Freedom of Speech not an unfettered but within limits in South Asia

indexBy Jivesh Jha–

Although the member states of South Asian Association for Regional Cooperation (SAARC) guarantee freedom of speech and of press, the fundamental documents of these developing countries assert that freedom to express oneself is not an unrestricted right.

Even as the Constitutions of SAARC nations assert that freedom of speech is essential for proper functioning of popular government, they are quick to declare that right to offend others is not included within the purview of right to express oneself. A look at what has constrained and qualified that right, by way of law, religion and politics in South Asia.

The Constitution of India, the eldest charter in the region, envisages that every citizen has right to express one’s own convictions and opinions. In its Article 19(1) (a), the charter offers a blanket power for their citizen to freely propagate their ideas by words of mouth, writing, painting, pictures or any other mode. It encompasses the expression of one’s ideas through any communicable medium—be it twitter, facebook, or any other social networking websites–or visible representation, such as gesture, sign and the likes.

Standing on the same page, the newest Constitution of the world, which was unveiled on Nepali soil on September 20 last year, provides that ‘every citizen shall have freedom of opinion and expression,’ Article 17(2) (a).

It’s a well settled principle that the right to propagate and publish the views of other people is within the meaning of freedom of speech and expression, otherwise this freedom would fail to include freedom of press.

Expressing seriousness on freedom of press, the Nepali charter scripts another provision under Article 19 which slams any form of censorship on media outlets. “There shall be no prior censorship of publications and broadcasting, or information dissemination, or printing of any news item, editorial, article, feature, or other reading material, or the use of audio-visual material by any medium, including electronic publication, broadcasting and printing,” reads Article 19(1) which begins with a marginal note of ‘Right to communication.’

When asked whether Nepali laws irrigate the right of free speech, Laxman D. Pant, a media expert in Nepal, said, “Nepal’s law guarantees right to freedom of expression. There are about a dozen of specific laws protecting media freedom with some reasonable restrictions. However, the implementation of such legislations is still an uphill task.”

He was of the opinion that any debates coming from writing or expression should not be dealt criminally as ‘it’s a civil wrong (tort).’ “Interrogating a citizen or an individual and then sending him behind the bars just because of his speech and expression is simply not pragmatic, neither constitutional,” added he.

“Neither we have any express enactment nor has the parliament issued any guidelines to deal with questions arisen from social networking sites.”

Noted, the criminal proceeding was initiated against some youths simply because they had criticized the incumbent Prime Minister KP Oli on facebook and twitter.

Similarly, the Constitution of Pakistan also slams any moves confronting with freedom of press. In its Article 19, the Constitutional Act makes it clear that every citizen of Pakistan would have right form their own belief and communicate them freely to others.

However, the Constitution of Sri Lanka also shares a similar story like that of Pakistan, Nepal and India. Confident of watering people’s right to know, the Sri Lankan Constitution provides that right to know news and information regarding governmental actions and non-governmental actions through the medium of publication is included under freedom of speech, Article 14(1) (a).

Much like other South Asian charters, the Constitution of Bhutan ensures that every Bhutanese citizen would have the right to freedom of thought, opinion and expression. “There shall be freedom of the press, radio and television and other forms of dissemination of information, including electronic,” reads Article 7(5).

On the domestic front in South Asia, the Maldivian charter is at even to envisage that the freedom of speech would be of little value in absence of publication of information. The statute confers power to every citizen of the country to exercise ‘right to freedom of the press, and other means of communication, including the right to espouse, disseminate and publish news, information, views and ideas,’ Article 28.

Explaining that the protection of news source is of utmost importance, the Maldivian instrument provides “No person shall be compelled to disclose the source of any information that is espoused, disseminated or published by that person,” Article 28.

“It’s accepted on all hands that a journalist should protect his source. The whistleblowers will not talk to media persons if they have a reason to believe that their details can just be handed over. So, the sources should be protected,” opined Dr Nidhi Saxena, faculty of International Law at Sikkim Central University, Gangtok, while showing satisfaction with the Constitutional provision of Maldives.

She was of the view that there should be a proper adjustment between right to privacy and right to information. However, the attempts should be made to ensure that the larger interest prevails over the individual interest, while striking a balance between right to privacy and right to information,” added she.

Akin to Maldives, another Islamic country of Bangladesh provisions that the freedom of thought and conscience should be interpreted in a broader canvas. Like other statutes, the charter guarantees freedom of press and of speech & expression to every citizen, Article 39.

Meanwhile, the Afghani Constitution also confirms that the freedom of speech and opinion is inviolable and its guaranteed for every citizen of the Islamic state of Afghanistan. Like other Asian nations, including India and Nepal, the charter slams every activity that has potential to impose pre-censorship over media outlets, Article 34. It has also been provisioned that right of freedom of speech can be exercised through making opinion, writing, illustrations as well as other means.

However, the legislative intent of the South Asian states is very clear: ‘Citizen shall have freedom to express oneself, but within limits.’ The legislatures of these developing nations have clarified that freedom of speech has constitutional limitations attached to it and this right cannot be exercised in an absolute sense.

 

What are those qualifiers?

The Constitutions of SAARC states assert that there should not be a narrow interpretation of freedom of speech, but that does not mean that there cannot be any constriction.

  • Religion:

The Islamic states—Afghanistan, Maldives, and Pakistan—have asserted that freedom of speech and expression is subject to any reasonable restrictions imposed by law in the interest of glory of Islam. “Everyone has the right to freedom of thought and the freedom to communicate opinions and expression in a manner that is not contrary to any tenets of Islam,” reads Article 27 of Maldivian Constitution. The similar restrictions have been provisioned in the charters of Afghanistan and Pakistan under Article 3 and 19, respectively.

When asked whether it’s a healthy practice and as per international humanitarian laws, Sikkim Central University Professor Dr Saxena further said, “Everyone should have right to criticize what he feels bad. The freedom of speech is not to praise only but also to criticize. The conformists always try to lock those beaks opening against them. It’s an unhealthy practice to lock those beaks which are not buying your words. Neither its as per humanitarian law, nor its in the line with international conventions.”

However she was quick to add that one must not be allowed to hurt the sentiments or cause public discord under the garb of freedom of speech and expression.

“Though the hold of religion is very strong in Islamic nations, there should be given rooms for criticism to the ill-practices prevalent in the name of religion,” said Dr Saxena, adding “Although the hold of religion is very strong in Indian society as well, you have right to criticize it. And this right has been beautifully exercised by Indian cinemas. However, you cannot go offending others.”

  • National Sovereignty and integrity

The Constitutions unanimously believe that ‘interests of sovereignty and integrity, the security of state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, or harmonious relations, defamation or incitement to an offence’ will be paramount and freedom of speech will not be unconditional.

The scholars argue that the freedom of speech and expression has to have inherent limitations. “The provisions relating to freedom of opinion and expression in Nepali charter are quite broad with justifiable restrictions,” said Dr Nirmal Mani Adhikary, faculty of Journalism at Kathmandu University, Nepal.

However, the political commentators are of the view that the Nepali charter has embarked a step ahead in curtailing the freedom of speech and expression by envisaging a long list of clusters of restrictions.

“The vague provisions limiting the freedom of expression and opinion guaranteed under Article 17 (2)(1) provides a deliberate space and pretext for the state to formulate regulatory laws that can stifle individual as well as press freedom. The additional limitations to the Article 19, especially targeting the media can also be abused by autocratic government to suppress the dissenting voice,” argued Anurag Acharya, an eminent Kathmandu-based political analyst.

The provision of Article 17(2)(1) reads as “Nothing in section (a) shall be deemed to prevent the making of an Act to impose reasonable restrictions on any act which may undermine the nationality, sovereignty, independence and indivisibility of Nepal, or federal units, or jeopardizes the harmonious relations subsisting among the people of various caste, ethnicity, religion, or communities, or incites racial discrimination, or untouchability, or disrespects labor, or any act of defamation, or contempt of court, or an incitement of offence, or is contrary to decent public behavior or morality.”

In the similar vein, the limitation envisaged under Article 19 reads as , “Provided that nothing shall be deemed to prevent the making of laws to impose reasonable restriction on any act which may undermine the nationality, sovereignty, and indivisibility of Nepal, or the good relations between federal units, or jeopardizes the harmonious relations subsisting among different caste groups and tribes, or communities, or an act of treason, or defamation of social dignity of individuals through the publication and dissemination of false material, or contempt of court, or material that incites criminal offence, or an act that is contrary to decent public behavior and morality, or disrespects labor, or incites untouchability or gender discriminations.”

The penal Codes of these Asian countries have scripted punishments for defamation and other acts and omissions which have potential to jeopardize the harmonious relations. For more details, please visit: http://nepalforeignaffairs.com/comparative-study-of-penal-provisions-of-saarc-countries/

  • Offensive Contents

The statutory laws of South Asian nations provisions that the social media sites and news disseminating outlets should manually screen and censor all potentially offensive contents or face the music. The statutes unanimously argue that insulting to one or another could provoke unrest in the society.

On a separate context, the Afghani statute envisions that “Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law,” Article 34. However, this provision has potential to suppress the freedom of press in one way or the other.

  • Only for citizens

The Constitutions of SAARC states provide this right exclusively to their citizen. The fundamental documents have unanimously laid down a broader canvas for freedom of speech and expression but with reasonable restrictions.

“The freedom of speech and expression is one of the major fundamental rights (FR) in any democratic countries. And, its beyond any iota of doubt that the freedom of opinion and expression is an ornament of democracy. As its one of the major FR, it cannot be made available to a non-citizen. In absence of a broader understanding, a non-citizen might lose his balance while commenting on national policies and his comment might have potential to jeopardize the harmony in the society. However, some other rights like right to life and liberty, or right to criminal justice and equal protection before law should be given to a non-citizen,” said Alok Kumar Yadav, faculty of international Law at HNB Garhwal Central University, Uttarakhand.

Expressing a differing view, political commentator Acharya, who is also associated with ‘Nepali Times’ newspaper in Kathmandu argued that the freedom of speech and expression cannot be limited to citizens, it has to be in consonance with international laws. “If our domestic laws and constitutional provisions are against international standards, they need to be amended. If they are not then as a signatory state, we stand in violation.”

He then went on to argue that the Constitutional provisions relating to freedom of speech embraced under South Asian Constitutions are not in compatible with International Covenant on Civil and Political Rights (ICCPR).

Showing satisfaction with political analyst Acharya, media expert Mr. Pant further said, “Some commitments to international community are limited on papers.”

Noted, Article 18 (1) of ICCPR says, “Everyone shall have the right to freedom of thought, conscience and religion.” In the similar breath, Article 19(1) of the same Convention asserts with all words that, “Everyone shall have the right to hold opinions without interference.”

The entire SAARC states are signatories of this Convention.

Meanwhile, the statutes unanimously mention that the right to information falls within the ambit of right to speech and expression.

Although the walls of freedom of speech and expression are yet to be well-cemented in SAARC countries, this right is attached with some constitutional limitations as it would not immune a person from prosecution if he transgresses the boundary.

jhajivesh@gmail.com

Published on June 8, 2016

 

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