News
Govt backs away from bills claimed to bar free speech
View(s):The Attorney-General on Friday informed the Supreme Court that the State would not pursue two proposed bills that would make hate speech a criminal offence.
Special Additional Solicitor General Kapila Waidyaratne, appearing for the Attorney-General, conveyed this information when two petitions filed by a journalist were taken up for hearing before Justices B.P. Aluwihare, Upali Abeyratne and Anil Gooneratne.
Arun Arokianathan, Editor of the Tamil language newspaper Sudar Oli, filed petitions challenging the constitutionality the proposed “Penal Code (Amendment) Bill” and “Code of Criminal Procedure (Amendment) Bill” which seek to introduce a new provision (section 291C) to the Penal Code and to amend the Criminal Procedure Code Act.
M.A. Sumanthiran with Gehan Gunatilake and Niran Anketell appeared for the petitioner. Special Additional Solicitor-General Mr. Waidyaratne with Deputy Solicitor-General A. Navavi, Senior State Counsel Sutharshan de Silva and State Counsel H. Opatha appeared for the Attorney-General.
The petitioners did not support the petitions in view of the undertaking by the AG.
Mr. Arokianathan in his petitions stated the bill intended to insert a new section, 291C, into the Penal Code and that the legal effect of the section was “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 says: “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”.
Mr. Arokianathan said a 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 violence by Sinhalese readers against Tamils.
He also cited the case of Muslim politician Azath Salley, who was arrested and detained in relation to alleged offences under section 2(1)(h) of the PTA following his criticism of claimed government inaction in investigating acts of violence against Muslims.
Mr. Arokianathan said the inclusion of a near-identical provision (to section 2(1)(h) of the PTA) in the Penal Code would serve to infringe the freedom of speech and expression, including publication, particularly of members of the Tamil and Muslim communities.
He emphasised therefore, that the Supreme Court was 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 speech and expression that might cause “feelings of ill-will” between communities or different classes of persons or different racial or religious groups is “unconstitutionally over-broad”, he said.
He has sought a declaration from the Supreme Court that the bill titled “Penal Code (Amendment) Bill” and/or any one or more of its provisions was inconsistent with Articles 10 and 14(1)(a) of the Constitution and may therefore only be enacted by following the procedure laid down inArticle 83 of the Constitution.
There were altogether nine petitions filed by a spectrum of society. Manohara de Silva PC, appearing for four petitions, informed court that he supported the request for such a declaration.