A/HRC/43/48/Add.2 or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups shall be guilty of an offence under this Act. 72. There have been no reported judgments or trials concluded under the International Covenant on Civil and Political Rights Act, while there have been several instances of hate speech and incitement to violence that could have been dealt with under the Act. More controversially, civil society has observed that certain actors have attempted to misuse the Act to restrict freedom of expression and crush dissent. Although incitement to discrimination, hostility and violence is criminalized under the Act, many argued that the Act was not applied in a manner that would protect minorities against incitement; rather, it was invoked to protect religions or beliefs against criticism or perceived insult. 49 The Act has ironically become a repressive tool used for curtailing freedom of thought or opinion, conscience, and religion or belief. 73. It is also worth noting that the present International Covenant on Civil and Political Rights Act is not fully compatible with article 19 of the International Covenant on Civil and Political Rights as it does not guarantee freedom of expression. Moreover, when determining cases of hate speech, current provisions of the Act do not include the three-part test of legality, proportionality and necessity or the threshold of “incitement” under article 20 of the Covenant. 74. Similarly, under the Penal Code, there is a lack of reported judgments under the provisions contained in sections 120, 291A and 291B. Moreover, these provisions lack clarity and leave room for misinterpretation. Meanwhile, the Prevention of Terrorism Act has been criticized by many for being used to target minorities, critics of longstanding Governments, journalists and political opponents. This was demonstrated in a prominent case involving a journalist in 2008, 50 a case involving a politician in 2013 51 and a case involving a Muslim doctor in 2019.52 The Act was also used to target Muslims arrested under suspicion of terrorism after the Easter bombings. The offences described in section 2 (1) (h) of the Act are overly broad and ambiguous, leaving no legal certainty as to how an offence is interpreted. While the Penal Code would require revision to bring it into line with international human rights standards, the Prevention of Terrorism Act should be repealed as recommended by various human rights mechanisms and United Nations experts. 75. Section 79 (2) of the Police Ordinance (No. 16 of 1865) provides that the police have the power to arrest a person without a warrant when any person in a public place or meeting uses “threatening, abusive or insulting words or behaviour intending to provoke a breach of the peace or where the breach of the peace is likely to be occasioned”. Although the Ordinance does not deal with hate speech directly, the police are granted the power to control and contain situations in which they see threats of incitement to violence. In the instances of Aluthgama and Digana, the police were accused of not taking action to prevent the hate campaigns. Moreover, there were reports of the active participation by police officers in having aided anti-Muslim riots in the past, though these reports have not been investigated. 76. There is no legislation in Sri Lanka regulating the media and its role. There is, however, the Code of Professional Practice (Code of Ethics) of the Editors Guild of Sri Lanka of 2008,53 which is meant both to protect the right of the individual and to uphold the public’s right to know. In particular, article 6 (3) states that a journalist shall not knowingly or wilfully promote communal or religious discord or violence. Article 6 (4) also stresses that the press must avoid prejudicial or pejorative reference to, and publishing details of, a person’s race, colour, religion, sex, sexual orientation or any physical or mental illness or disability. 77. While all hate speech should be rejected, the likelihood of such speech causing actual violence can depend on various contexts. A combination of impunity, privilege, scapegoating and exclusion can form a tinderbox of hatred. Any speech that reaches the 49 50 51 52 53 See, for example, the Sathkumara case at www.ft.lk/news/UN-human-rights-petition-filed-for-authorShakthika-Sathkumara/56-691332. See https://rsf.org/en/news/international-press-freedom-groups-call-justice-jailed-sri-lankan-journalist. See www.thesundayleader.lk/2013/05/05/azath-salleys-arrest/. See www.republicnext.com/series/dr-shafi-case/. See www.tamilnet.com/img/publish/2019/03/PCCSL_Code_in_English.pdf. 15