The wording of article 82A of the Criminal Code on the incitement to racial hatred is so wide, so loosely framed, that it does not meet the standard of a legal principle that states that an offence can exist only if it is established by law, according to Dean of Law at the University of Malta, Professor Kevin Aquilina.
In an interview published today, Aquilina was asked to go through the court judgement passed down in the much-discussed case of Police v Brandon Bartolo.
The defendant was charged on two counts: of having made improper use of an electronic means of communication and of having used hate speech.
On appeal, the Court of Criminal Appeal reversed the original judgment and found the accused guilty as charged.
The case was a result of a complaint by the offended party, Sara Ezabe, who insisted in a previous interview with this newspaper that "when an expression impinges on someone else's human rights it stops being an opinion."
Aquilina queried how it is possible for one to foresee one's conduct when one is mathematically precluded from establishing what the constitutive elements of the crime of incitement of racial hatred exactly or remotely are.
He goes on to maintain that the provision, whilst retained in substance, needs to be properly redrafted.
'The provision, whilst retained in substance, needs to be properly redrafted'
There exists a principle that an offence can exist only if it is established by law (nullum crimen sine lege) and to legal certainty.
The wording of article 82A of the Criminal Code on the incitement to racial hatred is so wide, so loosely framed, that it does not meet the standard for the aforementioned principle, according to Dean of Law at the University of Malta Prof. Kevin Aquilina, and this has human rights implications.
"If one were to dissect the constitutive elements of this provision and calculate the permutations and combinations amongst themselves, the end result is one of mathematical infinity and, consequently, total uncertainty."
Aquilina queried how it is possible for one to foresee one's conduct when one is mathematically precluded from establishing what the constitutive elements of the crime of incitement of racial hatred exactly or remotely are? Going on to maintain that the provision, whilst retained in substance, needs to be properly redrafted.
"Essentially, the provision needs to be dissected into its component parts to make it clear what criminal conduct is prohibited."
Police vs Brandon Bartolo
On the complaint of local activist Sara Ezabe, back in January, Brandon Bartolo was charged on two counts: of having made improper use of an electronic means of communication and of having used hate speech. The Court of Magistrates acquitted him on both charges.
2 weeks ago, on appeal of the Attorney General, the Court of Criminal Appeal reversed the original judgement and found the accused guilty as charged.
Asked to analyse the case by this newspaper, Aquilina broke it down into three parts that particularly defined the end result of the case – incitement to racial hatred; likelihood of stirring up racial hatred; and hate speech.
Incitement to racial hatred
Agreeing with the Court of Criminal Appeal's judgment, the Professor settled that the behaviour of the accused was such as to amount to a criminal offence in terms of article 82A of the Criminal Code, that is, incitement to racial hatred.
He explained that he arrived at this conclusion because the offence in that provision is framed so wide that it does not only contemplate the incitement to racial hatred requiring a criminal intention, but also the likelihood of racial hatred being perpetrated without the need of such criminal intention.
"One therefore has to distinguish between the actual commission, attempted commission and the likelihood of commission of the crime of stirred up racial hatred."
Likelihood of stirring up racial hatred
In the case of a likelihood of stirring up racial hatred, Aquilina explained that there is no need for the racial hatred to have taken place.
A likelihood of stirring up a crime, as distinct from an actual commission of a crime, requires a lower evidentiary burden, so it is not necessary for the prosecution to prove that racial hatred did eventually take place as a result of the incriminated writing.
This means that it is sufficient to prove that the words in and of themselves were racially inflammatory such that they could have influenced a person to commit that crime.
Hate speech
Focusing on hate speech, Aquilina adds that the wording itself is indicative of hate speech when it is referring to our country, our religion, that foreigners are guests here, that they have to comply with our laws and that if they are not willing to do so they have only one option, to go back home.
"Apart from recourse to vulgar language, the gist of the writing is based on a racist perspective, namely, that foreigners who do not share our laws and religion do not deserve to be on Maltese soil."
He continued by saying that freedom of expression does have its own limits, and that apart from denying respect for fundamental freedoms of movement, expression, assembly, association and worship, the words used are not simply inflammatory, but essentially and inherently racist.
"Further, as the Criminal Code states, the incriminated wording has to be interpreted within the context where it is published when if refers to having regard to the circumstances of the case.
In this case, the racist language was published on a website which allowed, surely in the accused's case at least, if not in other cases as well, the publication of hate speech."
Article 82A. of the Criminal Code - Incitement to racial hatred etc.
Added by: III.2002 .19.
Amended by: XI.2009 .2; VIII.2012 .2; XXIV .2014 .13; XXXVII.2016.2.
(1) Whosoever uses any threatening, abusive or insulting words or behaviour, or displays any written or printed material which is threatening, abusive or insulting, or otherwise conducts himself in such a manner, with intent thereby to stir up violence or racial or religious hatred against another person or group on the grounds of gender, gender identity, sexual orientation, race, colour, language, ethnic origin, religion or belief or political or other opinion or whereby such violence or racial or religious hatred is likely, having regard to all the circumstances, to be stirred up shall, on conviction, be liable to imprisonment for a term from six to eighteen months.
(2) For the purposes of the foregoing sub-article "violence or racial or religious hatred" means violence or racial or religious hatred against a person or against a group of persons in Malta defined by reference to gender, gender identity, sexual orientation, race, colour, language, national or ethnic origin, citizenship, religion or belief or political or other opinion.
History of Article 82A
Introduction of Provision – Acts of 2002, 2009
Provisions against racial hatred and violence were introduced into the Criminal Code in 2002 and 2009. Whereas in 2002, the offence of incitement to racial hatred was introduced in article 82A of the Criminal Code, by means of Act No. III of 2002.
In 2009, Article 82A of the Criminal Code was amended by substituting the words "racial hatred" to "violence or racial hatred".
The definition of "violence or racial hatred" was specified as being violence or hatred against a group of persons in Malta defined by reference to colour, race, religion, descent, nationality (including citizenship) or ethnic or national origins or against a member of such a group.
Expansion of law – Acts of 2012, 2014
2012 saw Article 82A be expanded to protect specific people or groups.
The words "or racial hatred or whereby" were substituted to "or hatred against another person or group on the grounds of gender, gender identity, sexual orientation, race, colour, language, ethnic origin, religion or belief or political or other opinion or whereby such".
With the introduction of "gender identity" into this provision, it was also the first time in the history of the law of the English language that a law pertaining to speech compelled someone to say something rather than restricted what one can say.
For example, one is restricted from saying a racial slur (with the intention of inciting hatred), but one was, and still is, now compelled to address an individual with the preferred pronoun(s) that that individual identified with.
In 2014, the words "violence or hatred" were substituted to "violence or racial hatred", and the words "language, ethnic origin" were substituted to "language, national or ethnic origin, citizenship".
from The Malta Independent http://bit.ly/2HIkw7k
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