Senior lawyer Thishya Weragoda has raised concerns over the recent arrest of an individual for singing and sharing a distorted version of Rohana Beddage’s Soorya Mangalya New Year song on social media.
A 31-year-old Excise officer from Wariyapola was arrested yesterday over the incident.
Commenting on the incident, Senior lawyer Thishya Weragoda pointed out that it was not normal to arrest people for such acts in the guise of maintaining morality, adding that it was not the business of the State.
“Section 287 of the Penal Code says “Whoever sings, recites, or utters in or near any public place, any obscene song, ballad, or words to the annoyance of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine or with both.” To my mind, I do not see any criminal offence in this situation. The lyrics created were for obviously satirical and humorous purposes,” he further pointed out.
Senior lawyer Thishya Weragoda warned that allowing to accept the extreme or narrowest of views on ‘obscenity’ as the contemporary community standard, as attempted by the Police would only hold the rest of the nation in ransom to such views and prevent the progression of the freedom of expression.
The full statement of Senior lawyer Thishya Weragoda;
Anyone who has been to a big match knows that we distort all songs into profanity and sing them happily for all and sundry to hear. Anyone who has been to a local university knows of the profane version of the Jayamangala Gatha which is sung when two students start dating.
And that is normal in a normal society. What is not normal is arresting people for such acts in the guise of maintaining morality, which is not the business of the State, unless, of course, we are either Saudi Arabia or Iran. We have seen this sort of behaviour from the ‘Moral Police’ of the Sri Lanka Police, in the past, when the Pahanthudawa couple and Pidurangala boys were arrested.
It was reported today that a complaint to the Police made regarding the publication of a distorted version of an Avurudu song has resulted with the arrest and production of a person before the Court. The swift nature in which the Police have acted in arresting the individual leaves much to be desired. Maybe we should get the police to sit and listen to some songs by ‘Weird Al Yankovic” so that they understand what they are really doing.
Section 287 of the Penal Code says “Whoever sings, recites, or utters in or near any public place, any obscene song, ballad, or words to the annoyance of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine or with both.”
To my mind, I do not see any criminal offence in this situation. The lyrics created were for obviously satirical and humorous purposes. Clearly it had no intention to cause annoyance to others. Secondly, whether a post on a private page of a person could amount to a public place is another question that requires a deeper question. For me, if at all there may be a copyright infringement action, but that too has very slim chances of success. However, we also do know that our police are very good at creative writing when it comes to tendering B-Reports to the Magistrate’s Courts.
Our Constitution provides for the freedom of thought and speech. The freedom of speech is to be exercised without any value attached to the quality of the words spoken, or in this instance what is typed.
Thus, the real test is whether anyone was annoyed by the publication. We must all remember that to “annoy” another is a subjective matter. Thus, in law, we have created an imaginative reasonably prudent person called the “reasonable man” who objectively determines whether something is right or wrong in the eyes of ‘contemporary community standards’.
These community standards are not extreme in one way or another, – not extremely hard-line and conservative nor extremely liberal. The Police seem to be implying that an extremely narrow and hardline should be used. To do so would mean that the society is not progressive and is left conservative not leaving room for creativity.
In Millar v. California (1972) 413 U.S. 15 it was held that ‘community standards’ do not refer to a national standard, ‘the average person, applying contemporary community standards’ is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one.” Brockett v. Spokane Arcades Inc (1985) 472 U.S. 491 it was held that ‘obscene’ material is “material whose predominate appeal is to “a shameful or morbid interest in nudity, sex, or excretion.”
We must keep in mind that allowing to accept the extreme or narrowest of views on ‘obscenity’ as the contemporary community standard, as attempted by the Police would only hold the rest of the nation in ransom to such views and prevent the progression of the freedom of expression. In Ashcroft v. American Civil Liberties Union (2002) 535 U.S. 564 it was held that “to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.” Thus, we must denounce the attempts to hold the rest of the nation for ransom to the whims and fancies of some extremely conservative views held by individual police officers.
I believe that it is time, for once and for all our Courts too, emphatically to take the view as expressed by the US Supreme Court as far back as 1966 in Mishkin v. State of New York (1966) 383 U.S. 502 that “I wish once more to express my objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this Court what pornography (whatever that means) is too hardcore for people to see or read.”
So maybe it’s time that the police finally learned their lesson and stopped interfering with issues of morality. (Newswire)
