Sir Geoffrey Bindman
Geoffrey Bindman is a legal consultant, writer and broadcaster in civil liberties and human rights, media law, defamation and anti-discrimination law. He is the chair of the Board of Trustees at the British Institute of Human Rights. Born in 1933, he has practiced as a solicitor in London since 1960. He founded Bindman & Partners in 1974, and throughout his long and distinguished career, has specialized in civil liberty and human rights issues. He was Legal Adviser to the Race Relations Board from 1965 to 1976 and thereafter to the Commission for Racial Equality until 1983. He has represented the International Commission of Jurists, the International Bar Association, Amnesty International and other bodies in human rights missions in countries including the former Soviet Union, Germany, South Africa, Chile, Uganda, Namibia, Malaysia, Israel and the Occupied Territories, and Northern Ireland. In 1999 he received the Liberty and Law Society's Gazette award for lifetime human rights achievement and in 2003 the Gazette Centenary award for human rights. Bindman has lectured at law schools in Britain, US, and other countries, and currently is a visiting professor of law at University College London and London South Bank University.
2009 Hrant Dink Memorial Lecture Sir Geoffrey Bindman
January 16, 2009 Boğaziçi University
FREEDOM OF EXPRESSION - A UNIVERSAL RIGHT
It is an honour and a privilege to be asked to give this lecture in memory of a man of extraordinary courage and importance, who sacrificed his life by upholding the highest duty of a journalist: to tell the truth as he saw it. I am also privileged to do so in the presence of Raquel Dink, who has faced her grievous loss with such strength and dignity.
It is also an honour to follow the very distinguished writer Arundhati Roy who gave the inaugural lecture in this series last year. I have read her brilliant and eloquent contribution in which she explores the issue of genocide, taking her cue from the tragedy which occurred in Anatolia in the Spring of 1915.
While I am very much aware that it was the courage and tenacity of Hrant Dink in publicly examining that event which brought about his murder, I do not intend this evening to dwell on the detail of that subject. My concern is not with what Hrant wrote but his freedom to express his opinion on any subject. My theme is his right to freedom of expression. I claim that this is a right which is not limited to any time or place but is a fundamental and universal right which belongs to all mankind.
Freedom of expression must be cherished and protected - where necessary by legal safeguards. This is the common consensus of the nations of the world developed over many centuries. As the great English poet John Milton said in the year 1644:"Give me the liberty to know, to utter, and to argue freely according to conscience above all other liberties."
The murder of Hrant Dink occurred two years ago. The trial of those accused of this atrocity is, I believe, even now not concluded. Although I have been a practitioner and teacher of law for nearly 50 years - and indeed I have been a criminal lawyer - I do not intend to comment on a case still in progress in the Turkish courts. In a sense it is not relevant to my theme. More relevant is the extent to which the law in Turkey complies with international standards. The murder is a particularly vicious attack on the right to freedom of expression, but my concern to- day is to focus on the role of government and the law in protecting the liberty of the citizen to exercise his or her right to freedom of expression.
Hrant Dink was of course himself the target of restrictions on his freedom to express his opinions which were imposed by law. Like Orhan Pamuk, the world famous Turkish writer, and many others, he was prosecuted under article 301 of the criminal code for committing the offence of insulting Turkish identity. I will say more about that later.
It is also appropriate to discuss the human right to freedom of expression at the present time because we have just celebrated, a few weeks ago, the 60th anniversary of the Universal Declaration of Human Rights.This formed a vital part of the strategy of the United Nations in the aftermath of the Second World War in the pursuit of world peace and justice. But the history of the struggle for freedom of expression goes back much further.
I will talk about that struggle in England. The history of civil liberties and human rights in England has proved of universal importance because the international human rights movement,developed through the United Nations, relied very heavily on English precedents. I return to the the republican poet John Milton. In 1644 he published his famous speech entitled Areopagitica. The name is Greek. The original Areopagus was the parliament of ancient Athens. In Athens freedom of expression was recognised as an essential right of the citizen. Milton's great speech was prompted by a new law introduced in England by the government of King Charles the First extending the censorship of books. Milton chose as the model for his attack on censorship
a speech by the Greek orator Isocrates in about 400 BC made in the Areopagus.
Milton's speech was addressed to the Parliament of England. It had issued a decree to control printers and booksellers. They were required to obtain the permission of the government before printing publishing selling or importing any written material. This decree strengthened a tradition of censorship of the press and the expression of opinion adverse to the English government which had been followed by Queen Elizabeth the First and all previous British monarchs.
However, in spite of Milton's vigorous complaint - and he was influential as the secretary to the Lord Protector, Oliver Cromwell - it took another 50 years, until the liberalisation of what has been called the "English Revolution" . for the requirement of licensing to be abolished. There had been a number of changes of political fortune and the minority view previously suppressed by the licensing law became the majority view. For a government to maintain censorship when in power is to invite censorship of its own publications when in opposition. Governments who use the law to suppress dissent often forget that it can be used against them when they lose office. And we have other legal measures to challenge objectionable publications, such as prosecutions for libel and blasphemy. Threats of violence for political objectives had long been prohibited - and regularly punished by death - by laws against treason and sedition.
Even Milton in his eloquent plea for freedom of expression had recognised that some limits were necessary. He pointed out that those same exceptions existed in ancient Greece. But Milton's main argument for freedom of speech was that it enhanced the wisdom of the society by allowing all policies and issues to be debated as widely as possible. The outcome of free and uninhibited debate is that all arguments and points of view can be presented and evaluated in an atmosphere of peace and reason. Freedom of expression is good for society. Although Milton did not use the
word "democracy" the thrust of his argument is that freedom of speech and democracy go hand in hand. You cannot have democracy if free speech is suppressed.
Although in Britain licensing of publications was never restored, the suppression of publications hostile to governments has recurred periodically. Governments, which always see advantage in controlling their citizens, invented and extended new forms of law in order to discourage and punish dissent. Many who opposed governments were until the 19th century executed for treason. Although originally the focus of laws against treason and sedition was on physicial violence and the threat of violent revolution, the expression of political opinion was often the evidence upon which governments relied to back up their prosecution of those they wished to suppress.
In times of war and when governments fear the threat of foreign invasion or attack, they inevitably seek means of suppressing opponents among their own citizens whom they suspect of supporting the enemy. The French Revolution in 1789 caused a number of people in Britain to support the idea of overthrowing the monarchy. There were others, more moderate, who were encouraged by events in France to propose more limited reforms, including more frequent Parliamentary elections and a wider franchise (at the time the right to vote for members of Parliament was restricted to a small number of wealthy landowners). Like all governments, the government of William Pitt in the 1790s exaggerated the threat to public order and the danger to the public of the opposition. In a time of public anxiety, however, governments can feel more confident in restricting rights. We see how the so-called "war on terror" has been used to justify the violation of human rights in the United States, in Guantanamo Bay, for example.
But licensing of publications having long ended, the laws against sedition or treason were the main weapons available to the government in 18th century Britain. In 1794 the leaders of the movement demanding annual parliaments and universal suffrage were put on trial for treason.It was the democratic element in the British legal system that rescued them: the jury of ordinary people. Prosecutions on serious criminal charges were not decided by judges appointed by the government but by a jury of 12 citizens randomly selected from all householders. The prosecution failed: the jury found all those accused not guilty of treason.
The essential point is that these men were not seeking to overthrow the government of the country by force; they were merely seeking an extension of democracy and they were seeking it by peaceful means. To suppress violence is legitimate. To suppress peaceful opposition is not.
Until the year 2000 there had never been a general law in Britain which declared a right to freedom of expression. Britain never had a written constitution or a code of law. The law had developed in a piecemeal fashion, composed of statutes passed by Parliament and the common law, made up of the rulings of judges accumulating over time. It always used to be said that in Britain a citizen was permitted to do anything which the law did not expressly forbid.
So there was freedom of expression except where the law had stepped in to restrict it.
By the early 20th century, the law had restricted free expression only in the ways I have already outlined: treason and sedition were crimes involving the intention to overthrow the monarch or the government by the use of physical force. There was the crime of blasphemy, which is now virtually obsolete. It was committed by insulting the Christian religion but only as represented by the Church of England. When the writer Salman Rushdie published his novel "the Satanic Verses " in 1988, attempts were made to prosecute him for blasphemy but the court ruled that it did not apply to the Muslim religion. Undoubtedly many Muslims were offended by this book and it is not surprising that some of them tried to use the law to suppress it. Demands were made to the government to do this but the government refused to intervene and the author's right to publish was upheld. The Foreign Secretary, Sir Geoffrey Howe, explained the reason very clearly:"The British government, the British people, do not have any affection for the book. It compares Britain with Hitler's Germany. We do not like that any more than the people of the Muslim faith like the attacks on their faith contained in the book. So we are not sponsoring the book. What we are sponsoring is the right of people to speak freely, to publish freely." Milton might have said the same thing. There were only two or three prosecutions for blasphemy in the 20th century and it is very unlikely that there will ever be another one.
The principle of free expression and the limitations on it which I have mentioned in British law found their way with some modifications into the law of the United States. Freedom of speech is safeguarded by the first amendment to the constitution.
The United Nations Organisation was established immediately after the war ended in 1945 by the world community of nations, including Turkey, of course, mainly as a means of achieving the peaceful resolution of disputes between nations. For example it provided in its charter that no nation should go to war save in two circumstances: either in self defence or where the Security Council of the United Nations had given its express authority. In order to establish standards of conduct to be observed by nation states, the United Nations constituted a Commission on Human Rights. Its first task was to prepare an International Bill of Rights - a document identifying those rights which were the hallmark of humane and civilised behaviour which all nations should be required to respect and observe,enforceable through legal processes where necessary. A prime mover in formulating these principles was Mrs. Eleanor Roosevelt, wife of the then president of the United States.Although based on principles originally developed in Britain, and adopted in the United States Constitution, they achieved universal acceptance in the Universal Declaration of Human Rights, proclaimed by the General Assembly as the first step in this process of establishing an international system of justice.
One of the key rights which identified was freedom of expression. Article 19 reads:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, reeive and impart information and ideas through any media and regardless of frontiers."
The next stage - to translate this and the other rights summarised in a document of 30 articles of similar length into a a practically effective legal code - was delayed for nearly 20 years. During
the "cold war" between the United States and the Soviet Union and their respective allies little progress was made. However in 1966 the International Covenants on Civil and Political Rights and on Economic and Social Rights were adopted. In the former, the formulation of the right to freedom of opinion and expression was spelled out in more detail than in the Universal Declaration. Everyone was to have the right to freedom of expression,including "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in wiritng or in print, in the form of art,or through any other media of his choice." But there was an important addition. In a document which was intended to be the basis for a legal process a commitment to absolute freedom was unworkable: there could be legitimate exceptions. Hence a qualifying clause was added to provide that the exercise of the freedom carried with it duties and responsibilities, and that the law could therefore properly prescribe restrictions, but these could only be "such as are provided by law and are necessary (a) for respect of the rights or reputations of others; (b) for the protection of national security or public order, or of public health or morals" .
While these qualifications have the ring of caution, as if what was being given with one hand was being taken away by the other, it must be remembered that they were themselves subject to an important limitation: that they only applied where they met the test of being "necessary" for the limited purposes provided. Freedom of expression was not to be suppressed at the whim of an authoritarian government or to serve undemocratic or anti-democratic purposes by denying access to information or free debate about the conduct of public officials.
The next stage of the process started by the Universal Declaration was the creation of actual legal processes for deciding when its principles had been violated and machinery for enforcing decisions and securing redress for victims of violations. In 1950 The European Human Rights Convention established that mechanism for member states of the Council of Europe and of course Turkey is one of those states: a party to the Convention and to its optional right of individual petition as a result of which individuals who claim that they are the victims of violations by any state party may petition the Court of Human Rights in Strasbourg.
The right to freedom of expression is to be found in article 10 of the Convention. It broadly follows the formula in the International Covenant but once again the caution of diplomats protecting administrative and bureaucratic interests is apparent. There are exceptions. Even licensing of publications is permitted. While it is made clear that the right to freedom of expression includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, "The exercise of these freedoms may be subject to such formalities , conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
While these exceptions may at first sight appear to open up so many loopholes as to remove any real safeguard for freedom of expression, the limitation of the exceptions to what is "necessary in a democratic society" reminds us that the exceptions are to be applied sparingly. They are only available to be used by governments which wish to impose restrictions on freedom of expression in order to serve an overriding public benefit.
In the year 2000, the British parliament brought into force a Human Rights Act. Its purpose was to enable the British courts to adjudicate on violations of the European Human Rights Convention. Previously, although British law was already in most respects in line with Britain's obligations under the Convention, the courts could not themselves provide remedies for those who claimed to be the victims of violations. Such people were obliged to take their complaint to the Court of Human Rights in Strasbourg, a long and expensive process. This meant that arguments about the scope of article 10 and the right to freedom of expression could be contested in the domestic courts. This has resulted in a number of important developments, including the creation of a right of privacy. In relation to the freedom of the press, the new law imposed a particular duty on the courts to recognise the importance of the Convention right to freedom of expression.
In relation to privacy, it is important to note that article 8 of the European Convention protects the right to respect for private and family life, home and correspondence. There is clearly the possibility of conflict between freedom of expression and this right to privacy and a balance has to be struck between the two. The European Court of Human Rights has done this and the principle established is that the press is not to publish information about the private life of individuals except where there is a public interest in doing so. In Britain a recent case concerned the publication by a newspaper , the News of the World, of a story about bizarre sexual practices allegedly carried out by a leading figure in the world of motor racing who also happened to be the son of the late leader of the British fascists, Sir Oswald Mosley. The paper claimed that these practices involved women dressed up in Nazi uniforms but the newspaper could not substantiate this part of the story and Mr. Mosley denied any Nazi element in what occurred. The court held he was entitled to respect for the privacy of his activities, which were not themselves unlawful, and awarded him damages against the newspaper. The ruling was widely criticised but in my opinion it correctly interpreted the law.
Currently we are at a sensitive stage in the history of Europe. The European Union has been pursuing a policy of expansion and several new states have recently been added as members. The European Human Rights Convention has been adopted by the European Union as the standard of human rights observance which member states are required to uphold as a condition of membership. If Turkey is to join the European Union, of which it would be an immensely valuable member, Turkish law on freedom of expression as well as other rights needs to be consistent with the Convention and with Convention law as developed in the decisions of the Court of Human Rights.
Because Turkey has already been subject to the jurisdiction of the Court for many years there have already been a number of challenges to Turkish laws restricting freedom of expression and the areas of conflict with Convention obligations are not hard to identify.
In the year 2000 the Court stated in the case of Ozgur Gundem that the Turkish state has a legal obligation to protect freedom of expression. The court found that the newspaper had been the target of prosecutions by the government and harassment by individuals against whom the government took no effective action. The court found that the prosecutions were a violation of Article 10 as a curb on freedom of expression and that they could not be justified as "necessary in a democratic society."
In 2003 in Gunduz v. Turkey the Court upheld a claim that a conviction for incitement to hatred violated article 10. The claimant had criticised secular and democratic principles and called for the introduction of Shariah law. His comments were made in the course of a panel discussion on television when other speakers expressed contrary views. In this case also the Court concluded that the restriction on freedom of expression imposed by the relevant provision (Article 312, sections 2 and 3), of the Criminal Code, had not been established as "necessary in a democratic society." This case emphasises that freedom of expression protects all opinions, even those which may advocate restricting that freedom.
In 2004, in Gerger v.Turkey a journalist and the editor of the newspaper Evrensel were convicted of a breach of the same article. This ruling was challenged in the Court of Human Rights on a similar basis. The government on this occasion offered a payment of compensation in settlement which was accepted. The government also issued a statement affirming its commitment to ensure that Turkish law and practice would be brought into line with the requirements of Article 10 of the Convention. This statement affirmed the need for Turkey to relax restrictions on freedom of expression in order to fulfil the criteria for accession to the European Union. I am also aware that very considerable changes have been made to achieve this aim, including an amendment to the Constitution which now states, in article 28:"The press is free, and shall not be censored.The state shall take the necessary measures to ensure freedom of the press and freedom of information."
I come to the provision of the Criminal Code under which Hrant Dink was convicted. Article 301 of the Criminal Code in 2005 created an offence of insulting Turkish identity - "openly denigrating the government, courts, police or armed forces." Had this provision been challenged under the European Human Rights Convention the government of Turkey would have been entitled to claim that it was necessary in order to safeguard national security. Given the width of the provision and the fact that it could be used to curb speech which may not threaten violence and may merely inhibit the liberty to argue freely, there is a question whether this law could be justified under the Convention. Your president seems to have recognised this in addressing the Council of Europe after his election. He said he favoured amendment and that indeed subsequently occurred on 30 April 2008.
However, it is not clear that the amendment which was made, which has been translated into English as replacing "insulting Turkish identity" with "insulting the Turkish nation" has made this law more compatible with Article 10 of the Human Rights Convention. It is true that the law has been made less severe in other ways: the maximum prison sentence for breach has been reduced from three years to two and trials will mostly take place before magistrates'courts instead of criminal courts. The European Parliament has criticised this new provision and has called for its repeal. While, as I have said, laws against inciting racial hatred and religious hatred exist in Britain, the right to criticise the government, even in offensive and insulting language, remains lawful and it is a right which I expect to be preserved. Where laws have been passed in any country which suppress non-violent opposition or criticism of government they are in my opinion incompatible with those principles which were adopted by the world community in the Universal Declaration of Human Rights. They cannot be justified.
In my comments about Turkish law I have to make it clear that I have to rely on translation and my limited knowledge of the Turkish legal and political system. Nevertheless it appears from various reports that other articles in the Criminal Code than the ones I have mentioned may also impose restrictions on free expression in Turkey. If Turkey is to join the European Union, which I personally would welcome, a substantial review of laws restricting freedom of expression is still needed.
The movement towards the creation of international human rights standards has received the support of the whole world community, including of course Turkey,which has almost without exception endorsed the Universal Declaration of Human Rights and the covenants and convention which I have described earlier. Freedom of expression is an essential component of this movement. Yet many governments, including the British government, have made strenuous efforts to limit freedom of expression for reasons which they clearly believe are in the interest of their citizens. An example is in the area of racial and religious incitment. It has been a criminal offence in Britain since 1965 to incite racial hatred but there have been very few prosecutions. Although this offence is not necessarily limited to cases in which violence is threatened (and indeed threatening violence would be a criminal act in itself) this crime has been used recently against members of a far right party, the British National Party, whose policy has been strongly opposed to immigration and whose members have often been involved in attacks on black people. A recent prosecution of leaders of this party failed when the jury evidently did not believe that inflammatory speeches made by those accused met the test laid down by the law. The law did not prohibit discrimination on grounds of religion,as distinct from race, and this led to some anomalies.For example, while it was an offence to incite hatred of black people, or of gypsies, it was not an offence to incite hatred of Muslims, because the latter are identified by religion rather than race. Hence in 2006 the government extended the law to apply to religious as well as racial hatred. There was much opposition to this new law because it was thought to be a restriction on criticism of religious doctrine or observance. To meet that criticism a clause was inserted which protects the right to criticise religious beliefs or practices.
The threat of terrorism seems to encourage governments to believe that restrictions on civl liberty will not be strongly opposed. That belief however was recently disappointed when the British government tried in parliament to extend the power of the prosecuting authorities to detain suspects without charge. It had already been accepted that those suspected of terrorist crimes could be detained for up to 28 days without charge in order to allow the police sufficient time to investigate the evidence. However the attempt to extend this period to 42 days was defeated by the House of Lords. Although the government could have re-introduced the measure they recognised the force of public opinion against the extension and decided not to do so.
This demonstrates that the struggle to stop the erosion of civil liberties can be successful. I believe that it is the democratic duty of all of us to ensure that the actions of government are always carefully scrutinised, especially where they threaten the freedom to tell the truth, express opinions, and peacefully criticise.
In his courageous determination to maintain that freedom for which he and others have fought over the centuries, Hrant Dink has been a magnificent example. I am grateful for this opportunity to express my admiration for his great contribution to the struggle for universal human rights.