Tuesday, August 28, 2007

The Right to Freedom of Expression


Course: Human Rights and World Politics
Topic: The Right to Freedom of Expression
Prepared by: Vutha Ponnarith, ID: 06757
Submitted toProf. Stan Starygin


To complete this related Human Rights topic, there is only grateful distribution of idea and helpful from Prof. Stan Starygin. I would like to say thanks that he always show the students not only the good methodology of teaching in class but also from internet interaction in order to guide to pursue this study course getting better and more comprehensive. Without the professional and academic style of his teaching, my knowledge would not have been increased and possible.


I. Introduction……………………………........................
II. Function of Fundamental Expression..............
III. The Elements of Freedom of Expression…......
a. Danger for the Right of Free Expression…….....
b. Restrictions on the Right of Free Expression…
IV. Case Study (Cambodia)…………………...............
V. Conclusion………………………………......................


So far, in a society in order to protect human value from any inhumanity actions and living in the peaceful place with together. Human rights have been conduced and updated in the logical interpretation by many expertise, philosophers, lawmakers, and recognized internationally that have stated in UDHR and ICCPR and other international convention. Human Rights created aim to protect people interest from government institutions in which include the Right to Freedom of Expression is one of many human rights that adopted to ensure that every one has the right to hear, see, and showing the fact from their opinion, reality, and feeling over the issues that they think it will be good or not. Anyway, this right has many related problems that have been interfered and violated for many cases from many people that they don’t respect. So what will happen to the sufferers and doers that violated this kind of rights, shall they get punishment or not?

I. Introduction

Freedom of speech/expression is the concept of being able to speak freely without censorship. The right to freedom of speech is guaranteed under international law through numerous human rights instruments, notably under Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 10 of the European Convention on Human Rights. Nowadays, the freedom of speech to express both for public opinion and printed media or for journalist have been threaten and fearful in figure out for what they want to say in order to participate, bring, maintain human right in the freedom of speech and expression for the liberty of modern liberal democratic nations. Right to have freedom of expression is a kind of right that people must be able to reveal, express, and get free information about their society and all relevant topic and actors, for instance, party programs, draft laws, government policy, judgment and all kinds of policy. Otherwise they could not freely chose their representatives or show for what they want to express that can be processed and participate in the law making process by discussion. That mean people will be able to express their point of view about all these matters, to give their opinion to discuss with others and to contribute their ideas about the solution of problems of the society or to the process of decision-making. Generally, the freedom of expression is based on debate, open decision making and the free exchange of ideas, opinion and information. This freedom is essential for the development of knowledge and understanding among people that aim to promote tolerance and cooperation between all kinds of individuals in society.

II. Function of Fundamental Expression

Right to have freedom of speech is one of the basic needs and fundamental freedom of human beings that have stated in UDHR and ICCPR for living in a group in the security and prosperity nation. To live with together and with other people, it’s necessary to understand how they can communicate and to discuss with for the common problems and reach the solution of those problems. Furthermore, another basic need of all human beings is to participate in the process of decision making for media, public view, or individual’s perspective. As every human being has the same value like all other human beings, individual opinion also has the same value like all others too. According to Political Science, Realism, Pluralism and Beyond, the concept of a pluralism society is based on this idea, namely, to the modern liberal democratic countries. To pluralist, one state can not be isolated from the international system. The states have to establish relation, cooperation, interaction, or work with one another in order to find collective goods or common interest and there are many means that can make the state transact with other states through peaceful negotiation, bilateral process or multilateral agreement. Therefore, like the freedom of expression that people can contribute and respect each other opinion because one idea is never good as two ideas. So they can build the truth and agreement as a whole in order to develop something parallel and dynamically. According the John Lock and Thomas Hobbes, individual has their right and freedom to choose the leader. Individual creates social contract by choosing the government to serve people. Thus, the government which is chosen by the people through voting can not execute their absolute power to the people. Government needs to make decision base on common will in order to serve the common interest. Thus, it will make a society more lively, colorful and stronger when all of its members can contribute their idea and points of view together in order to increase the chance to find the right solution for the problems of society or on some unsolved cases. And also that will increase the chance to make the right decisions and the right action. This apply, “two ideas is better than one”

III. The Elements of Freedom of Expression

As this freedom is essential and have basic concession by the sate, a fundamental and an inalienable right of every human being is legally guaranteed by two following provisions:Article 41 of Cambodian Constitution:“Khmer citizens shall have freedom of expression, press, publication and assembly” In more detail of International Covenant on Civil and Political Rights describes the elements of freedom of expression and protects to all kinds of expression even civil disobedience. On the other hand, on article 19 of ICCPR, “Everyone shall have the right to hold opinions without interferences. 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. In this broad sense freedom of expression does not only include freedom to “Impart information and ideas of all kinds” but also freedom to “seek” and “receive” them “regardless of frontiers” and in whatever medium, “either orally, in writing or in print, in the form of art, or though any other media of his choice”1 This meant that freedom of expression refers not only to fact data and information but also to the idea, opinion, and view. Furthermore, basically this freedom also includes freedom of information which meant free access to information because information, opinions, and facts are the base for forming fact opinions and views. Both expression and receiving information from electronic media like radio, television, satellites, cable, or internet are also covered by the freedom of expression. So far in all societies, namely, freedom of expression is not limited to the spoken word or to the free press. For example, China violates this right by technically blocking internet access to certain human rights homepage.2 For “Basic Law” to have someone’s views of broadcast or publish; they may express them freely in the same manner and under the same circumstance as any body else. 3Furthermore, free flow of information is not restricted to the territory of one country but includes exchange of information and ideas with all other foreign countries. For example, to threaten to withdraw the license for a radio station in Cambodia which one want to broadcast foreign programs of BBC or Radio Free Asia would also affect the right of free expression because it would cut of the Cambodian public from outside information.4

a. Danger for the Right of Free Expression

Many people and governments even private, persons do not really understand the tremendous value of a free flow of information for the society. They regard free expression as an obstacle or even a threat to their politics and ways of doing business. That mean they don’t want to open, critical and transparent process of discussion which increase their accountability but prefer people to be deaf and mute. Or they don’t understand the concept of pluralism and think only their point of view is important and don’t want to express because of fear somehow. For instance, I always heard that when some one chat/talk/tell in a group about someone did some thing bad or refer to the name of high ranking officer for the government who did that bad or act immoral thing, they (people) always ban each other not to talk about that, be afraid they (officers’ group) hear, we are going to be sent to prison somehow. Anyway, I think that they should reveal if it is the true news/facts that they should say out for what they see/know. For these reasons, they try to suppress free expression by various means:
The worst measures are the killing or arbitrary arrest of the direct threatening of journalists or other people who try to communicate freely of law that are used to suppress free expression. For example, however, criminal laws are also used to punish the exercise of rights of free expression and imprison critical persons or the complete lack of clear on free accesses to information that abused for importing excessive control on the free flow of information.5 In my personal perspective for instance of reality, that is not only Mahatma Gandhi used civil disobedient to against bias or bad law but he also used civil rights in free speech to say this action or that law is bad, not satisfies that should not be respected and workable of society. Thus, it is a chance for people to express about something that is true and can correct it together from bad to good that should be respected.

b. Restrictions on the Right of Free Expression

Many human rights articles in the constitution or in international conventions explicitly also state that this basic rights can be limited and restricted by a law especially for the purpose to protect the freedom for others. It may therefore be subjected to certain restriction, but these shall only be such as are provide by law and are necessary and respect of the rights or respect the reputation of others and in order to the protection national security, public order, public health, and orals.6 Therefore, these provisions are opening the door for restrictions. That mean this always create a danger that government official, lawmakers or the judiciary refer to these provision to justify restrictions which are not covered by the special purpose or which are not necessary or not clear enough. So, all restrictions should always be checked as followings:
Is it a restriction by law or based on the law
Is the law text precise enough or too vague?
Does the restriction follow one of the purposes which are mentioned in the human rights article?
According to UDHR, Article 19, “Everyone has the right to freedom of thought, conscience and religion this right includes freedom to hold opinion without interferences and to seek, receive and impart information and ideas through any media and regardless of frontiers.”7 Anyway, it can be good for the government to restrict free speech because free speech/expression can be led to lawlessness. For example, if every body have a rights in free speech without limitation. They will say or write gossips about someone good or bad is up to their own view even by sometime that has no evident but just hearing one from another. So who is responsible for bad that logically we always need something good? That is why the legislature past the law that every one has the rights to talk/reveal and express about anything but that must be true and have evident to prove why we say someone or something is bad or good that will reflects deeply respect to people reputation and something that is pure.

IV. Case Study (Cambodia)

On article 41 in Cambodian Constitution, “Khmer citizens shall have freedom of expression, press, publication and assembly.” And Article 19 of ICCPR: 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 import 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,” According to Development Weekly, Politics, August 20 - August 26, 156, 2007, p. 3, “Reporter suffers arson attack” stated that the home of Phan Phat, a reporter for the little-known newspaper Chbas Kar, was reportedly set on fire August 10 by unknown arsonists. Police suspect the attacker was associated with loggers angry about his articles criticizing illegal logging in Pursat province.8 This case reveals that the right of journalist/reporter is not guarantee and violated. Furthermore, on Article 8 of the press law states that: “Before distribution of the press, the employer or editor shall submit an application to the Ministry and the Ministry shall issue a receipt to the press after receiving the whole file... Any employer or editor who publishes without respecting this formality in advance they shall be fined from 500,000 to 1,500,000 riels.”9 Let me show the case, suppose an editor of a new newspaper wants to publish articles that will critical government. Even though it does not name any members of the government by name, but she knows that the ministry will either not give its approval or subject the article for delays because the article is so critical. So, she decides to publish the article without telling Ministry. After the publication, she is arrested and the paper is shut down for publication without Ministry approval. The editor’s attorney argues that the article did not use the name, likeness or images of any government officials.10 How do you think the court will rule this case? Back to the case about Phan Phat, a repoter for Chbas Kar newspaper above by focusing on “Defamation”. Defamation occurs when someone harms the reputation of another person of institution. Generally, defamation is defined as the publication of language which harm’s another’s reputation. Defamation can be a crime, or civil offense.11 Human Right is created to protect people’s interest from government institution. But for Phan Phat’s case, he just report the true news and in his article did not name any related person who involved and just criticize the log is illegal because it was against the government’s rule not to cut down the forest.12

V. Conclusion

Although the implementation of the right of free expression remains lacking in many countries, the synonymous term freedom of expression is sometimes preferred, since the right is not confined to verbal speech but is understood to protect any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute in all any countries and the degree of freedom varies greatly. In industrialized countries also have varying approaches to balance freedom with order. In almost all liberal democracies, it is generally recognized that restrictions should be the exception and free expression the rule; nevertheless, compliance with this principle is often lacking. In other meaning, government should not restrict free speech of citizen, media, and journalist especially for a nation that hold democracy. Even sometime one particular democratic nation can be led to anarchy because of people in country has equal right and free expression in publicity; enable them to act/say any thing they want. However, free speech will conduct a country get independent and get out of crisis when the ruling party and the government treat unfair or did something bad for the society. So law maker created this right for people to expression their own opinion in order to correct that action and agree to live with together in a form of an orderly human right society.

1.U.N Human Rights Commitee, General Comment, Art. 19 ICCPR -29.6.1983 2.Wilhelm Treiber, Critical Legal Thing: Human Rights, 2004, p. 35
3.Prof. Roger Errera, Legal Studies Department: Freedom of Speech. 2000
4.Wilhelm Treiber, Supra, n 2
5.Id, p. 3
6.Id, p. 37
7.Stan Starygin, Human Rights and World Politics, UDHR, Article 19, 2007, p. 160
8.Development Weekly, Politics: “Reporter suffers arson attack”, August 20 - August 26, 156, 2007, p. 3
9.Matthew Rendall, The Constitution and Government of Cambodia, Constitutional Law: Art. 8 “Press Law,” 2000, p. 72
10.Id, p. 73
11.Id, p. 77
12.See more detail at Development Weekly, supra, n 8

1. Dr. Wilhelm Treiber, Critical Legal Thing: Human Rights, 2004
2. UN Human Rights Commitee, General Comment, 1983
3. Development Weekly, Politics: “Reporter suffers arson attack”, August 20 - August 26, 156, 2007
4. Roger Errera, Legal Studies Department: Freedom of Speech, 2000
5. Stan Starygin, Human Rights and World Politics, 2007

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