(This case involves the Osaka City Ordinance on Dealing with Hate Speech (Osaka City Ordinance No. 1 of 2016, where two residents of the city questioned the enforcement of the ordinance for violating the Constitution.)

The freedom of expression guaranteed by Article 21, paragraph (1) of the Constitution is a fundamental human right that is essential for the political process of constitutional democracy and is an important right that provides the basis for a democratic society. However, it is not guaranteed without limit, but it should be said that the freedom of expression is sometimes restricted by public welfare to a reasonable, necessary, and indispensable extent. Then, in this case, it is reasonable to determine whether restriction on the freedom of expression under the Provisions is approved as restriction to the aforementioned extent by weighing the degree of necessity of restriction for the purpose of the Provisions, the content and nature of the freedom restricted, and the form and degree, etc. of specific restriction imposed on the freedom (see 1977 (O) 927, the judgment of the Grand Bench of the Supreme Court of June 22, 1983, Minshu Vol. 37, No. 5, at 793, etc.).

The Provisions can be considered to constrain a certain range of the freedom of expression through measures to prevent spread, etc. The purpose thereof is considered to exist in the promotion of deterrence of hate speech under the Ordinance in light of the context, etc. thereof. Then, needless to say, there is a significant need to deter expression activities that fall under hate speech under the Ordinance which can cause civil or criminal liability, such as expression activities targeting specific individuals. In addition, in light of what was instructed in 1.(2) above, expression activities that cannot be considered to immediately cause the aforementioned liability, like those targeting an unspecified and large number of persons, such as a certain ethnic group as a whole, are also publicly conducted for unjust purposes, such as exclusion of a specific person, etc. from society on the grounds of his/her specific attributes pertaining to a certain race or ethnic group. In terms of their content or form, such expression activities can be considered to especially induce or foment a sense of discrimination, hatred, etc. against persons who belong to a certain race or ethnic group or agitate criminal acts, through actions such as causing harm to the lives, bodies, etc. of those persons. Therefore, it should be said that there is still a significant need to deter such expression activities. In addition, it can be said that the purpose of the Provisions is reasonable and justifiable, taking into account the fact that propaganda activities, etc. accompanied by extreme and highly malicious discriminatory behavior as mentioned above seem to have been frequently conducted in the City.

Moreover, the content and nature of expression activities that are restricted pursuant to the Provisions are limited to those accompanied by extreme and highly malicious discriminatory behavior as mentioned above. In addition, in terms of the form and degree of the restriction, such expression activities only become subject to measures to prevent spread, etc. taken by the city mayor after the fact. Then, regarding measures to prevent spread, it is considered that the city mayor may make a request for the removal of a signboard, posted matter, etc. and a request for the deletion of an expression on the internet, etc. However, there is no sanction against a person who does not accept such request, etc. Regarding the publication of recognition, etc., there is no enforceable means for identifying the name of a person who conducted relevant expression activities.

Therefore, it should be said that restriction on the freedom of expression under the Provisions is only to a reasonable, necessary, and inevitable extent. According to what was instructed above, out of the Provisions, Article 2, paragraph (1) of the Ordinance that provides for the definition of hate speech under the Ordinance and Article 5, paragraph (1) of the Ordinance that provides for the requirements for the city mayor to take measures to prevent spread, etc. are said to be provisions from which the standards for determining whether relevant expression activities are subject to the application of the Provisions in specific cases can be understood based on the comprehension of the general public having the ordinary capacity to make determinations. Therefore, the Provisions can neither be considered unclear nor be considered as an excessively extensive regulation.

Source: Minshu Vol. 76, No. 2, 2022.02.15, Judgments of the Supreme Court, www.courts.go.jp/app/hanrei_en/detail?id=1888.

These suo moto proceedings under Article 184(3) of the Constitution of Islamic Republic of Pakistan were initiated on a letter received from the Justice Helpline, an NGO, regarding an attack on a Church in Peshawar in which 81 persons died (subject matter of FIR No. 728 dated 22.9.2013 under Sections 302/324/427 PPC, 3/4 of the Explosive Substances Act and Section 7 of the Anti Terrorism Act at Police Station Khan Raziq Shaheed (Kabuli), Peshawar). Complaints were also received from adherents of Hindu faith and it was prayed that the Court should direct the authorities to take remedial measures so that their places of worship are protected.

Court ruling:

13. Religion has played an important role in human history, and faith has influenced the minds and actions of individuals, societies and nations down the ages. By freedom of religion and belief is meant the right of a person to follow a doctrine or belief system which, in the view of those who profess it, provides spiritual satisfaction. However, it is impossible to define the term ‘religion’ in rigid terms. The freedom of religion must then be construed liberally to include freedom of conscience, thought, expression, belief and faith. Freedom, individual autonomy and rationality characterize liberal democracies and the individual freedoms thus flowing from the freedom of religion must not be curtailed by attributing an interpretation of the right to religious belief and practice exclusively as a community-based freedom. Thefreedom of religion and conscience has been protected in several treaties and declaration⁴. Article 18 of the United Nations Covenant on Civil and Political Rights, 1966 provides as follows:-

“Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief or belief in worship, observance, practice and teaching.”

14. The fundamental right to freedom of religion and belief was articulated at the international level by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. These human rights norms then serve as moral checks and efforts are continually being made to incorporate these rights into domestic laws. The Supreme Court of Pakistan has invoked International Human Rights norms in numerous cases ⁵. It is evident from a bare reading of these provisions that the freedom of conscience cannot be separated from the freedom of religion. While the freedom of conscience is an individual right, the right to religion has both individual and community based connotations. Sub-article (a) of Article 20 of the Constitution also recognizes the individual and communal natureof the right to freedom of religion as it addresses "every citizen" and "every religious denomination and every sect thereof" and one aspect cannot trump the other. Moreover, the individual aspect to the freedom of religion applies both against inter-religion and intra-religion conflict.
                                          xxx                                xxx                                 xxx
 In the subcontinent, the individual right of freedom to religion has occasionally been trumped by the right of the community, as in the above-cited Indian case of Sardar Syedna. It is imperative that the right to freedom of religion be restored as an individual and indefeasible right, while concurrently preserving and protecting this right at a communal level, where the latter does not infringe on the former.
                                            xxx                                xxx                                 xxx
25. Islam does not compel people of other faiths to convert. It has given them complete freedom to retain their own faith and not to be forced to embrace Islam. This freedom is documented in both the Holy Quran and the Prophetic teachings known as Sunnah. ALLAH addresses the Prophet Muhammad (PBUH) in the Quran:

       “If it had been your Lord’s will, they would all have believed
        all of who are on earth! Will you then compel humankind,
        against their will, to believe⁷?”

       Let there be no compulsion in religion; truth stands clear
       from error: whoever rejects false gods and believes in God
       has grasped the most trustworthy hand-hold that never
       breaks. And God hears and knows all things.⁸”
                                             xxx                                xxx                                 xxx
36. The spirit of pluralism reflected in the Holy Quran constantly points out that Muhammad (PBUH) had not come to cancel the older religions, to contradict their Prophets or to start a new faith. To the contrary, His message is the same as that of Abraham, Moses, David, Solomon or Jesus. The cherished goal of creating a more pluralistic society where fundamental rights are respected would continue to elude us unless we realize that we are living in a world of globalized interdependence, a world of interconnectivity, of cyber space, of shrunken distances, of cross border migration, and a world of rapidly changing cultural identities. We are all members of one race of humans with common challenges, and we cannot confront these challenges without forging a common alliance. This paradigm shift in the world around us can be achieved at the international and domestic levels only by discouraging sectarian, racial and ethnic biases which are violative of shared values and fundamental rights, and by the promotion of and strict compliance with these values and rights.

Notes

4 European Convention on Human Rights and Fundamental Freedoms (Article 9), the American Convention on Human Rights (Article 12), the African Charter on Human and Peoples’ Rights (Article 8(
5 Sardar Farooq Ahmed Khan Leghari Vs. Federation of Pakistan [PLD 1999 SC 57] at page 191; AlJehad Trust Vs. Federation of Pakistan [PLD 1997 SC 84]
7 Holy Quran (10:99)
8 Holy Quran (2:256)

https://www.refworld.org/cases,PAK_SC,559e57644.html

A newspaper had published stories that called attention to police and Army brutality. The government ordered the newspaper shut down, and the Supreme Court of Sri Lanka upheld the closure. In so doing, the Court rejected international freedom of expression norms. ''The Court will respect the [Universal] Declaration [of Human Rights] and the Covenants but their legal relevance here is only in the field of interpretation.'' See also Chelliah v. Parange, 2 Sri Lanka Law Reports 132 (1982) (constitutional guarantee of right to personal liberty ''is based upon Article 9 of the Universal Declaration of Human Rights''); Perera v. Attorney-General, S.C. Nos. 107-109/86, slip op. (1986) (unreported) (Sri Lanka) (referring to the UDHR's permissible limitations on rights in interpreting the constitutionally guaranteed freedom of speech); Velmurugu v. Attorney-General, 1 Sri Lanka Law Reports 406 (1981), Thadchanamoorthi v. Attorney-General, F.R.D. (1) 129 (Sri Lanka) (discussing the interpretation by the European Commission and Court of Human Rights regarding the scope of governmental libaility for ill-treatment and torture).

(found in ''The Status of the Universal Declaration of Human Rights in National and International Law'' by Hurst Hannum, Georgia Journal of International and Comparative Law, Vol. 25, Nos. 1&2, Fall 1995/Winter 1996, p 300)

The petitioner had participated in a radio program on a government-controlled radio station. The petitioner, on air, had asked controversial questions. The petitioner claimed that, following these questions, the program was altered so that no controversial material would be broadcast, an arbitrary violation of his right to freedom of speech under the Sri Lankan constitution. The Supreme Court of Sri Lankan sided with the petitioner and called the government’s actions “sudden and arbitrary”. The Court cited the European Court of Human Rights but called certain of its decisions “not helpful” because its free expression provisions differed from their correlates in the Sri Lankan Constitution. Nevertheless, the Court ruled against the government interference.

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A case was decided on June 2, 2010, by the Cambodian Supreme Court regarding the legality of the applicant’s criminal conviction by lower courts. The Court upheld the conviction of the defendant by the lower court. The defendant was convicted of defamation of Prime Minister Hun Sen. There is not yet a readily available interpretation or documentation of the case in English. If such material arises (as it probably will sometime, as it is a much-discussed case in Cambodia), it will be good to watch if the Court cites international human rights norms, such as UDHR, vis-à-vis the burden of proof, etc.

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The Court of Final Appeal of Hong Kong allowed for greater flexibility in when public protests could be held by limiting the power of the police to reject applications for such protests. In so holding, the Court relied on the ICCPR.

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The defendants had participated, in Hong Kong, in a pro-democracy in China demonstration. They carried a defaced PRC flag, as well as a defaced Hong Kong SAR flag. The demonstrators were subsequently charged with violating section 7 of the National Flag and National Emblem Ordinance and section 7 of the Regional Flag and Regional Emblem Ordinance. Found guilty, the defendants appealed to the Court of Appeal and won. The government then appealed to the Court of Final Appeals, the highest court in Hong Kong. The Court of Final Appeal ruled in favor of the government. In so doing, the Court applied and interpreted the human rights norms in the ICCPR governing freedom of expression. Protection of national (PRC) and regional (HKSAR) flags was found to be provided for by the ICCPR under its “public order” provisions, found in Article 19. Thus, the two ordinances by which the defendants had been convicted were constitutional. The CFA held that national and regional flags are important symbols of the PRC and the HKSAR, respectively, and as such societal and community interests were involved that had to be taken into consideration. Although the Court considered such limits on flag desecration as limits on the constitutionally-protected right of free speech, these limits were narrow, and the defendants could have expressed themselves in other ways. Thus, the “necessity” and “proportionality” tests of international human rights norms had been satisfied.

Although the CFA upheld the flag desecration laws, they did so in consideration of international human rights norms, here, the ICCPR, which had been incorporated into the Bill of Rights. Thus, any violation of the ICCPR, an international human rights norm, violated the Bill of Rights, which was domestic law in Hong Kong. In so doing, the CFA showed that the courts in Hong Kong were bound by such international norms. Thus, the courts had the power to review legislation and determine whether it was constitutional on the basis of certain human rights standards. This holds true for executive actions as well.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 9-12)

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The appellant went to a police officer's home on a weekday morning while the police officer was sleeping after coming off of a night shift. The appellant knocked on the police officer's door and the police officer answered. The appellant then stood in the street playing a guitar and protesting the police officer's role in an earlier search warrant incident. After he refused to cease, he was arrested after the arrival of other officers. The appellant challenged this, and thus the issue was whether the appellant's fundamental right to freedom of expression afforded him greater legal weight in court than the police officer's right to privacy.

In determining whether privacy is a "right" or a "value", the Supreme Court of New Zealand noted that New Zealand was committed to the ICCPR. The ICCPR allows for restrictions on the freedom of expression if they are reasonable, and if the Court were to follow the ICCPR here, the appellant's appeal could have been denied. However, the Court ruled in favor of the appellant by favoring the NZ Bill of Rights, which does not allow for such restrictions on the right to freedom of expression. Thus, the Court went above and beyond the ICCPR in providing for freedom of expression, though by doing so the right to privacy was somewhat infringed. The Court also cited the UDHR, the ECHR, the CRC, the Charter of Fundamental Rights of the European Union, the American Convention on Human Rights, the Cairo Declaration on Human Rights in Islam. The Court also affirmed that there is a right to privacy in New Zealand.

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The Public Offices Election Law prohibited door-to-door canvassing for political candidates. Lower courts had allowed this law to continue, though acknowledging that it infringed on the constitutionally-protected right to freedom of speech. The courts had stated that the Constitution allowed for a certain amount of infringement, and that the right to freedom of speech was not inviolable. The Supreme Court of Japan agreed and allowed the law. In so doing, the Court cited the ICCPR and said that the law did not violate Articles 19 and 25 of the ICCPR.

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The Supreme Court of Japan, showcasing its tendency of extreme deference to the executive, overturned a lower court decision regarding criminal law. The lower court decision had held that, given the plaintiff's background in a political organization, it could not be said that the government manifestly lacked a reason to arrest him subsequent to his refusing five times to be interrogated voluntarily. The plaintiff had cited the ICCPR in its arguments, but the Court did not respond to this in its very short opinion. The Court did not even give a reason for failing to deal with the plaintiff's claims. Although this practice of failing to deal with a claim when rejecting it is not unusual in Japanese jurisprudence, the Supreme Court seemed to be sending a signal to lower courts, who had before then shown a tendency to broaden the scope of individuals' rights in Japan through recognition of rights provided in the ICCPR. The signal was that the Supreme Court would not necessarily be quick to broaden such rights, even if the judiciary as a whole seemed to be, and that international law (here, the ICCPR) would not necessarily concern the Court if it wanted to rule a particular way.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 480)