Free speech: the emerging consensus

by

KEVIN BOYLE & CHERIAN GEORGE

December 10th, 2008

This article, marking the 60th anniversary of the Universal Declaration of Human Rights, appeared in The Straits Times and Malaysiakini today.

Debates over freedom of expression have been at the centre of political transformation and turmoil in Southeast Asia. These debates have been almost exclusively domestic in scope, which is not surprising since all politics is ultimately local. Yet, there is something to be gained from keeping track of global developments in the area of freedom of expression.

While the particularities of each society may make its citizens feel that their situation is entirely unique, the impact of economic globalisation and new communication technologies has precedents and parallels elsewhere. The global debates on the opportunities and challenges of freedom of expression can provide guidance for a society that is trying to navigate the fraught choices before it.

Recently, we had the opportunity to be part of an international conversation on this topic. In September 2007, we were the rapporteurs for an informal seminar on freedom of expression organised by the Asia Europe Foundation (ASEF) in Siem Reap, Cambodia. Last month, we embarked on an ASEF lecture tour of Southeast Asian capitals, talking to fellow academics, students, civil society activists and other concerned citizens in Bangkok, Jakarta, Kuala Lumpur, Phnom Penh and Vientiane. These conversations reminded us of the astounding diversity of this part of the world, but also confirmed the common ground that we had observed at the 2007 seminar.

Indeed, one of the key conclusions from that seminar was the bankruptcy of the notion of an Asian-Western divide over the principle of freedom of expression. Instead, there is clear convergence. This is not to say that there is consensus among people. Controversies continue to rage over how to guarantee people’s rights to freedom of expression while minimising harmful effects of that freedom. However, these debates are probably as profound and passionate within each country and region – whether Asian or Western – as they are between regions or civilisations.

There are some key ideas that cut across national boundaries. First, it is clear to most that freedom of expression is not only an individual right but also an essential ingredient for societal progress. It is vital for development. The new global economic competition requires education systems that nurture open and creative minds – inconceivable without freedom of opinion and expression. It is also indispensable for democracy. Governments cannot be truly accountable to the people without the scrutiny of independent media.

Second, no freedom is absolute. It is legitimate to require the individual’s freedom of expression to be exercised in ways that take into account the rights of other individuals as well as the public interest. People have a right to protect their private lives and their reputations, and there is no right to incite hatred or violence. International standards allow restrictions on speech to uphold public order, public morality and national security.

Third, however, such restrictions are frequently misused by governments to suppress legitimate speech and protest. Around the world, journalists, bloggers, artists and others continue to be victimised for their work. Any restriction on expression should pass three tests. It should be based on law rather than arbitrary action. It should also serve aims that are recognised internationally as legitimate – which do not include the need to protect the position of those in power. Finally, any interference with freedom of expression must be necessary and proportionate, unlike the all too common tendency of authorities to engage in overkill.

Fourth, there is a global trend to combat governmental secrecy by guaranteeing access to citizens to official information. More and more countries in Asia as elsewhere are instituting freedom of information laws. The “right to know” supports transparency and good governance, and counters official corruption. Such laws have been introduced recently in Bangladesh and Indonesia. Even Britain, from which some countries’ secrecy laws came, has embraced the principle of open and transparent government.

Fifth, there is growing awareness of the limitations of the free market and the profit motive in providing the amount and quality of information and ideas that society needs. The dominance of media corporations needs to be balanced with government policies in support of media diversity, including independent public service media and alternative grassroots media.

Finally, there is recognition that freedom of expression does not mean removing the state from the equation. Quite the contrary: the state is needed to uphold the rule of law. In many parts of the world, including here in Asia, government censorship is not the only or even the most serious threat to media workers and artists. Unpopular but legitimate speech is routinely attacked by non-government interests – including angry mobs – that go beyond vigorous complaint and use violent means to silence those with whom they disagree.

Article 19 of the Universal Declaration of Human Rights – 60 years old this week – proclaims the principle that: “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.”

It is time to put that ideal into practice. While it is far from being realised, there is today a deeper understanding of its importance and of how this human right can be secured for all. There is no single formula, but our interactions across the region convince us that people everywhere believe passionately in their right to speak their mind.

– Kevin Boyle (kevin@essex.ac.uk) is Professor of Law at the University of Essex, United Kingdom. Cherian George (cherian@ntu.edu.sg) is an assistant professor at the Wee Kim Wee School of Communication of Information, Nanyang Technological University, Singapore.