22 Apr 14 | India, News and features, Politics and Society
Gujarat Chief Minister and BJP prime ministerial candidate Narendra Modi filed his nomination papers from Vadodara Lok Sabha seat amid tight security on April 6. (Photo: Nisarg Lakhmani / Demotix)
Electioneering for the Indian elections of 2014 has reached a fever pitch. Never before in the history of modern India has it seemed likely that the country is ready to cut its cord with the Congress Party’s Gandhi family, and never before has its chief opposition party, the Bharatiya Janta Party (BJP) been projected as the sole inheritance of one man – Narendra Modi.
The “greatest show on Earth” – the Indian elections – is underway. There are 37 days of polling across 9 states, with a 814 million strong electorate, and more than 500 political parties to choose from. The hoardings all seem to scream the “development” agenda, but unfortunately in India, this conversation seems to be skating on thin ice. Cracks quickly appear, and beneath the surface, political parties seem to be indulging in the same hate speech, communal politicking and calculations that work to polarise the electorate and garner votes.
Hate speech in India is monitored by a number of laws in India. These are under the Indian Penal Code (Sections 153[A], Section 153[B], Section 295, Section 295A, Section 298, Section 505[1], Section 505 [2]), the Code of Criminal Procedure (Section 95) and Representation of the People Act (Section 123[A], Section 123[B]). The Constitution of India itself guarantees freedom of expression, but with reasonable restricts. At the same time, in response to a Public Interest Litigation by an NGO looking to curtail hate speech in India, the Court ruled that it cannot “curtail fundamental rights of people. It is a precious rights guaranteed by Constitution… We are 128 million people and there would be 128 million views.” Reflecting this thought further, a recent ruling by the Supreme Court of India, the bench declared that the “lack of prosecution for hate speeches was not because the existing laws did not possess sufficient provisions; instead, it was due to lack of enforcement.” In fact, the Supreme Court of India has directed the Law Commission to look into the matter of hate speech — often with communal undertones — made by political parties in India. The court is looking for guidelines to prevent provocative statements.
Unenviably, it is the job of India’s Election Commission to ensure that during the elections, the campaigning adheres to a strict Model Code of Conduct. Unsurprisingly, the first point in the EC’s rules (Model Code of Conduct) is: “No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.” The third point states that “There shall be no appeal to caste or communal feelings for securing votes. Mosques, churches, temples or other places of worship shall not be used as forum for election propaganda.”
This election season, the EC has armed itself to take on the menace of hate speeches. It has directed all its state chief electoral officers to closely monitor campaigns on a daily basis that include video recording of all campaigns. Only with factual evidence in hand can any official file a First Information Report (FIR), and a copy of the Model Code of Conduct is given along with all written permissions to hold rallies and public meetings.
As a result, many leaders have been censured by the EC for their alleged hate speeches during the campaign. The BJP’s Amit Shah was briefly banned by the EC for his campaign speech in the riot affected state of Uttar Pradesh, that, Shah had said that the general election, especially in western UP, “is one of honour, it is an opportunity to take revenge and to teach a lesson to people who have committed injustice”. He has apologized for his comments. Azam Khan, a leader from the Samajwadi Party, was banned from public rallies by the EC after he insinuated in a campaign speech that the 1999 Kargil War with Pakistan had been won by India on account of Muslim soldiers in the Army. The EC called both these speeches, “highly provocative (speeches) which have the impact of aggravating existing differences or create mutual hatred between different communities.”
Other politicians have jumped on the bandwagon as well. Most recently, the Vishwa Hindu Parishad’s Praveen Togadia has been reported as making a speech targeting Muslims who have bought properties in Hindu neighborhoods. “If he does not relent, go with stones, tyres and tomatoes to his office. There is nothing wrong in it… I have done it in the past and Muslims have lost both property and money,” he has said. There was the case of Imran Masood of the Congress who threatened to “chop into pieces” BJP Prime Ministerial candidate Narendra Modi – a remark that forced Congress’s senior leader Rahul Gandhi to cancel his rally in the same area following the controversy that erupted. Then there is Modi-supporter Giriraj Singh who has said that “people opposed to Modi will be driven out of India and they should go to Pakistan.” In South India, Telangana Rashtra Samithi (TRS) president K Chandrasekhar Rao termed both TDP and YSR Congress (YSRCP) as ‘Andhra parties’ and urged the people of Telangana to shunt them out of the region. The Election Commission has directed district officials to present the video footage of his speeches at public meetings, in order to determine punishment, if needed. Karnataka Chief Minister Siddaramaiah has been served notice by the EC for calling Narendra Modi a “mass murderer”; a reference to his alleged role in the Gujarat riots of 2002.
Shekhar Gupta, editor of the national paper, the Indian Express has published a piece ominously titled “Secularism is Dead,” but instead appeals to the reader to have faith in Indian democracy far beyond what some petty communal politicians might allow. The fact that the BJP’s Prime Ministerial candidate is inextricability linked in public consciousness to communal riots in his home state of Gujarat has only compounded speeches over and above what people believe is the communal politics of the BJP that stands for the Hindu majority of India. In contrast, many believe that by playing to minority politics, the Congress indulges in a different kind of communal politics. And then there are countless regional parties, creating constituencies along various caste and regional fissures.
However, perhaps the last word can be given to commentator Pratap Bhanu Mehta who writes of the Indian election: “But what is it about the structures of our thinking about communalism that 60 years after Independence, we seem to be revisiting the same questions over and over again? Is there some deeper phenomenon that the BJP-Congress system seems two sides of the same coin to so many, even on this issue? The point is not about the political equivalence of two political parties. People will make up their own minds. But is there something about the way we have conceptualised the problem of majority and minority, trapped in compulsory identities, that makes communalism the inevitable result?”
It is this inevitability of communal diatribe, of the lowest common denominators in politics that Indian politics need to rise above. This is being done, one comment at a time, as long as the Election Commission is watching. The bigger challenge lies beyond the results of 16 May, 2014.
This article was posted on 22 April 2014 at indexoncensorship.org
06 Mar 14 | European Union, Religion and Culture
A policy paper published by Article 19 has provided guidelines to help establish the difference between hate speech and freedom of expression, especially in reference to the use of hate speech against LGBTI people.
By focusing on “international standards and domestic trends countering the advocacy of hatred that constitutes incitement to hostility, discrimination or violence (“incitement”) specifically, and hate speech more generally,” Article 19 aims to define what constitutes as hate speech as well as making recommendations for the protection of freedom of expression.
The paper comes after human rights advocates, policy makers and the general public demanded clarity as to where the line should be drawn between free speech and hate speech, in particular that surrounding LGBT people.
In a statement on their own website, Article 19 said: “The paper is guided by the principle that coordinated and focused action to promote the rights to freedom of expression and equality is essential for fostering a tolerant, pluralistic and diverse democratic society in which all human rights can be realised, including those of LGBTI people.”
The policy paper points out the need for all “domestic prohibitions” to include sexual orientation and gender identity as protected characteristics, but that these laws need to conform to international standards on limiting the right to freedom of expression and information.
Through the paper Article 19 hopes to establish clear boundaries “between permissible and impermissible expression” as well as providing guidelines to help others determine what fits into each category. Not only this, but the report will also contribute to “ensuring that all people are able to enjoy both the right to freedom of expression and the right to equality.”
The report also includes a breakdown of the current jurisdiction against hate speech in 36 countries, primarily in Europe, to highlight the difference between the constitutional and philosophical choices that each country makes when drawing up legislation on free speech and equality.
Read the full report here.
20 Jan 14 | Asia and Pacific, News and features, Vietnam
Cambodian opposition leader Sam Rainsy, of Cambodia National Rescue Party (Image: Kimlong Meng/Demotix)
Cambodia, a nation once traumatised by the ‘Killing Fields’ of the Pol Pot regime in the 1970s, has come a long way since then in rebuilding the nation from year zero, including the holding of elections and the creation of a multi-party system. But the recent flood of hate-mail and death-threats sent to Mr Ou Virak, the president of CCHR (The Cambodian Centre for Human Rights) in the capital Phnom Penh, points to a society still dangerously divided over ethnic and racial issues.
Attacks on human rights activists in Cambodia and around the world mostly come from the agents and the guardians of the status quo — the police, army, militias and private security companies deployed by major corporations seeking to block workers rights. But the death threats in this case, delivered by phone, email and Facebook to Ou Virak, did not come from government quarters, but from the virulent opponents of the ruling Cambodian People’s Party (CPP), led by long-serving prime minister Hun Sen.
The hate-speech was triggered by a CCHR letter to opposition leaders representing the Cambodia National Rescue Party (CNRP), urging them to stop using racist language against the Vietnamese, the largest foreign community in Cambodia.
During one election rally long-time CNRP opposition leader Sam Rainsy told a crowd in Pray Lang Kompong Thom province: “The Yuon [The Vietnamese] are taking the Khmer land to kill the Khmer people. So the Yuon come to Cambodia to spread their relatives, to form their families and then spread out. There will be so many Yuon in Cambodia that the Khmers will be the ethnic minority. The Yuon are like thieves stealing from the Cambodian people.”
The group’s letter reads: ”CCHR is disappointed that the CNRP is once again using such harmful language, which can only encourage racism towards Cambodian citizens of Vietnamese origin, as well as Vietnamese people living in Cambodia.” This letter touched a raw and racist nerve among many opposition supporters who had been fired up by rabble-rousing speeches over the “Vietnamese threat” to their nation.
Opposition campaign speeches do not distinguish between the estimated 5% of Cambodia’s population who are ethnic Vietnamese but born in Cambodia, illegal immigrants, Vietnamese companies and citizens of the neighbouring state of Vietnam. Opposition leaders tend to lump them together as the collective “Yuon”, a pejorative word for all Vietnamese, and a convenient scapegoat for Cambodia’s ills.
Ou Virak drawing attention to the universal nature of human rights that covers all groups, including the Vietnamese minority living in Cambodia, should not provoke such rabidly violent reactions in the eyes of international human rights organisations.
Virak and the CCHR have received support from abroad, but little or no encouragement from other Cambodian human rights NGOs. Virak explained to Index: “ I think there is definitely a fear by the other NGOs that they will be attacked if they express concern regarding anti-Vietnamese rhetoric, and that they won’t be able to continue doing the work that they’re doing.”
Pung Chhiv Kek, president of local rights group Licadho, has stated “I don’t like to comment on the campaign against Mr Ou Virak. I’m not at all interested in this campaign against or for.” Yet back in the early 1990s Ms. Kek told this correspondent how she was bitterly disappointed that so many of her NGO staff at Licahdo harboured resentment towards any application of human rights principles to cover discrimination against Vietnamese residents in Cambodia.
“Sadly, many of these NGOs have shown themselves to be clearly aligned with the CNRP,” said Virak, and added “a lot of people are confused between fighting repression and just fighting the CPP”.
Thun Saray another well-known NGO leader was quoted in the Phnom Penh Post: ”I worry that if we damage one political leader, it could damage their reputation. Now it is a sensitive moment, we have to be careful.”
Cambodia, sandwiched between the two far bigger nations of Thailand and Vietnam, has suffered a substantial loss of territory during the past 600 years as a result of periodic invasions from their neighbours and the decline of the Angkorian Empire. There is a perennial fear among some Khmer people that Vietnam has evil designs to swallow Cambodia, based on a mixture of folklore, paranoia, political agitation and a jaundiced grasp of history.
The burgeoning anti-Vietnamese constituency is bolstered by their reading of Vietnam’s occupation of Cambodia from 1979-1989, as proof of a Hanoi-orchestrated plot to colonise Cambodia. Vietnam is often depicted as the hidden power behind Hun Sen, the longest-serving prime minister in the region, who enjoys special historical links to Hanoi dating back 30 years.
On the other hand millions of Cambodians share a different memory of Vietnam’s intervention in 1979, which rescued them from the genocidal grip of the Khmer Rouge regime and the “Killing Fields” at a time when Sam Rainsy was living comfortably as a banker in Paris. An United Nations-backed special tribunal has been conducting trials in Phnom Penh since 2006 to hold the former Khmer Rouge leaders accountable for crimes against humanity and genocide.
Much older generation of Cambodians, who survived the “Killing Fields”, view Sam Rainsy’s vitriolic attacks as deeply divisive. Hun Sen and the CPP government have exploited these sentiments to the hilt in their electoral campaigns. Using the “Vietnamese card” did not mobilise votes for the opposition only — it can also be a double-edged sword.
In the first democratic election in 1993, under the auspices of the UN peacekeeping mission (UNTAC), Sam Rainsy was required to delete countless references to the “Yuon” in his prepared speech. Khmer-speaking UN official Tim Carney judged these to be inflammatory and offensive. In the 1998 election, however, Mr Rainsy was again criticised by UN experts for resorting to the same tactic. “Opposition leaders are inciting hatred and racism against the ethnic Vietnamese,” complained Thomas Hammarberg, the UN human rights envoy to Cambodia in 1998.
Rainsy, a former finance minister in the Cambodian coalition government in 1994 has always denied the many accusations of racism levelled at him, claiming that he is only expressing “legitimate patriotic concern that has nothing to do with stoking racial nationalist sentiment.”
Since the September 2013 election there has been major controversy over possible election irregularities and the opposition’s demand for a fresh election. The opposition has boycotted parliament, despite winning an impressive 55 seats, with the ruling CPP gaining 68 — a loss of 24 seats.
At the same time unrest has intensified with a nationwide strike of garment workers who are demanding a living wage and are also backing the political opposition calls for Hun Sen to resign.
Against this backdrop Ou Virak is deeply worried that “anti-Vietnamese sentiments are becoming more widespread as the population becomes increasingly frustrated with the political deadlock. “
During protests outside of the Canadia factory on Veng Sreng road on 3 January 2014, there were many reports of Vietnamese shops being targeted, looted and completely destroyed by protestors.
“These actions are being left un-condemned by the leadership of the CNRP,” says Virak “which brings up clear concerns as to what the CNRP would do if in power.”
But a deepening vein of racism tainting the opposition’s campaign to unseat the entrenched ruling elite around Hun Sen is likely to prove counter-productive in the long term. At a time when the opposition is buoyed by unprecedented popular support at the polls and is getting closer to achieving power, Vietnamese-bashing is not the best way for them to convince the sceptics and the international community that they could do a far better job than the CPP of running the country.
This article was posted on 20 January 2014 at indexoncensorship.org
06 Jan 14 | Europe and Central Asia, News and features
In France, Bob Dylan is being officially investigated for “incitement to hatred” against Croats for comparing their relationship to Serbs with that between Nazis and Jews in an interview.
This article is part of a series based on our report, Time to Step Up: The EU and freedom of expression.
Freedom of information
Freedom of information is an important aspect of the right to freedom of expression. Without the ability to access information held by states, individuals cannot make informed democratic choices. Many EU member states have failed to adequately protect freedom of information and the Commission has been criticised for its failure to adequately promote transparency and uphold its commitment to freedom of information.
When it comes to assessing global protection for access to information, not one European Union member state ranks in the list of the top 10 countries, while increasingly influential democracies such as India do. Two member states, Cyprus and Spain, are still without any freedom of information laws. Of those that do, many are weak by international standards (see table below).
In many states, the law is not enforced properly. In Italy, public bodies fail to respond to 73% of requests.
The Council of Europe has also developed a Convention on Access to Official Documents, the first internationally binding legal instrument to recognise the right to access the official documents of public authorities. Only seven EU member states have signed up the convention.
Since the Lisbon Treaty came into force, both member states and EU institutions are both bound by freedom of information commitments. Article 42 (the right of access to documents) of the European Charter of Fundamental Rights now recognises the right to freedom of information for EU documents as a fundamental human right Further, specific rights falling within the scope of freedom of information are also enshrined in Article 41 of the Charter (the right to good administration).
As a result, the European Commission has embedded limited access to information in its internal protocols. Yet, while the European Parliament has reaffirmed its commitment to give EU citizens more access to official EU documents, it is still the case that not all EU institutions, offices, bodies and agencies are acting on their freedom of information commitments. The Danish government used their EU presidency in the first half of 2012 to attempt to forge an agreement between the European Commission, the Parliament and member states to open up public access to EU documents. This attempt failed after a hostile response from the Commission. Attempts by the Cypriot and Irish presidencies to unblock the matter in the Council also failed.
This lack of transparency can and has impacted on public’s knowledge of how decisions that affect human rights have been made. The European Ombudsman, P. Nikiforos Diamandouros, has criticised the European Commission for denying access to documents concerning its view of the United Kingdom’s decision to opt out from the EU Charter of Fundamental Rights. In 2013, Sophie in’t Veld MEP was barred from obtaining diplomatic documents relating to the Commission’s position on the proposed Anti-Counterfeiting Trade Agreement (ACTA).
Hate speech
Across the European Union, hate speech laws, and in particular their interpretation, vary with regard to how they impact on the protection for freedom of expression. In some countries, notably Poland and France, hate speech laws do not allow enough protection for free expression. The Council of the European Union has taken action on combating certain forms and expressions of racism and xenophobia by promoting use of the criminal law within nation states in its 2008 Framework Decision. Yet, the Framework Decision failed to adequately protect freedom of expression in particular on controversial historical debate.
Throughout European history, hate speech has been highly problematic, from the experience and ramifications of the Holocaust through to the direct incitement of ethnic violence via the state run media during wars in the former Yugoslavia. However, it is vital that hate speech laws are proportionate in order to protect freedom of expression.
On the whole, the framework for the regulation of hate speech is left to the national laws of EU member states, although all member states must comply with Articles 14 and 17 of the ECHR.[1] A number of EU member states have hate speech laws that fail to protect freedom of expression –- in particular in Poland, Germany, France and Italy.
Article 256 and 257 of the Polish Criminal Code criminalise individuals who intentionally offend religious feelings. The law criminalises public expression that insults a person or a group on account of national, ethnic, racial, or religious affiliation or the lack of a religious affiliation. Article 54 of the Polish Constitution protects freedom of speech but Article 13 prohibits any programmes or activities that promote racial or national hatred. Television is restricted by the Broadcasting Act, which states that programmes or other broadcasts must “respect the religious beliefs of the public and respect especially the Christian system of values”. In 2010, two singers, Doda and Adam Darski, where charged with violating the criminal code for their public criticism of Christianity.[2] France prohibits hate speech and insult, which are deemed to be both “public and private”, through its penal code[3] and through its press laws[4]. This criminalises speech that may have caused no significant harm whatsoever to society, which is disproportionate. Singer Bob Dylan faces the possibility of prosecution for hate speech in France. The prosecutor’s office in Paris confirmed that Dylan has been placed under formal investigation by Paris’s Main Court for “public injury” and “incitement to hatred” after he compared the relationship between Croats and Serbs to that of Nazis and Jews.
The inclusion of incitement to hatred on the grounds of sexual orientation into hate speech laws is a fairly recent development. The United Kingdom’s hate speech laws contain specific provisions to protect freedom of expression[5] but these provisions are not absolute. In a landmark case in 2012, three men were convicted after distributing leaflets in Derby depicting a mannequin in a hangman’s noose and calling for the death sentence for homosexuality. The European Court of Human Rights ruled on this issue in its landmark judgment Vejdeland v. Sweden, which upheld the decision reached by the Swedish Supreme Court to convict four individuals for homophobic speech after they distributed homophobic leaflets in the lockers of pupils at a secondary school. The applicants claimed that the Swedish Supreme Court’s decision to convict them constituted an illegitimate interference with their freedom of expression. The ECtHR found no violation of Article 10, noting even if there was, the interference served a legitimate aim, namely “the protection of the reputation and rights of others”.
The widespread criminalisation of genocide denial is a particularly European legal provision. Ten EU member states criminalise either Holocaust denial, or the denial of crimes committed by the Nazi and/or Communist regimes. At EU level, Germany pushed for the criminalisation of Holocaust denial, culminating in its inclusion from the 2008 EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. Full implementation of the Framework Decision was blocked by Britain, Sweden and Denmark, who were rightly concerned that the criminalisation of Holocaust denial would impede historical inquiry, artistic expression and public debate.
Beyond the 2008 EU Framework Decision, the EU has taken specific action to deal with hate speech in the Audiovisual Media Service Directive. Article 6 of the Directive states the authorities in each member state “must ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality”.
Hate speech legislation, particularly at European Union level, and the way this legislation is interpreted, must take into account freedom of expression in order to avoid disproportionate criminalisation of unpopular or offensive viewpoints or impede the study and debate of matters of historical importance.
[1] ‘Article 14 – discrimination’ contains a prohibition of discrimination; ‘Article 17 – abuse of rights’ outlines that the rights guaranteed by the Convention cannot be used to abolish or limit rights guaranteed by the Convention.
[2] The police charged vocalist and guitarist Adam Darski of Polish death metal band Behemoth with violating the Criminal Code for a performance in 2007 in Gdynia during which Darski allegedly called the Catholic Church “the most murderous cult on the planet” and tore up a copy of the Bible; singer Doda, whose real name is Dorota Rabczewska, was charged with violating the Criminal Code for saying in 2009 that the Bible was “unbelievable” and written by people “drunk on wine and smoking some kind of herbs”.
[3] Article R625-7
[4] Article 24, Law on Press Freedom of 29 July 1881
[5] The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 by adding Part 3A[12] to criminalising attempting to “stir up religious hatred.” A further provision to protect freedom of expression (Section 29J) was added: “Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”
