make a complaint and seek assistance of the respective
Police Division. However, it is recommended to improve and establish a mechanism to protect the victims
from identification.
4.

Measures to Strengthen the Mutual Trust and Relationship among Opposing Parties
In Sri Lanka a majority of Sinhalese are against the intolerance crimes and are living harmoniously withthe two other communities. It is only a selective group of people who are creating tense and uncomfortablesituations whenever there is a minor incident involving a minority ethnic group. Therefore, it is important
to strengthen the mutual trust and religious harmony among the three ethnic groups in Sri Lanka to preventthe reoccurrence of intolerance crimes which have taken place in Aluthgama (2014) and Digana (2018) areas
causing immense property damages.

IV. EFFECTIVE TREATMENT OF OFFENDERS OF INTOLARANCECRIMES INCLUDING DELIVERING PROPER INTERVENTIONSThere are few offenders who are still in remand custody for causing intolerance crimes in the Kandy area
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from the High Court. The offenders in the Aluthgama incident in June 2014 were released from remandcustody, and now some of them are facing trial. It is not clear whether authorities have taken due care for
effectively treating the offenders of the above noted two incidents. Further evidence of proper intervention
to correct the bias and discriminatory motives of the perpetrators were not documented as required.
Therefore, it is high time for all relevant parties to have timely interventions and initiate effective treatment
mechanisms for offenders of intolerance crimes.

V. CONCLUSION
As elaborated above, Sri Lankan authorities should overcome shortcomings and have a proper andeffective criminal justice response mechanism to address the intolerance crimes in its journey towards
making Sri Lanka the “Wonder of Asia”.

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