PTA provisions replicated Dangerous room for arbitrary arrests…

secret-camps-620x264BY Ruwan Laknath Jayakody

Lawyers criticize the two Anti-hate Speech Draft Bills presented in Parliament recently which seek to criminalize the instigation of communal violence and disharmony.

Chief Government Whip, Minister of Mass Media Gayantha Karunatilake presented two bills titled the ‘Code of Criminal Procedure (Amendment)’ and the ‘Penal Code (Amendment)’ which are yet to be taken up for debate.

The Bill, seeking to amend the Penal Code, states that “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 instigate acts of violence, or to create religious, racial or communal disharmony, or feelings of ill-will or hostility, between communities or different racial or religious groups, shall be punished with imprisonment of either description for a term not exceeding two years.”

The Bill to amend the Criminal Procedure Code seeks to introduce a two-year prison sentence for anyone guilty of “causing or instigating acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility by the use of words spoken, written or intended to be read, or by signs, or by visible representation or otherwise.”

As reported earlier, proposed amendments in the draft bills also stipulate that a warrant would not be required to arrest persons violating these laws.

20151131065036734_20Research Director and Head of Law at Verite Research, Gehan Gunatilleke said that this is extremely unfortunate as the new provision is basically identical to Section 2 (1) (h) of the Prevention of Terrorism Act (PTA) which mentions that “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”, when the Government had on one hand committed to repeal the PTA and were on the other hand replicating the PTA into ordinary law as a Section in the Penal Code.
“Journalist J.S. Tissainayagam was convicted on the basis of this provision in the PTA and charges against politician Azath Sally were framed on this provision in the PTA, though the latter was not indicted. Political opponents and dissenters could be targeted. This is a serious problem. The Attorney General’s Department should enforce existing laws. These new provisions are worsening the situation. Arresting without a warrant is a very serious issue,” he observed.

Chairperson of the Human Rights Commission of Sri Lanka, Dr. Deepika Udagama added that a loose and vague definition of hate speech would result in a very constricting environment in which no one will feel safe even speaking the truth”.
“The issue is to what extent hate speech is restricted. Incitement to violence must be drawn the line at. There are all forms of expressions. As this is a multi-ethnic and multi-religious society, if violence is caused, whoever is responsible must be dealt with under the law. This is the litmus test. The United States (US) with limited exceptions allows for almost absolute freedom of expression including speech. On the other hand, Sri Lanka has signed and ratified the International Covenant on Civil and Political Rights which calls for hate speech to be criminalized,” she said.

Attorney-at-Law Dr. Prathiba Mahanamahewa explained that certain words and actions, construed as being within the realm of hate speech, could in fact have been made in good faith and therefore it becomes necessary to prove real objectives in what is wrongly construed as being hate speech.
There is no definition given and since what has been presently put down is too broad, illustrations and examples as in the cases of defining theft or murder in the Penal Code should be specified, he said.

“In 2014, cases of religious violence along with the need for hate speech laws featured heavily in reports at the United Nations Human Rights Council. Someone can challenge these proposed laws in the Supreme Court as being potentially erosive of the freedom of expression. There are cases in the US and India (also involving social media like Facebook). Hate speech and the freedom of expression form a dichotomy.

How is the line drawn? Expressions against national harmony are not protected in the Constitution. Religious persons including reverends and priests could be arrested. Society’s reactions must be gauged too. What about online content and electronic media? Is this only for public speeches, offline private speeches and newspapers? Is the Computer Crimes Act No. 24 of 2007 going to be amended in parallel? The Government must clarify. Arresting without a warrant can also fall under arbitrary arrest,” he pointed out.