Report: Soodh
After a debate that stretched to three days, the Parliament accepted the draft bill on press freedom on 28 August 2007. Opposition MDP members spoke rather passionately against the bill. So did some Peoples Association, PA, members as well. When time for the vote to accept or reject the bill arrived, MDP members wanted to kill the bill. They refrained from voting. DRP helped. Some PA members too were helpful. The bill managed to get just the amount of votes needed for acceptance – 26 votes.
The bill has been getting some good media attention. Naturally, it is about their free space. But then, most of the worries expressed about the bill are based on no valid substance. For the greater interest of all concerned, I want to bring the media freedom debate back to this forum. The debate will help me when I take part in the improvement of bill at committee stage.
I begin here to list and discuss the various worries I have seen expressed in the parliament and in the media. I will do that in parts over the next week.
Bill conflicts with Article 25
The bill was said to be in conflict with the right to free expression as provided in article 25. Members who objected to the bill on that ground failed to take note of three important dimensions they ought to have taken into consideration while advocating press freedom against the backdrop of freedom of expression as enshrined in article 25.
Firstly - The article primarily deals with the freedom of expression for all in the widest possible connotation while the bill before them dealt with one aspect of that freedom of expression, that is to say, freedom of the press. Therefore, what is desirable to be put in a bill on free expression like protection for political speech by a party leader in a party rally, for example, may not be relevant for the purposes of a free press bill except to the extent that the press must be protected from any suit or detriment for conveying or quoting or citing that speech. While action may lie against a person for offending some legislation on free speech, the same shall not be held against a paper for having quoted or published or cited that speech.
Said another way, all of what is said in the right to free speech may not be applicable in the context of the right to a free press. The press shoulders more responsibility, works in a more professional environment, is bound by its own standards of practice, and bears a form of accountability that is unique to the media. All of that is not provided within the right to free speech in article 25.
Press freedom by its own context forms only a specific part of the wider right to freedom of expression. If this bill were a bill on freedom of expression, then of course, different considerations should apply. However, the rights of a free press must not be considered to be mutually exclusive with the basic provision on free expression.
Secondly - There are three limitations already in the article 25 where free speech ought to be limited by legislation. Free speech may be restricted to upkeep public interest, protect the country’s sovereignty and preserve the basic tenets of Islam. The limitations provided in the bill, which ever way one may want to interpret them, would not go beyond the three basic limitations already put upon us by our constitution.
A bill on free press cannot go beyond the constitutional bars placed upon the right to free expression. Members who disputed the exceptions to free speech in the bill failed to recognize that the restrictions did not originate from the Information Ministry but from the very article 25 of the Maldives constitution.
Thirdly - Article 19 of the International Covenant on Civil and Political Rights or the ICCPR also provides areas in which free expression may be limited to the necessary extent by legislation. They include instances such as respect for rights and reputation of others, protection of national security, public order, public health, or public morals.
The limitations provided in the press freedom bill, which ever way one may want to interpret them, would not go beyond the limitations contemplated by Article 19 of the ICCPR.
Therefore one must understand the Maldives constitution and the ICCPR to which Maldives is a party now, before criticizing that the bill limits free speech and the role of a free press and is drafted in conflict with article 25.
Creates many Crimes
The word “crime” is not mentioned in the bill at all. The bill does not create any “offences”. It does not talk of wrongs “civil” or “criminal”. It talks of instances of “breaches” of that bill. Offences have not been created by this bill for a purpose. In a related bill which creates the Maldives Media Council, that statutory body is given powers enjoyed by the British Press Complaints Commission and the Australian Press Council to ensure freedom of the press is upheld in the Maldives and complaints against the press are dealt with by the Council instead of the courts.
Mostly those items that are deemed to be outside the purview of press freedom are those that form part of the basic ethics of journalism in countries where the press has a culture of self regulation and ethical boundaries they would not pass. If we are to operate our own press freedom premises at par with them, right from the first day onward, we cannot allow them to be left to time to evolve standards of ethics and practice. A basis must be provided in a bill.
However much we aspire to have a free and independent media in the Maldives we are having to live with the reality that the journalists cannot even come together to create a powerful association for themselves as their lobbyist platform. Each is out there to out do or out maneuver the other. In such circumstances, leaving it for the press themselves to come with their ethics is a call pretty farfetched. A government needs to protect the press but also take care of the community in the same vein. Press in current times is seen more of a political activity than a professional practice. Journalists are more of the out of blue ones than those with the required credentials. Apparently a newspaper brought out 61 journalists to cover the recent referendum. As Information Minister, it beats me. But we have learnt to keep an eye closed in contemplation that one day soon, a responsible and free media in the Maldives will be a reality.
Investigation Journalism is Killed
Members construed the restriction against trading in official secrets or conducting espionage as a provision designed to wipe out investigative journalism from the Maldives. Members who spoke on the issue were basing their arguments and examples on an erroneous footing and were not able to distinguish between the specific technical connotations that come along with terms espionage and investigative journalism.
Critical Comments constitute Defamation
Members who spoke on this issue felt that the bill prevented any legitimate attribution of criticism to any public figure or public official or public entity. Some members did not even believe that there is a right to reputation by any individual. There were others who felt that anything said against a person in criticism would be construed as actionable defamation. The members based their arguments on a false footing that defamation is equal to any critical attribution. They used the words defamation and criticism almost interchangeably.
They were perhaps not aware of the fact that legal framework even now establishes several defenses against defamation. Truth, legal justification, honest analysis of events by a news paper with a view to improve the general state of affairs, statements made under a legal or similar obligation, relaying any proceedings of parliament or a trial are all established defenses where an action for defamation would not stand.
The status quo would be further cemented by the penal code, defamation legislation and other press legislations.
Basic Tenets of Islam
There is a serious confusion about this term. This term did not appear in the press freedom bill for the first time. It is in our constitution. It is in that article 25. It constitutes a limitation against free speech. Before bashing the drafters to have put that phrase as a limitation on a free press, members should have been more aware of their own constitution and the true import of that phrase.
Basic tenets of Islam go beyond the many schools of Islamic jurisprudence or the many views of jurists. The term refers to the collection of the pillars of the religion [Islam] and Faith [Iman]. It refers to the sources of Islamic Law like the Qur’an, Hadith or Traditions of the Holy Prophet, Analogy and Consensus. It refers to the directive principles of the very Islamic faith.
The bill simply says one must not in the name of a free press offend a basic tenet of Islam. Is that an issue?
End of Part One
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Courtesy: Mohamed Nasheed's Blog
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