Freedom of expression may be subject to restrictions or penalties as prescribed by law and necessary in a democratic society — Hafiz Hassan

MARCH 9 — More than 2 years ago, in There is no freedom to insult I shared the case of ES v Austria, a 2018 judgement of the European Court of Human Rights (ECtHR), which upheld the restrictions in Article 10(2) of the European Convention of Human Right (ECHR) on freedom of expression. https://www.malaymail.com/news/what-you-think/2022/08/01/there-is-no-freedom-to-insult-hafiz-hassan/20347

Article 10(1) ECHR guarantees the right to freedom of expression. This right “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

Article 188 (on disparagement of religious doctrines) criminalises any “behaviour [that] is likely to arouse justified indignation, [that] publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community.” — Picture by Yusof Mat Isa

Article 10(2) ECHR, however, restricts the right as follows:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10 ECHR may be compared with Article 10 of the Federal Constitution (FC) on freedom of speech. Article 10(1)(a) FC guarantees the right to freedom of speech and expression, subject to Clause (2)(a).

Clause (2)(a) says Parliament may by law impose “such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality”.

In ES v Austria, an Austrian was convicted by the Vienna Regional Court of disparaging religious doctrines pursuant to Article 188 of the Austrian Criminal Code.

Article 188 (on disparagement of religious doctrines) criminalises any “behaviour [that] is likely to arouse justified indignation, [that] publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community”.

The Article may be compared with Section 298 of the Penal Code (on uttering words, etc., with deliberate intent to wound the religious feelings of any person).The section criminalises the uttering of words or the making of gestures with the deliberate intention of wounding the religious feelings of any person.

Both Article 188 and Section 298 are restrictions on freedoms of expression that are prescribed by law.

In ES v Austria, the conviction was upheld on appeal to the Vienna Court of Appeal. On further appeal, the Austrian Supreme Court ruled that the criminal conviction constituted a measure necessary in a democratic society within the meaning of Article 10 ECHR.

The convict complained to the ECtHR that her right to freedom of expression under Article 10 had been infringed.

The ECtHR ruled as follows:

“[This] Court finds that … the domestic courts [had] carefully balanced [the] right to freedom of expression with the rights of others to have their religious feelings protected and to have religious peace preserved in Austrian society. They discussed the permissible limits of criticism of religious doctrines … [and] came to the conclusion that the facts at issue contained elements of incitement to religious intolerance.

“[This] Court … finds that the interference with the [convict’s] rights under Article 10 did indeed correspond to a pressing social need and was proportionate to the legitimate aim pursued.

“Therefore, [this] Court considers that the domestic courts did not overstep … when convicting the [convict] of disparaging religious doctrines. Accordingly, there has been no violation of Article 10 of the Convention.”

In the application by Mentega Terbang filmmakers’ to refer two constitutional questions on the charges of wounding religious feelings under Section 298 of the Penal Code, the learned High Court judge has ruled that Section 298 is valid and constitutional and to remain in force under Article 162 FC.

The two questions before the court are whether or not Section 298 of the Penal Code violates Article 10(1)(a) FC, which protects freedom of speech; and whether or not the phrase “wounding the religious feelings of any person”, an element in the offence, violates the rights to a fair trial as the phrase is ambiguous and thus contravenes Articles 5 and 8 FC.

As reported, Justice K. Muniandy ruled that the efficacy of Section 298 of the Panel Code blends well with the Malaysian populace, which is multiracial and multireligious.

“[P]reserving sensitivities of the populace, their race and religion is quintessential. The expression ‘public order’ is not defined anywhere but danger to human life and safety and the disturbance of public tranquillity must necessarily fall within the purview of the expression,” the learned judge said, adding that Section 298 of the Penal Code was a pre-independence law pursuant to Article 160 (2) FC and it shall continue to be in force.

The learned judge also said that Parliament is entitled in law to impose restrictions on the right to freedom of speech and expression in the interest of public order or morality under Article 10 (2)(a) FC.

Clearly, the learned judge’s rulings are consistent with the principle that the exercise of the right to freedom of expression carries with it duties and responsibilities.

The freedom may be subject to restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, and for the protection of the reputation or rights of others.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.