11 August 2011

Freedom of Expression and Offense

Majority of international social scientists recognized that human rights are the foundation of human dignity, freedom, justice and peace. And for each of this right, there is more often than not a history (and too often a present) of oppression. As such, they each play a role in the construction of our common humanity. But it is their togetherness that makes us all human.

The 1948 Universal Declaration on Human Rights (UDHR) clearly laid out equal rights for all people and three fundamental principles governing human rights: rights are universal, meaning that rights apply to everyone whoever or wherever that person is; inalienable, in that they precede state authority and are based on peoples’ humanity; and indivisible in that all rights are of equal importance. The UDHR was also intended to provide a common understanding for everyone on how to prevent religious, racial, political and sectarian strife which plagued humanity throughout its history, culminating in the Second World War. This idea is forcefully expressed in the preamble of the UDHR which aspires to the advent of a world in which human beings shall enjoy freedom of speech and belief.

The first few days of August 2011 have reminded us that few rights generate as much controversy or make for greater angst than does freedom of expression: the mixed-media collage of artist Mideo Cruz displayed in the CCP gallery entitled "Poleteismo". The display presents very different legal, ethical and historical issues. But at the heart of the debates and attendant protests are core questions: What are this right’s boundaries? What should be the breaking point? Where is the threshold whose crossing means the space occupied is no longer that of individual freedoms but that of criminal behaviour? Is socalled blasphemy such a breaking point, as many have argued? Or is the boundary crossed only once words and pictures can be deemed to incite their beholder to hatred?

The international human rights community considers freedom of expression as a cornerstone right - one that enables other rights to be protected and exercised. The full enjoyment of the right to freedom of expression is central to achieving individual freedoms and developing democracy and plays a critical role in tackling the underlying causes of poverty.

Freedom of expression makes electoral democracy meaningful and builds public trust in administration. Access to information strengthens mechanisms to hold governments accountable for their promises, obligations and actions. It not only increases the knowledge base and participation within a society but can also secure external checks on state accountability, and thus prevent corruption that thrives on secrecy and closed environments.

Freedom of expression is also essential to the exercise of freedom of religion. And conversely, if people are not free to manifest their religion, there is no right to freedom of expression.

Yet, the right to freedom of expression, under international human rights law, may be restricted in order to protect, amongst others, the rights of others, and public order, if it is "necessary in a democratic society" to do so and it is done by law. This formulation is found in both the UN Covenant on Civil and Political Rights and in the European Convention on Human Rights. The protection of religious rights may fall under the 'rights of others' that may be protected.

As far as freedom of religion is concerned, international human rights law imposes restrictions whose wording is also quite similar to freedom of expression language: Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The European Court establishes a strict three-part test for the restriction of freedom of expression, and for a restriction to be legitimate, all three parts of the test must be met:
  • a restriction must indeed pursue the legitimate aim that it claims to pursue;
  • the restriction must be imposed in a democratic framework (so, either by parliament or pursuant to powers granted by parliament); and
  • the restriction must be "necessary in a democratic society". The word "necessary" must be taken quite literally and means that a restriction must not be merely "useful" or "reasonable".
Exactly what measures States impose to restrict freedom of expression is up to them, but the main parameter is that whatever they do has to be "necessary in a democratic society". This really is crucial.

The events of the few days, in particular with regard to the controversial "Kulo" exhibit, have placed freedom of expression at the heart of a national controversy and accompanying protest or threat of protest. What these events particularly highlighted is the grave shortcoming of leadership at all levels –l, national, community, sectoral – and its propensity to either escalate tensions and highlight divisions, or adopt politically expedient measures.

Freedom of expression and freedom of belief have been the hostages, scapegoat, and victims of these developments – together. The country has witnessed increased intolerance to both what is wrongly perceived as a liberal value and to Catholicism itself. Appropriate and legitimate responses must be grounded on the common framework and understanding of human rights laid down by the UDHR and other international instruments – it requires to move away – more than ever – from any attempts to protect certain sets of rights without due consideration of others and their impact on others. More than ever, the search must be to strike the right balance.