Bills criminalising “Hate Speech” to be challenged in SC today

By S.S.Selvanayagam

 Petitions challenging the Bills commonly described as “Hate Speech Bills” are to be supported before the Supreme Court today (18) before the Bench comprising Justices B.P.Aluwihare, Upali Abeyrathne and Anil Gooneratne.

The petitions challenges the constitutionality of the Bills titled ‘Penal Code (Amendment) Bill’ and ‘Code of Criminal Procedure (Amendment) Bill’ placed on the Order Paper.

 The Bills seek to introduce a new provision (Section 291C) to the Penal Code, No. 11 of 1887and to amend the Criminal Procedure Code Act, No. 15 of 1979. 

One petition is filed by Arun Arokianathan,the Editor of the Tamil language newspaper ‘Sudar Oli’ for the special determination of the Supreme Court. M.A.Sumanthiran appears for the petitioner who has cited the Attorney General as respondent.

 The petitioner states that the impugned Bill intends to insert a new section 291C into the Penal Code and that the legal effect of the said section is purportedly ‘to make provision to convict and punish persons who cause or instigate acts of violence or hostility which lead to religious, racial or communal disharmony between different racial or religious groups.’ 

The proposed section 291C provides: Whoever, by the use of words spoken, written or intended to be read, or by signs, or by visible representation, or otherwise, intends to cause or attempts to cause or instigates or attempts to instigate, acts of violence or religious, racial or communal disharmony, or feelings of ill-will or hostility, between communities or different classes of persons or different racial or religious groups, shall be punished with imprisonment of either description for a term which may extend to two years. 

The Petitioner states a separate Bill titled ‘Code of Criminal Procedure (Amendment) Bill’ seeks to amend section 135 of the Code of Criminal Procedure Act, No. 15 of 1979 by including section 291C of the Penal Code in paragraph (e) of subsection (1) thereof, and the legal effect of the section, as amended, is ‘to make the Attorney General’s sanction a pre-requisite to take cognisance of an offence punishable under section 291C’.

 The Petitioner respectfully draws the attention of the Court to section 2(1)(h) of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA). Section 2(1)(h) which provides: [Any person who] by words either spoken or intended to be read or by signs or by visible representations or otherwise causes or intends to cause commission of acts of violence or religious, racial 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].

 He points out that the said section 2(1)(h) of the PTA is nearly identical to the proposed section 291C of the Penal Code.

 He laments the aforesaid section 2(1)(h) of the PTA was specifically invoked to target members of the Tamil and Muslim communities. 

He cites that Tamil journalist, J.S. Tissainayagam was convicted under section 2(1)(h) of the PTA for accusing a predominantly Sinhalese army of committing atrocities against Tamil civilians, and thereby allegedly intending to incite acts of violence by Sinhalese readers against Tamils.

 He also cites that Muslim politician, Azath Salley was arrested and detained in relation to alleged offences under section 2(1)(h) of the PTA following his criticism of the government’s inaction on investigating acts of violence against Muslims.

 The Petitioner apprehends the inclusion of a near identical provision (to section 2(1)(h) of the PTA) in the Penal Code will invariably serve to infringe the freedom of speech and expression, including publication, particularly of members of the Tamil anad Muslim communities.

 The Petitioner contends the proposed section 291C of the Penal Code does not qualify as a ground for restricting rights under Article 14(1)(a), as permitted by Article 15(7) of the Constitution. Article 15(7) states: The exercise and operation of all the fundamental rights declared and recognised by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society. 

He states the manifest object of the Penal Code (Amendment) Bill is to ‘make provision to convict and punish persons who cause or instigate acts of violence or hostility which lead to religious, racial or communal disharmony between different racial or religious groups.’ And underscores however, the current law of Sri Lanka adequately meets this objective while complying with international standards.

 He brings to the cognisance that at the time of the PTA’s enactment as an Urgent Bill in 1979, the Supreme Court was not called upon to make a determination on the consistency of section 2(1)(h) of the PTA with the Fundamental Rights Chapter of the Constitution, as the Bill was to be passed by a two-thirds majority in Parliament.

 He emphasises therefore that the Supreme Court is not precluded from holding that the proposed section 291C of the Penal Code is inconsistent with Article 14(1)(a) of the Constitution, notwithstanding the fact that near identical provision are already contained in the PTA. 

Imposing a restriction on forms of speech and expression that may cause ‘feelings of ill-will’ between communities or different classes of persons or different racial or religious groups is unconstitutionally overbroad, he states. 

He is seeking a declaration from the Court that the said Bill titled ‘Penal Code (Amendment) Bill’ and/or any one or more of its provisions as being inconsistent with Articles 10 and 14(1)(a) of the Constitution, and therefore may only be enacted by following the procedure laid down in Article 83 of the Constitution.