In defence of being offensive

WHEN Karpal Singh passed away some time back, amidst the outpourings of grief and tributes to his life and achievements, one or two politicians bucked the trend by saying some unkind things about him. On Twitter and Facebook, many condemned and criticised these politicians. What they did was, by most accounts, “offensive”.

Yet, putting aside whether it was appropriate, both politicians still had the right to say what they said. They were, at the end of the day, expressing their freedom of speech and expression; their constitutionally guaranteed fundamental liberties and protected human rights. No one can and should deny them this right, even if most of us took offence at what they said.

It is impossible to objectively determine what is “offensive”. Whether something is offensive or not depends on the person taking offence. It can be one person, it can be a few people and it can be members of society as a whole.

Yet, the right to freedom of speech and expression is not absolute. Not even the staunchest human rights advocate will say that freedom of speech and expression is limitless.

When these limits are breached, the State may step in to take action according to law. Laws enacted by the State which curb or restrict this right, must only be exercisable by the State when a person goes beyond these limits.

This is different from an individual’s right to sue for defamation. This is a private right, exercisable by the individual for a tort committed against him. The State does not prosecute the alleged wrong; the State’s role in such instances is only to adjudicate.

The limits to the right to freedom of speech and expression are not being offensive, insensitive or controversial. The limit is not saying something that the majority of people do not agree with. If one says something that another person finds offensive, the State has no obligation to do something about it. Even if it turns out that society as whole feel that it is offensive, the State should still not penalise the person who said it. It matters not how many people have issues with it; it is not a numbers game.

Any law that criminalises freedom of speech and expression must not restrict or prohibit freedom of speech and expression in a way that makes being offensive, insensitive or controversial the limits to freedom of speech and expression.

In what instances would it be justifiable for the State to take action? Generally, it is when the exercise of freedom of speech and expression threatens or incites actual physical harm to persons or property. The threshold is set high enough in order not to render illusory or ineffective this fundamental freedom. Speech or expression that is racist, bigoted, prejudiced, abhorrent or offensive to us must still not be penalised if there is no danger of physical harm.

Laws such as the Sedition Act do not adhere to this basic premise. The Sedition Act criminalises free speech and expression without any threat or incitement of actual physical harm. The sedition offences do not even require what was said to actually be seditious, enough that they have a “seditious tendency”. Even the intention to be seditious need not be present. This is why a law such as the Sedition Act represents an affront to democracy and is an unjustifiable restriction or prohibition on the exercise of freedom of speech and expression.

Any legislation intended to replace the Sedition Act must place the limits to freedom of speech and expression at the proper threshold.

There are also other laws that must be reviewed. Section 233 of the Communications and Multimedia Act, which makes it an offence to post on the Internet something which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass another person, is also wide enough to cover instances where there is no danger of physical harm and what is posted is merely something which people find offensive or objectionable.

The way to respond to something we find objectionable or offensive is to engage, criticise or condemn, instead of using the force of law. The two politicians who said those things about Karpal faced such a backlash from the public that one had to temper what he initially said and another had to make a public apology.

Just like how they have the right to say what they said, we too have the right to express what we feel about what they said.

Laws are not the answer to everything. We cannot force people to not say insensitive things about a dead person. Nor can we force people to respect institutions of the State. It is not the role of the law to mould individuals to “good” citizens. Harmony and unity cannot be legislated; they must come naturally. We cannot force people to love, respect or accept each other on pain of criminal sanctions. We cannot deal with racism, bigotry and prejudice by enacting a statute.

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