On May 3, 1991 participants in the United Nations and Unesco at a Seminar on 'Promoting an Independent Pluralistic African Press' held in Windhoek, Namibia adopted a declaration which is now commonly known as the 'Windhoek Declaration'.

Next to the Universal Declaration on Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), the Windhoek Declaration is a landmark international instrument in particular regard to the freedom of the press.

Following this Declaration and on the recommendation of the United Nations Economic and Social Council (Ecosoc) in December 1993, the UN General Assembly declared May 3 as World Press Freedom Day.

The first three principles of this Declaration are profound and relevant to the concerns of many in Malaysia:

1. Consistent with article 19 of the Universal Declaration of Human Rights, the establishment, maintenance and fostering of an independent, pluralistic and free press is essential to the development and maintenance of democracy in a nation, and for economic development.

2. By an independent press, we mean a press independent from governmental, political or economic control or from control of materials and infrastructure essential for the production and dissemination of newspapers, magazines and periodicals.

3. By a pluralistic press, we mean the end of monopolies of any kind and the existence of the greatest possible number of newspapers, magazines and periodicals reflecting the widest possible range of opinion within the community.

In their joint message on this occasion for this year the UN Secretary General, Mr Kofi Annan and the UN High Commissioner for Human Rights, Mrs Mary Robinson, said, amongst others:

"Freedom of expression is always fragile, and can never be taken for granted. In many parts of the world today it is threatened by political, economic, financial, military, religious or even criminal interests. Journalists whose work challenges such interests are liable to suffer intimidation, violence, exile, prison and even execution or simply murder."

They went on:

"Experience has shown that even the most heinous regimes can gain popular support if they manage to muzzle the media, or to manipulate it to arouse fear and hatred among their own citizens,".

International standards on freedom of expression

The UDHR is generally considered to be the flagship statement of international human rights, binding on all states as a matter of customary international law. It guarantees the right to freedom of expression in Article 19 in the following terms:

'Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.'

Although Malaysia has not ratified the ICCPR, over 145 States have and it is widely considered to be an authoritative elaboration of the UDHR. The ICCPR is an international treaty which places formally legally binding obligations on those states which are parties to it to uphold these rights, including the rights to freedom of opinion and expression. Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.

2. 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.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order ( ordre public ), or of public health or morals.

Further, the ICCPR, in Article 2, places a dual obligation on states to:

Adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant and to

Ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy ...

States' compliance with these obligations is monitored directly by the United Nations Human Rights Committee (HRC), a body established by the ICCPR comprising 18 independent experts nominated by the states party to the Covenant. The HRC's role is both to consider periodically the reports of the states parties on their application of the Covenant, when it may advise on appropriate legal or other reform, and to adjudicate on complaints brought by individuals against states under the (first) Optional Protocol procedure.

The importance of freedom of expression

International bodies and courts have made it very clear that freedom of expression is one of the most important human rights. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which stated:

'Freedom of information is a fundamental human right and ... the touch-stone of all the freedoms to which the United Nations is consecrated.'

As this resolution notes, freedom of expression is both fundamentally important in its own right and also key to the fulfilment of all other rights. It is sometimes described as the mother of all freedoms. The protection and implementation of other rights depend on freedom of expression in two ways.

It is only in societies where the free flow of information and ideas is permitted that individuals will be aware of their rights and seek to vindicate them. In addition, freedom of expression is essential if violations of human rights are to be exposed and challenged.

The point is that where the free flow of information and ideas is respected and encouraged and where citizens have sufficient information to be able to speak out, that they can influence the events unfolding around them.

This link between freedom of expression and the enjoyment of other human rights can be seen across the whole range of rights with which international law concerns itself. Serious human rights abuses of all kinds, ranging from torture and disappearances to discrimination, lack of access to proper health care and education, government corruption and economic mismanagement can only be effectively challenged when citizens have access to the widest possible sources of information, can make up their own minds about issues which concern them, can make their views known, listen to the views of others, challenge accepted orthodoxies, participate in democratic debate and influence events.

Freedom of expression is therefore at the core of a proper understanding of democracy and human rights, and respect for its requirements is a precondition of proper respect for human rights in general.

The right to express oneself freely is itself important in a number of ways, as a core element of human dignity, to promote the truth through a 'marketplace of ideas' and as a vehicle for participation. It is this latter aspect of freedom of expression that has been particularly emphasized in the international jurisprudence. For example, the Inter-American Court of Human Rights stated:

'Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion ... It can be said that a society that is not well informed is not a society that is truly free.'

This has repeatedly been affirmed by both the UN Human Rights Committee and the European Court of Human Rights. The following quotation of the European Court now features in almost all its cases involving freedom of expression:

'Freedom of expression constitutes one of the essential functions of a democratic society, one of the basic conditions for its progress and for the development of every man.'

DATUK PARAM CUMARASWAMY is the United Nations Special Rapporteur for the Independence of Judges and Lawyers. He presented the above paper at a forum in conjunction with World Press Freedom Day organised by the Sin Chew Jit Poh Chinese daily recently.