The mother of all freedoms (Final Part)
In countries around the world, governments resort to legal sanctions to silence journalists who are investigating and exposing high-level government corruption, human rights abuses by security forces or who are simply questioning the wisdom of various government policies.
Criticism of individual members of government or of other public figures is also often stifled, even where such criticism clearly relates to their public role. The public, however, has a right to know about such matters, which are at the core of democratic debate. It is, therefore, not legitimate for governments to stifle discussion on these types of issues.
There are many areas in which laws can be abused to stifle legitimate criticism; I propose to mention only two of the most significant, laws to protect individual reputation, or defamation law, and laws on national security.
As I mentioned previously, certain restrictions to freedom of expression are accepted under international law, and protection of reputations and of national security are two such areas. However, in many cases, governments resort to an excessively broad application of these restrictions, so that they do not meet the test of 'necessity' as required under international law.
Protection of reputation
It is, of course, legitimate to allow people to protect their reputation and defamation laws exist around the world for this purpose. It is vital, however, that such laws be narrow in scope and take fully into account the requirements of democratic debate and freedom of expression.
The appropriate balance between the right to freedom of expression and protection of reputations is set out in the Article 19 publication, Defining Defamation , which has been endorsed, among others, by the UN Special Rapporteur on Freedom of Opinion and Expression.
Government, public officials and other public figures should not be able to use defamation actions to stifle debate about matters of public interest, even where such matters may be embarrassing or may reflect badly upon them, although in practice many do.
In relation to all matters affecting government, the public has a right to know. Freedom of expression requires that there be virtually unlimited and extremely robust debate in relation to public, political and governmental processes, policies and practices.
In the interests of such debate, governments, public bodies and publicly-owned corporations should be precluded from taking action to protect their 'reputation'. Only natural persons have a legitimate interest in their reputation and only they should be able to bring defamation actions.
When a natural person is, however, a member of the government, a public official or a public figure, even a member of the royal family, the right to reputation must be balanced with the right of the public to know and to debate the activities, policies and practices of such people in their public role.
There is a fundamental difference between criticising the prime minister for not doing enough to tackle corruption and criticising him for not being a sufficiently loving father. In the former case, the public's right to debate such an issue must be paramount.
Without doubt, it can be difficult to strike the correct balance. But provisions which give enhanced protection to the reputations of government and public figures reverse the assumption that, in a democracy, such people are accountable to the public.
Individual members of the government and other public figures should be required to tolerate a higher degree of criticism than ordinary members of the public. They should not use defamation actions to silence their political critics.
This principle has been established in a long series of cases before international bodies and is fundamental if the public is to be able to receive information and opinions about those who govern them and who spend public money.
Another problem with defamation laws is awards of excessive damages. It is clear that the guarantee of freedom of expression also applies to the quantum of damages applied in defamation actions.
Excessive damages have a chilling effect on freedom of expression. Hence in the Tolstoy case in 1995 the European Court on Human Rights struck down a 1.6 million award by a UK jury as oppressive and violated the freedom of expression provision in the European Convention. The trend now in many countries is to cap the awards.
National security restrictions
It is clear that freedom of expression may be restricted if national security is genuinely threatened. However, this concept is frequently abused to limit criticism of officials and to hide government corruption or wrongdoing.
It is important that the law clearly and narrowly define what is meant by national security. Such definition should recognise that national security restrictions relate to protection of the interests of the nation rather than those of a particular government or branch of the military or security services.
In these circumstances the protection of the national security interest should always be balanced against the public's right to know and to debate issues of public concern.
In this regard the words of Sir Winston Churchill in 1938 are noteworthy. He said of the Official Secrets Act (OSA):
"The Official Secrets Act was devised to protect the national defences and ought not to be used to shield ministers who may have neglected the national defences. It ought not to be used to shield ministers who have strong personal interests in concealing the truth about matters from the country".
The Johannesburg Principles on National Security and Freedom of Expression, produced by Article 19 and endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, seek to define a legitimate national security interest.
According to these principles, a national security restriction is not legitimate unless its genuine purpose and demonstrable effect is to protect the country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force.
National security restrictions are specifically not legitimate if their purpose and effect are to protect the government from embarrassment or exposure of wrongdoing, to conceal information about the functioning of public institutions, or to entrench a particular ideology.
A publication or broadcast should only be treated as a threat to national security where it is clearly intended to incite imminent violence, it is likely to incite such violence and there is a direct and immediate connection between the expression and the likelihood of such violence.
It is clearly not legitimate to charge a journalist with an offence merely for suggesting a different form of government or for alleging corruption in the government or military. Indeed, none of the examples given above would satisfy these criteria. It is vital that governments recognise that they must, at all times, act in the interests of the public.
Furthermore, there must be a clear link between a given statement and the risk of harm to national security before that statement may legitimately be subject to sanction. Courts called upon to interpret restrictions on freedom of expression must bear these principles in mind. Restrictive legislation on fundamental rights must be restrictively interpreted.
Right to peaceful assembly
The right to peaceful assembly is an intrinsic part of the right to freedom of expression. Unless citizens are allowed freely to assemble peacefully and exchange expression of thoughts and opinions, freedom of expression would be meaningless. This right too is protected under international law.
Article 20 of ICCPR expressly calls upon member states to recognise this right. Restriction can only be imposed under law "which are necessary ... in the interests of national security or public safety, public order, the protection of public health or morals on the protection of the rights and freedom of others".
On Dec 9, 1998, on the eve of the 50th anniversary of the Universal Declaration of Human Rights (UDHR), the UN General Assembly adopted a Declaration commonly known as the 'Declaration on Human Rights Defenders'. This instrument has vested in every individual or group of individuals the duty to strive for the promotion and protection of human rights.
It further obligates the State to provide the means for the expression of this right including the right to peacefully oppose acts or omissions attributable to the state that result in human rights violations.
The Malaysian scenario
In countries around the world, governments resort to legal sanctions to silence journalists who are investigating and exposing high-level government corruption, human rights abuses by security forces or who are simply questioning the wisdom of various government policies.
Criticism of individual members of government or of other public figures is also often stifled, even where such criticism clearly relates to their public role. The public, however, has a right to know about such matters, which are at the core of democratic debate. It is, therefore, not legitimate for governments to stifle discussion on these types of issues.
There are many areas in which laws can be abused to stifle legitimate criticism; I propose to mention only two of the most significant, laws to protect individual reputation, or defamation law, and laws on national security.
As I mentioned previously, certain restrictions to freedom of expression are accepted under international law, and protection of reputations and of national security are two such areas. However, in many cases, governments resort to an excessively broad application of these restrictions, so that they do not meet the test of 'necessity' as required under international law.
Protection of reputation
It is, of course, legitimate to allow people to protect their reputation and defamation laws exist around the world for this purpose. It is vital, however, that such laws be narrow in scope and take fully into account the requirements of democratic debate and freedom of expression.
The appropriate balance between the right to freedom of expression and protection of reputations is set out in the Article 19 publication, Defining Defamation , which has been endorsed, among others, by the UN Special Rapporteur on Freedom of Opinion and Expression.
Government, public officials and other public figures should not be able to use defamation actions to stifle debate about matters of public interest, even where such matters may be embarrassing or may reflect badly upon them, although in practice many do.
In relation to all matters affecting government, the public has a right to know. Freedom of expression requires that there be virtually unlimited and extremely robust debate in relation to public, political and governmental processes, policies and practices.
In the interests of such debate, governments, public bodies and publicly-owned corporations should be precluded from taking action to protect their 'reputation'. Only natural persons have a legitimate interest in their reputation and only they should be able to bring defamation actions.
When a natural person is, however, a member of the government, a public official or a public figure, even a member of the royal family, the right to reputation must be balanced with the right of the public to know and to debate the activities, policies and practices of such people in their public role.
There is a fundamental difference between criticising the prime minister for not doing enough to tackle corruption and criticising him for not being a sufficiently loving father. In the former case, the public's right to debate such an issue must be paramount.
Without doubt, it can be difficult to strike the correct balance. But provisions which give enhanced protection to the reputations of government and public figures reverse the assumption that, in a democracy, such people are accountable to the public.
Individual members of the government and other public figures should be required to tolerate a higher degree of criticism than ordinary members of the public. They should not use defamation actions to silence their political critics.
This principle has been established in a long series of cases before international bodies and is fundamental if the public is to be able to receive information and opinions about those who govern them and who spend public money.
Another problem with defamation laws is awards of excessive damages. It is clear that the guarantee of freedom of expression also applies to the quantum of damages applied in defamation actions.
Excessive damages have a chilling effect on freedom of expression. Hence in the Tolstoy case in 1995 the European Court on Human Rights struck down a 1.6 million award by a UK jury as oppressive and violated the freedom of expression provision in the European Convention. The trend now in many countries is to cap the awards.
National security restrictions
It is clear that freedom of expression may be restricted if national security is genuinely threatened. However, this concept is frequently abused to limit criticism of officials and to hide government corruption or wrongdoing.
It is important that the law clearly and narrowly define what is meant by national security. Such definition should recognise that national security restrictions relate to protection of the interests of the nation rather than those of a particular government or branch of the military or security services.
In these circumstances the protection of the national security interest should always be balanced against the public's right to know and to debate issues of public concern.
In this regard the words of Sir Winston Churchill in 1938 are noteworthy. He said of the Official Secrets Act (OSA):
"The Official Secrets Act was devised to protect the national defences and ought not to be used to shield ministers who may have neglected the national defences. It ought not to be used to shield ministers who have strong personal interests in concealing the truth about matters from the country".
The Johannesburg Principles on National Security and Freedom of Expression, produced by Article 19 and endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, seek to define a legitimate national security interest.
According to these principles, a national security restriction is not legitimate unless its genuine purpose and demonstrable effect is to protect the country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force.
National security restrictions are specifically not legitimate if their purpose and effect are to protect the government from embarrassment or exposure of wrongdoing, to conceal information about the functioning of public institutions, or to entrench a particular ideology.
A publication or broadcast should only be treated as a threat to national security where it is clearly intended to incite imminent violence, it is likely to incite such violence and there is a direct and immediate connection between the expression and the likelihood of such violence.
It is clearly not legitimate to charge a journalist with an offence merely for suggesting a different form of government or for alleging corruption in the government or military. Indeed, none of the examples given above would satisfy these criteria. It is vital that governments recognise that they must, at all times, act in the interests of the public.
Furthermore, there must be a clear link between a given statement and the risk of harm to national security before that statement may legitimately be subject to sanction. Courts called upon to interpret restrictions on freedom of expression must bear these principles in mind. Restrictive legislation on fundamental rights must be restrictively interpreted.
Right to peaceful assembly
The right to peaceful assembly is an intrinsic part of the right to freedom of expression. Unless citizens are allowed freely to assemble peacefully and exchange expression of thoughts and opinions, freedom of expression would be meaningless. This right too is protected under international law.
Article 20 of ICCPR expressly calls upon member states to recognise this right. Restriction can only be imposed under law "which are necessary ... in the interests of national security or public safety, public order, the protection of public health or morals on the protection of the rights and freedom of others".
On Dec 9, 1998, on the eve of the 50th anniversary of the Universal Declaration of Human Rights (UDHR), the UN General Assembly adopted a Declaration commonly known as the 'Declaration on Human Rights Defenders'. This instrument has vested in every individual or group of individuals the duty to strive for the promotion and protection of human rights.
It further obligates the State to provide the means for the expression of this right including the right to peacefully oppose acts or omissions attributable to the state that result in human rights violations.
The Malaysian scenario
In her statement to commemorate World Press Freedom Day last year Mary Robinson said, amongst others: " in the past few months alone, newspapers in Iran, Malaysia and Central Africa have found closure because their reporting upset powerful people".
In October 1998 the UN Special Rapporteur on Freedom of Opinion and Expression undertook a mission to Malaysia. He presented his report to the UN Commission on Human Rights in 1999.
In his concluding remarks he expressed, amongst others, concern, "at the extent of the limitations on the right to freedom of opinion and expression in the national legislation in Malaysia".
With regard to the laws to protect the security of the State he said he was "compelled to conclude that certain wording in and the implementation of these laws, in particular the Internal Security Act (ISA), the Sedition Act and the Printing Presses and Publication Act, fail to offer adequate protection of the right to freedom of opinion and expression as provided for by applicable international human rights law, including Article 19 of the Universal Declaration of Human Rights".
Among his recommendations to the government he called for the repeal of the ISA and amendments to the Printing Presses and Publication Act, the Sedition Act and the OSA. He also called for the repeal of regulations on annual licensing of newspapers "... in order to ensure that any registration requirements serve an administrative purpose only and one not used to impose restrictions on the media outside the scope of Article 19 of the Universal Declarations on Human Rights".
He called on the government to "... align its national law with the provisions of international law relating to freedom of opinion and expression". He also urged the government to respect the right of Malaysians to hold peaceful demonstrations and assemblies.
These recommendations from a UN expert went to deaf ears. The government's brief response to the report at the Commission session was apathetic. The only government reaction here came from the then minister in charge of law.
He was reported to have said that the Special Rapporteur's report was all a lie. That is the kind of scant respect the government has for international law and UN standards. Yet this is the government which aspires and seeks high offices in international organisations.
It held the Presidency of the General Assembly and the Chair of the Human Rights Commission. It took a seat in the Security Council. Yet it has not ratified any of the main UN treaties on human rights.
Conclusion
Democracy with all its imperfections is still seen as the best system of government. It is not realised just by the party in power submitting itself to periodic elections. The government's performance in between elections is equally important or even more.
Democracy is often described as a government of the people, by the people and for the people. What this entails simply is that the people should at all times be in control of the government and not vice-versa.
In this context a vibrant, independent free press is indispensable. Only such a media can extract accountability and transparency from the government. When there is accountability and transparency, good governance across the spectrum of the government and all its institutions will be in place.
When the press is muzzled or restricted, governmental lawlessness will continue unchecked. A government fearful of such an independent free press is not worthy of the trust of the people.
Let us salute the thousands of courageous journalists all over the world who sacrificed so much in one way or another in defence of this mother of all freedoms.
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.
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