93 Civil Society activists and 10 organisations have urged the government to fulfil its obligations to its citizens and its international obligations by withdrawing the bills (amendment to the Code of Criminal Procedure and amendment to the Penal Code ) forthwith and commit anew to fostering a political culture conducive to the exercise of citizens’ free speech rights.
The activists say that the new offence under the Penal Code is particularly problematic as it is a near verbatim reproduction of the language in Section 2(1) (h) of the Prevention of Terrorism Act (PTA). The offence as provided in the Bill is overbroad and general, and is not a permissible restriction in relation to freedom of expression guaranteed by the Constitution and by the International Covenant on Civil and Political Rights (ICCPR).
The Tamil National Alliance (TNA) too wanted the Government to withdraw the Penal Code and issued a statement. The TNA said;
The Tamil National Alliance is deeply concerned about the proposed Penal Code (Amendment) Bill placed on the Order Paper of Parliament on 11 December 2015. The said Bill was placed on the Order Paper by the Minister of Justice.
The Bill seeks to introduce a new provision (Section 291C) to the Penal Code, No. 11 of 1887. A further Bill seeking to amend the Criminal Procedure Code Act, No. 15 of 1979 was also placed on the Order Paper.
We observe that the proposed Section 291C is nearly identical to Section 2(1)(h) of the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA). The previous government used this very provision to target persons from the Tamil and Muslim communities and to deprive them of their freedom of speech and expression guaranteed under Article 14(1)(a) of the Constitution. We recall that Tamil journalist J.S. Tissainayagam was convicted by the High Court of Colombo and sentenced to 20 years rigorous imprisonment under Section 2(1)(h) of the PTA. We also recall that Muslim politician Azath Salley was arrested and detained under Section 2(1)(h) of the PTA. Both these persons were critical of the previous government’s policies, particularly with respect to the treatment of minority communities. These incidents and others like them prompted international condemnation of the previous government’s use of the PTA to suppress media freedom and dissent.
We therefore wish to state that we strongly oppose the Penal Code (Amendment) Bill on the grounds that it is inconsistent with Article 14(1)(a) of the Constitution, which guarantees to every citizen the fundamental right to freedom of speech and expression including publication.
The present government recently co-sponsored Resolution 30/1 adopted at the 30th session of United Nations Human Rights Council. Operative Paragraph 12 of the Resolution refers to the present government’s commitment: ‘to review and repeal the Prevention of Terrorism Act, and to replace it with anti-terrorism legislation in accordance with contemporary international best practices’. Section 291C of the Penal Code (Amendment) Bill directly contravenes this commitment.
We note that Sri Lanka is already compliant with international standards with respect to hate speech. Section 3(1) of the International Covenant on Civil and Political Rights (ICCPR) Act, No. 56 of 2007 provides: ‘No person shall propagate war or advocate national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.’ Section 3(1) of the ICCPR Act reproduces Article 20 of the ICCPR, and is therefore compliant with international standards. The High Court is vested with jurisdiction to try offenders under this Act. We also recall that the Sri Lankan Supreme Court, in its Advisory Opinion in S.C. Reference No. 1 of 2008, referred to Section 3 of the ICCPR Act in the context of ‘legislative compliance’ with Article 20 of ICCPR. Therefore, there is absolutely no need to introduce new legislation on hate speech.
We accordingly call on the Government of Sri Lanka to withdraw the Penal Code (Amendment) Bill forthwith.