Racism and the Legal Dimension
A Paper delivered at the Attorney-General’s Conference December 9th 2016
Nazhat Shameem Khan
Permanent Representative of Fiji to the United Nations and Other Organisations in Geneva, and Ambassador to Switzerland
“All human beings are born free and equal in dignity and rights”
(Universal Declaration of Human Rights, 1948)
“In this Convention the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”
(Convention on the Elimination of All Forms of Racial Discrimination)
“Every person is equal before the law and has the right to equal protection, treatment and benefit of the law.”
(Section 26(1) of the Constitution of Fiji)
“Treating one person differently from another on any of the grounds prescribed under subsection (3) is discrimination, unless it can be established that the difference in treatment is not unfair in the circumstances.”
(Section 26(7) of the Constitution of Fiji)
One of the most challenging concepts faced by society in the 21st century, is the concept of equality. Even more challenging is the effect of the law on equality, and the effect of equality on the law. A significant feature of the Bangalore Principles of Judicial Ethics, is that they require judges and magistrates to promote equality in and through the courts. Not only must judges and magistrates ensure equality in the substantive law, but they must also ensure that the way in which the court is administered is not discriminatory. Racial and cultural equality is particularly challenging in Fiji’s context. This is because British colonial policy was to define all colonial planning and resource allocation according to the ethnicity of Fijians. Thus there were separate seats in the Legislative Council, separate schools for the children, separate court systems, and separate development plans. The separation did not rest only on ethnicity. Class and status also had much to do with the quality of education one received, and with access to loans and to micro financing. Thus ethnicity in Fiji is often interwoven with other sources of discrimination, with gender, disability, economic status, social status, and religion. As with other countries with a colonial past, institutions and policies designed to rule indirectly under colonial rule, were perpetuated and preserved by post-colonial governments to entrench political power. Indirect rule after all, is more about the preservation of political and economic power and less about cultural autonomy. The law can be an instrument of perpetuating such power. In the 21st century, the development of the law in the jurisprudence of equality, has become one of the most defining features of the dismantling of racism as a social and political structure in international and domestic law.
Ethnicity and Equality
The Universal Declaration of Human Rights and the International Covenant for Civil and Political Rights have a disadvantage that the European Convention on Human Rights does not. They are not enforceable by the Courts. The European Convention on the other hand provides a mechanism for individuals to challenge States’ decisions by measuring such decisions against the Convention.
Article 14 of the European Convention states; “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
However, for some time the jurisprudence of the courts considered race and racism in conjunction with other rights, such as the right to be protected from cruel, inhumane and degrading treatment and punishment and in relation to freedom of expression and association . Cases which directly alleged racial discrimination started to trickle into the European Court only around 1985. One such case was Abdulaziz, Cabales and Balkandali v. the United Kingdom , a case which alleged both racial and gender bias in the administration of British immigration laws for nationals of former colonies. The Court concluded that although there had been discrimination on the ground of gender, there had been no discrimination on the ground of race. The Court said in defining discrimination, “the notion of discrimination within the meaning of Article 14 (art. 14) Includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.”
In 2005, the European Court made its first finding of racial discrimination in the case of Nachova and Others v Bulgaria . In that case, two young Roma men, relatives of the applicants, were members of the armed forces. They were put in jail for unauthorized absences. They then escaped from prison and were hiding in their grandmother's house. When they tried to escape from the house, unarmed, they were shot and killed by a military police officer with an automatic rifle. A subsequent investigation into the case by the authorities concluded that the use of the firearms had been lawful.
In a Chamber judgment of 26 February 2004, the Court held unanimously that there had been violations of Article 2 (right to life) concerning both the shootings and the lack of an effective investigation and violations of Article 14 (non-discrimination) concerning the lack of an investigation into whether discriminatory attitudes played a role in the shootings and concerning the shootings themselves. The case was referred to the Grand Chamber at the Government's request.
The Court noted as a matter of grave concern that the regulations on the use of firearms by the military police effectively permitted lethal force to be used when arresting a member of the armed forces for even the most minor offence. The Court thus found that there had been a general failure by Bulgaria to comply with its obligation to secure the right to life by putting in place an appropriate legal and administrative framework on the use of force and firearms by military police. The Court noted that, regrettably, the use of firearms in the circumstances of this case was not prohibited by the relevant domestic regulations. The military police officers carried their automatic rifles in accordance with the rules and had been instructed to use all necessary means to effect the arrest.
The investigating authorities had before them the statement of a neighbour, stating that the arresting officer shouted "You damn Gypsies" and pointing a gun at him. This statement had called for verification. The investigator and the prosecutors had done nothing to verify the neighbour’s statement or the reasons it had been considered necessary to use lethal force. They had disregarded relevant facts and terminated the investigation. As a result, the Court found that the authorities had failed in their duty under Article 14, taken together with Article 2, of the European Convention, to take all possible steps to investigate whether or not discrimination may have played a role in the events. There was therefore a violation of Article 14.
In Sejdić and Finci v. Bosnia and Herzegovina the applicants complained that they were unable to stand in elections. As part of a peace settlement to bring an end to the conflict in the 1990s, a power-sharing agreement between the three main ethnic groups was reached. This included an arrangement that any candidate standing for election had to declare their affiliation to the Bosniac, Serb or Croat community. The applicants, who were of Jewish and Roma origin, refused to do so and alleged discrimination on the basis of race and ethnicity. The ECtHR repeated its explanation of the relationship between race and ethnicity in Timeshev v Russia (see footnote 6) adding that ‘discrimination on account of a person’s ethnic origin is a form of racial discrimination’. The ECtHR finding of racial discrimination illustrates the interplay between ethnicity and religion. Furthermore the ECtHR found that despite the delicate terms of the peace agreement this could not justify such discrimination.
As a result of the European Court decisions, and greater sensitivity to the role that racism has played in the social history of Europe, the European Union has created guidelines on racial discrimination. The EU Council’s Framework Decision on combating racism and xenophobia under the criminal law defines racism and xenophobia to include violence or hatred directed against groups by reference to ‘race, colour, religion, descent or national or ethnic origin’. The Council of Europe’s Commission against Racism and Intolerance has also adopted a broad approach to defining ‘racial discrimination’, which includes within itself the grounds of ‘race, colour, language, religion, nationality or national or ethnic origin’. Similarly, Article 1 of the UN Convention on the Elimination of Racial Discrimination, 1966 (to which all the Member States of the European Union and Council of Europe are party) defines racial discrimination to include the grounds of ‘race, colour, descent, or national or ethnic origin’.
The Committee on the Elimination of Racial Discrimination, responsible for interpreting and monitoring compliance with the Convention has further stated that unless justification exists to the contrary, determination as to whether an individual is a member of a particular racial or ethnic group, ‘shall … be based upon self-identification by the individual concerned.’
This prevents the State from excluding from protection any ethnic groups which it does not recognise. Although EU law does not expressly list language, colour or descent as protected grounds, this does not mean that these characteristics could not be protected as part of race or ethnicity, in so far as language, colour and descent are inherently attached to race and ethnicity.
In the Timishev case, an applicant of Chechen origin was not permitted to pass through a checkpoint, as the guards were under instructions to deny entry to those of Chechen origin. The ECtHR gave the following explanation: ‘Ethnicity and race are related and overlapping concepts. Whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies according to morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds.’ In Sejdić and Finci v. Bosnia and Herzegovina the ECtHR stated in relation to discrimination based on race and ethnicity that: ‘no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect.’
The CERD treaty body comments and recommendations help to shape the law on racial discrimination. Fiji has ratified CERD and has been the subject of such recommendations. I summarise them in the next section of the paper. However, there are no cases in Fiji which have considered such recommendations in the interpretation of section 26 of the Constitution. Section 7 (1) (b) of our Constitution allows the courts to apply international law in the interpretation of the Bill of Rights. Our courts have shown a willingness to include recommendations of treaty bodies in this category and have used recommendations from the Committee on Civil and Political Rights for instance to interpret the rights of persons in custody and the rights of persons to a fair trial . In principle therefore, comments and recommendations by the CERD Committee could be taken into account in interpreting section 26 in relation to race.
What is clear however, is that racial discrimination as a ground for challenging decisions and action is a sword for litigation. The cases from the European Court illustrate this, as well as the increasing willingness to recognise the intersection between ethnicity, religion, nationality, colour and culture as the sources of unfair discrimination.
An interesting issue which is as yet unlitigated, is the relationship between unfair discrimination, and affirmative action designed to attain equality for a group which claims historical disadvantage. We know that basing differential treatment exclusively on ethnicity is racism (Sejdic and Finci ibid). What differential treatment for a community is justified? The answer must surely lie in evidence of historical disadvantage which arises solely from ethnicity. In law therefore, it is not enough to say that I am disadvantaged because I am an untouchable. I must also show evidence that all untouchables have experienced a disadvantage in relation to access of all services and advantages available to other members of society. In India the untouchable caste has a Constitutional protection, and is declared to be a community which is disadvantaged. However, are there privileged untouchables? Are they entitled to affirmative action?
This question has been answered by the Indian Supreme Court in relation to a 27% reservation of places in schools and colleges in India for the Socially and Educationally Backward Classes. In that case, in a judgement delivered by the Chief Justice of India, the Court said;
“Though for the purpose of convenience, the list is based on caste, it cannot be said that backward class has been identified solely on the basis of caste. The only possible objection that could be agitated is that in many of the castes included in this list, there may be an affluent section (creamy layer) which cannot be included in the list of SEBCs.”
The Court added: “When socially and educationally backward classes are determined by giving importance to caste, it shall not be forgotten that a segment of that caste is economically advanced and they do not require the protection of reservation.”
Referring to the arguments made on behalf of the Pattalai Makkal Katchi, a political party based in Tamil Nadu, that the exclusion of the creamy layer should not apply to educational institutions, the Chief Justice stated: “They are excluded because unless this segment of caste is excluded from that caste group, there cannot be proper identification of the backward class. If the ‘creamy layer’ principle is not applied, it could easily be said that all the castes that have been included among the SEBCs have been included exclusively on the basis of caste.”
The Chief Justice further stated that “by excluding those who have already attained economic well-being or educational advancement, the special benefits cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary resulting in reverse discrimination.”
The judgment is confined to the assistance given to Other Backward Castes (OBC’s) and not to the Scheduled Castes and Scheduled Tribes. The justification is for the differential treatment of the two categories is the legitimate social need for special treatment of the latter is the uplifting of social status of these castes and tribes irrespective of economic wealth. However as a result of the decision of the Court, changes were made in the eligibility of persons from OBC’s to apply for special treatment in educational institutions. In effect, The Supreme Court has said that the benefit of reservation should not be given to OBC children of constitutional functionaries—such as the president, judges of the Supreme Court and high courts, employees of central and state bureaucracies above a certain level, public sector employees, and members of the armed forces and paramilitary personnel above the rank of colonel. As a result the Indian Government has issued a policy of exemptions from benefit from the affirmative action entitlement.
The children of persons engaged in trade, industry and professions such as a doctor, lawyer, chartered accountant, income tax consultant, financial or management consultant, dental surgeon, engineer, architect, computer specialist, film artists and other film professional, author, playwright, sports person, sports professional, media professional or any other vocations of like status whose annual income is more than ₹ 600,000 (Rs 6 lakh) for a period of three consecutive years are also excluded. OBC children belong to any family earning a total gross annual income (from sources other than salary and agricultural land of less than Rs 6 lakh for a period of three consecutive years—as the 1993 income ceiling for the creamy layer was raised from ₹ 100,000 (Rs 1 lakh to Rs 6 lakh) for a period of three consecutive years. Individuals belonging to the creamy layer are also excluded from being categorised as "socially and educationally backward" regardless of their social/educational backwardness.
Affirmative action then, confined to a person or group on the basis of ethnicity alone, is racial discrimination. If a government wishes to introduce such measures as part of a social justice programme, it would have to justify such a programme not only in terms of historical disadvantage, but also on the basis that the programme will not perpetuate existing privilege and advantage. In short, that affirmative action does not perpetuate a creamy layer.
Fiji and the CERD Committee
Fiji’s last report to the CERD Committee was submitted in 2012. In the Committee’s concluding observations, it noted with approval the Government’s work towards to removing institutionalised racism in Fiji, the withdrawal of reservations to Articles 2 to 6 and 15 and 20 of the Convention, and noted with interest the reforms to the school systems designed to remove racially based schools. However, it did recommend that the State keep data on ethnicity, age and gender to evaluate the socioeconomic status of the population in relation to ethnicity. Government’s response to that recommendation was that the keeping of ethnically specific data would lead to racial profiling and would reverse the attempts of Government to create national unity. Other observations of the Committee were that Fiji still lacked a legislative definition of racial discrimination in accordance with Article 1 of the Convention, and that there were no reported cases before the courts which revealed that ethnicity was a motive for criminal offending. The Committee also regretted the lack of information about whether law enforcement officials were motivated by racial and ethnic factors in enforcing the law. The Committee recommended in relation to the justice system that, inter alia;
“Recalling its general recommendation No.31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system and noting that an absence of complaints cannot be taken to mean that none exist, the CERD/C/FJI/CO/18-20 3 Committee recommends that the State party assess the reasons for the absence of complaints relating to racial discrimination and address them. The Committee requests that the State party provide in the next periodic report updated information on complaints about acts of racial discrimination and on relevant decisions in court proceedings and by the Fiji Human Rights Commission, including on remedies provided to victims. It also encourages the State party to raise the level of public awareness of national legal remedies in the field of racial discrimination, and to disseminate the Convention in different languages. The Committee urges the State party to provide interpreters in court proceedings to minorities who are not speakers of the three common languages in order to guarantee the right of members of such minorities to a fair trial.”
Race, hate speeches and the criminal law as justifiable limitations
Many of the rights set out in the Bill of Rights in our Constitution permit limitations. Some state that limitations to rights are permitted to the extent that they are “necessary”, others state that a law may authorise the limitation of the rights to the extent that it is authorised by a law. Section 6 (5) of the Constitution provides that rights may be limited by express limitations, limitations set out elsewhere in the constitution, and limitations which are not set out expressly, but which are provided for in law, and which are necessary. Section 7 of the Constitution states that when interpreting the Bill of Rights, a court, tribunal or other authority, must promote the values that underlie a democratic society based on human dignity, equality and freedom and may if relevant consider international law applicable to the rights and freedoms in the Bill of Rights. So, how do we read limitations in relation to rights?
Some years ago, when considering the impact of the 1997 Bill of Rights on Fiji’s law of sedition, and when considering whether the common law of contempt of court had survived the freedom of expression provision in the Constitution, the Fijian courts emphasised the need to read legislation with democratic values in mind. In State v Afasio Mua and Others , the Court of Appeal said that the law of sedition in our Penal Code (now defined in the same terms in our Crimes Decree) was a justifiable limitation to the freedom of expression and opinion provision in the 1990 Constitution because the exemption to the offence was that what might be a seditious statement was saved because it was uttered to persuade the government to change the laws. The Court of Appeal said;
“However, we are compelled to observe that, whilst sedition is a widely drawn offence, the erosion of the freedom of expression is modified by the defences in paragraph (a) to (d) of section 65(1) (a)-(d). Before a Court can convict, it must first look to the intent of the person committing the act charged. If that amounts to one or more of the intentions in section 65(1) (i)-(v) the Court must then consider if paragraphs (a)-(d) may apply.
The purpose of the offence is to prevent any unlawful attacks on the tranquillity of the State but it is not intended to prevent legitimate political comment. Deeply held political convictions frequently provoke strong emotions but there is authority to show that even strong or intemperate words or actions may not demonstrate a seditious intention if done with the purpose of expressing legitimate disagreement with the government of the day in terms of paragraphs (a)-(d). When determining that, the Courts should always be reluctant to extend any inroads on the protected constitutional freedoms. They should look at alleged seditious actions with a free, fair and liberal spirit. Those words were used by Fitzgerald J in directing the jury in R v. Sullivan (1868) 11 Cox 44 at 59 and he continued:
"You should recollect that to public political articles great latitude is given. Dealing as they do with public affairs of the day - such articles if written in a fair spirit, and bona fide, often result in the production of great public good.
Therefore, I wish to remind you to deal with these publications in a spirit of freedom and not view them with an eye of narrow criticism...... I ask you to view them in a broad and bold spirit, and give them a liberal interpretation."
That case concerned political publications but the same approach applies to political actions and is the test to be used. The Court should bear in mind that genuine political dissent is often the ground from which democracy grows and always be vigilant that a charge of sedition is not used simply as a means to suppress it. For that reason the Court should always consider whether paragraphs (a)-(d) apply in any charge of sedition.
The formula for the interpretation of a limitation has already been defined in human rights jurisprudence. The same formula has been applied in human rights cases in Fiji. The questions the court will ask are as follows;
- Is the limitation prescribed by a law?
- Was the law designed to meet a legitimate social need?
- Is the limitation reasonable and justifiable in a democratic society and with democratic values?
- Is the actual limitation proportionate to the social need?
This brings me the important and topical subject of hate speeches. There are two types of hate speeches in our Constitution. One is in section 17(2) in relation to which freedom of expression does not apply at all, and the other in section 17 (3) (b) (i ) which is a limitation to free speech and which must satisfy the Oakes test. Section 17 (2) states that:
“Freedom of speech, expression, thought, opinion, and publication does not protect –
(a) Propaganda for war;
(b) Incitement to violence or insurrection against the Constitution; or
(c) Advocacy of hatred that
- Is based on any prohibited ground of discrimination listed or prescribed under section 26; and
- Constitutes incitement to cause harm.”
This means that no one is free to advocate hatred against any racial or religious or ethnic group in Fiji, and to incite harm against members of that group. This type of hate speech is not a limitation. There is simply no freedom in Fiji to incite people to attack, for instance members of the Chinese or Jewish community.
Section 17 (3) (b) (i) is a different species and does constitute a limitation. The section provides that to the extent that it is necessary, a law may limit, or may authorise the limitation of, the rights and freedoms mentioned in subsection (1) in the interests of;
“(b) The protection or maintenance of the reputation, privacy, dignity, rights or freedoms of other persons, including –
- The right to be free from hate speech, whether directed against individuals or groups;”
Section 17 (4) defines a “hate speech”, as “an expression in whatever form that encourages, or has the effect of encouraging discrimination on a ground listed or prescribed under section 26”
Did Fiji need to create such an exemption? Are hate speeches a permissible limitation in international law, to freedom of speech or expression? In a democratic country, are we permitted to make racist hate speeches against other communities?
The Convention for the Elimination of Racial Discrimination does not specifically use the words “hate speech” in its text. Article 4 (a) of the Convention deals with, 1.dissemination of ideas based on racial superiority; 2. dissemination of ideas based o nracial hatred; 3. incitement to racial discrimination; and 4. incitement to acts of racially motivated violence. Article4(c) also calls for prohibitions on public authorities or institutions promoting or inciting racial discrimination, illustrating the particular evil of public officials and bodies engaging in racist activities. CERD, by virtue of its focus on racial discrimination, does not guarantee the right to freedom of expression. However, Article4 does require that any measures taken to implement it have due regard for the principles set out in both the UDHR and Article 5 of CERD, which provides forequality before the law in the enjoyment of a large number of rights,including freedom of expression. Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), guarantees the right to freedom of expression as follows:
“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print,in the form of art or through any other media of his choice.”
Article 19(3) of the ICCPR permits limited restrictions on freedom of expression where these are
- provided by law;
- for the protection of one of the legitimate interests listed; and
- necessary to protect that interest.
Article 20 (2) provides that;
“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The relationship between Article 19 and Article 20, has been the subject of several recommendations of the UN Human Rights Committee. A State is obliged to prohibit hate speeches, but any such law must not overstep the expectations of Article 19. The relationship is illustrated in the cases of Ross v Canada, and Faurisson v. France. In the latter, the Committee said this;
“[T]here may be circumstances in which the right of a person to be free from incitement to discrimination on grounds of race, religion or national origins cannot be fully protected by anarrow,explicit law on incitement that falls precisely within the boundaries of article20, paragraph2.This is the case where…statements that do not meet the strict legal criteria of incitement can be shown to constitute part of a pattern of incitement against a given racial, religious or national group, or where those interested in spreading hostility and hatred adopt sophisticated forms of speech that are not punishable under the law against racial incitement,even though their effect may be as pernicious as explicit incitement,if not more so.”
In Ross v Canada, a teacher had been removed from a classroom for making anti-Semitic statements and for denying the existence of the Holocaust. The Committee looked at three necessary components of hate speech under Article 20 of the ICCPR, intent, incitement and resulting hatred. The Committee found that all three components were present, and found that the removal of the teacher was not a restriction on free speech.
In a case considered by both the CERD Committee and the European Court, a Danish journalist had been convicted for a television programme which included hate speech statements by racist extremists, although the purpose of the programme was really to expose racism in Denmark. The CERD Committee was divided in its response, stating, in its report to the UN General Assembly, that some members welcomed this decision as the clearest statement yet,in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression.Other members thought that in such cases the facts needed to be considered in relation to both rights.
The European Court of Human Rights, by a clear majority but not a unanimous decision, held that the conviction by the Danish courts was a breach of Jersild’s right to freedom of expression. The Court took into account the fact that the statements were made in the context of a serious programme intended for an informed audience and dealing with social and political issues. It also relied heavily on its finding that Jersild’s purpose or intent was not to promote racism but, on the contrary, to expose and analyse it, stating: “
“[A]n important factor in the Court's evaluation will be whether the item in question, when considered as a whole, appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas.”
Hate speech under CERD does not necessarily require evidence of an intent to be racist. The ICCPR provisions as interpreted by the Human Rights Committee, and as incorporated into the European Convention on Human Rights, do. Our sections 17 (2) and (4) are not confined to hate speeches based on race or racial superiority. They are based on all forms of discrimination set out in section 26, including gender and health status. In this sense, our provisions go even further than the American Convention on Human Rights . How they are interpreted in the context of racist hate speeches and our criminal law on sedition and inciting communal hatred under the Crimes Decree, by our courts, will be interesting and will no doubt develop new jurisprudence.
In 2013, the Office of the High Commissioner for Human Rights launched the Rabat Plan of Action , on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. It was intended to give effect to Article 20 of the ICCPR. In relation to legislation, the Plan of Action made the following recommendations;
“In terms of general principles, a clear distinction should be made between three types of expression: expression that constitutes a criminal offence; expression that is not criminally punishable but may justify a civil suit or administrative sanctions; expression that does not give rise to criminal, civil or administrative sanctions but still raises a concern in terms of tolerance, civility and respect for the rights of others.
- States should ensure that, bearing in mind the interrelationship between articles 19 and 20 of the ICCPR, the domestic legal framework on incitement should be guided by express reference to article 20 of the ICCPR (“advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”) and should consider including robust definitions of key terms like hatred, discrimination, violence, hostility, etc. In this regard, legislation can draw, inter alia, from the guidance and definitions provided in the Camden Principles on Freedom of Expression and Equality (Camden Principles). Pursuant to its Principle 12, national legal systems should make it clear, either explicitly or through authoritative interpretation that the terms hatred and hostility refer to “intense and irrational emotions of opprobrium, enmity and detestation towards the target group”
- States should ensure that the three part test for restrictions of freedom of expression – legality, proportionality and necessity – also applies to cases of incitement to hatred.
- States should make use of the guidance provided by the international human rights expert mechanisms, including the Human Rights Committee and the Committee on the Elimination on Racial Discrimination (CERD) and their respective General Comment 34 and General Recommendation 15 as well as the respective special procedures mandate holders of the Human Rights Council.
- States are encouraged to ratify and effectively implement the relevant international and regional human rights instruments, remove any reservations thereto, and honour their reporting obligations thereunder.
- States that have blasphemy laws should repeal these as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion.
- States should adopt comprehensive anti-discrimination legislation that includes preventive and punitive action to effectively combat incitement to hatred.”
The Plan of Action also makes recommendations in relation to the development of jurisprudence, as follows;
- “National and regional courts should be regularly updated on international standards and international, regional and comparative jurisprudence regarding incitement to hatred because when confronted with such cases, courts need to undertake thorough analysis based on a well thought through threshold test.
- States should ensure the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.
- Due attention should be given to minorities and vulnerable groups by providing legal and other types of assistance for their members.
- States should ensure that persons who have suffered actual damage as a result of incitement to hatred have a right to an effective remedy, including a civil or non-judicial remedy for damages.
- Criminal sanctions related to unlawful forms of expression should be seen as last resort measures to be only applied in strictly justifiable situations. Civil sanctions and remedies should also be considered, including pecuniary and non-pecuniary damages, along with the right of correction and the right of reply. Administrative sanctions and remedies should also be considered, including those identified and put in force by various professional and regulatory bodies.”
In 2013 also, the CERD Committee in General Recommendation 35 considered the scope and significance of hate speeches. At paragraph 7 , the Committee said;
“Racist hate speech can take many forms and is not confined to explicitly racial remarks. As is the case with discrimination under article 1, speech attacking particular racial or ethnic groups may employ indirect language in order to disguise its targets and objectives. In line with their obligations under the Convention, States parties should give due attention to all manifestations of racist hate speech and take effective measures to combat them. The principles articulated in the present recommendation apply to racist hate speech, whether emanating from individuals or groups, in whatever forms it manifests itself, orally or in print, or disseminated through electronic media, including the Internet and social networking sites, as well as non-verbal forms of expression such as the display of racist symbols, images and behaviour at public gatherings, including sporting events.”
When should a hate speech be punishable by the (criminal) law?
At paragraph 15 the Committee said the answer is as follows;
“While article 4 requires that certain forms of conduct be declared offences punishable by law, it does not supply detailed guidance for the qualification of forms of conduct as criminal offences. On the qualification of dissemination and incitement as offences punishable by law, the Committee considers that the following contextual factors should be taken into account:
The content and form of speech: whether the speech is provocative and direct, in what form it is constructed and disseminated, and the style in which it is delivered.
The economic, social and political climate prevalent at the time the speech was made and disseminated, including the existence of patterns of discrimination against ethnic and other groups, including indigenous peoples. Discourses which in one context are innocuous or neutral may take on a dangerous significance in another: in its indicators on genocide the Committee emphasized the relevance of locality in appraising the meaning and potential effects of racist hate speech.
The position or status of the speaker in society and the audience to which the speech is directed. The Committee consistently draws attention to the role of politicians and other public opinion-formers in contributing to the creation of a negative climate towards groups protected by the Convention, and has encouraged such persons and bodies to adopt positive approaches directed to the promotion of intercultural understanding and harmony. The Committee is aware of the special importance of freedom of speech in political matters and also that its exercise carries with it special duties and responsibilities.
The reach of the speech, including the nature of the audience and the means of transmission: whether the speech was disseminated through mainstream media or the Internet, and the frequency and extent of the communication, in particular when repetition suggests the existence of a deliberate strategy to engender hostility towards ethnic and racial groups.
The objectives of the speech: speech protecting or defending the human rights of individuals and groups should not be subject to criminal or other sanctions.”
And, in relation to freedom of expression, at paragraph 25, the Committee said;
“The Committee considers that the expression of ideas and opinions made in the context of academic debates, political engagement or similar activity, and without incitement to hatred, contempt, violence or discrimination, should be regarded as legitimate exercises of the right to freedom of expression, even when such ideas are controversial.”
There are many issues in relation to race and racial discrimination which I have not dealt with at length in this paper. The obligation under CERD to transform societies through education and training, the need for judges and judiciaries in conjunction with national human rights institutions to develop laws which give effect to CERD and ICCPR in relation to race and ethnicity, proper data collection in detecting the incidence of racial discrimination, and the need for the media to be informed, enlightened and transformative in building united and equal societies, are all important components of combatting racial discrimination in all its forms. However, my focus is on the legal approach to questions asked in contemporary Fiji, about the relationship between rights and limitations in relation to hate speech, whether affirmative action is racism per see, and whether the criminal law may restrict the rights of people to abuse people of other cultures and communities. I hope that I have addressed these issues. Race and ethnicity are vexed and difficult issues in 21st century Fiji. Often, those who seek to protect their own communities from a loss of identity, believe that such a loss can only be prevented by destroying or undermining the cultural identity of others. We in Fiji, in working towards a unity built on trust and tolerance, must first get the international context of equality, right in our endeavours. We do not need to reinvent the wheel. The CERD Committee, the Human Rights Committee, and the European Court of Human Rights are excellent places to look when we need to see how to turn our wheel in Fiji.
Nazhat Shameem Khan
Geneva, December 2016