Bills criminalising “Hate Speech”: AG in SC undertakes not to pursue

By S. S. Selvanayagam

The Attorney General yesterday (18) gave undertakings in the Supreme Court that the State would not pursue with the two Bills at present which criminalise “Hate Speech.”

Special Additional Solicitor General Kapila Waidyaratne appearing for the Attorney General notified it to Court when two petitions filed by a journalist were initially taken up.

The Bench comprised Justices B. P. Aluwihare, Upaly Abeyrathne and Anil Gooneratne.

M. A. Sumanthiran, appearing for the journalist, submitted to Court that the determination is to be communicated within three weeks and that the substantial Clause in the Penal Code is the only matter.

He suggested to Court that the Court should communicate its determination to the Speaker and the President as well.

In contrast, the Special Additional Solicitor General submitted that it is not a determination but is only a communication.

Petitioner Arun Arokianathan, the Editor of Tamil language newspaper ‘Sudar Oli,’  filed his petitions challenging the constitutionality of Bills titled ‘Penal Code (Amendment) Bill’ and ‘Code of Criminal Procedure (Amendment) Bill’ which sought 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.

M. A. Sumanthiran, with Gehan Gunatilake and Niran Anketell, appeared for the Petitioner. Special Additional Solicitor General Kapila Waidyaratne with Deputy Solicitor General A. Navavi, Senior State Counsel Sutharshan de Silva and State Counsel H. Opatha appeared for the Attorney General.

There were altogether nine petitions filed by a spectrum of society. Manohara de Silva PC appearing for four petitions informed Court that they are amenable for the same order.

Viran Corea with L. Ganeshathasan instructed by Moahan Balendra, appeared for Centre for Policy Alternatives. Other petitioners are Ven. Medagama Dhammananda Thero of Asgiriya, Transparency International Chairman Jagath Solomon Dias, Founder of Swarnahansa Foundation Gallege Punyawaddena, Executive Committee member of Movement for Equal Rights Jude Silva Pulle, Joint Secretary of Ceylon Trade Union A. D. Sumanatilake, Nuwan Bopaya and Lakshan Dias

Petitioner Arun Arokianathan in his petitions stated 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.

He stated 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’.

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

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

He cited 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 cited 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 stated 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 and Muslim communities.

The Petitioner contended 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 recognized 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 stated 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 brought to 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 emphasised, therefore, 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 provisions 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 stated.

He has sought 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.