Freedom of expression in Asean
I am in Bangkok, Thailand for training on media defense for lawyers from Cambodia, Vietnam and Burma. This is sponsored by Media Defense Southeast Asia with support from the Konrad Adenaur Stiftung and the American Bar Association Rule of Law Program.
The prognosis is very bleak. All throughout Southeast Asia, despots continue to infringe on freedom of expression, a right guaranteed by the International Covenant on Civil and Political Rights and customary international law.
Freedom of expression has three aspects: the right to freely hold opinions which is absolute, as in fact, no government can control our thinking process; the right to expression, which may be limited in cases of national emergencies; and right to information. The latter is of course important because without information, people cannot make judgments. Without personal opinions, there will be no public opinion, which in turn, can be utilized to make governments accountable.
The consensus is that all leaders in the region are averse to freedom of expression because all of them suffer from issues of legitimacy. While the degree of repression varies drastically from the use of brutal force in cracking down on bloggers in Burma, Vietnam and Cambodia, Lest Majeste in Thailand, the use of libel and internal security laws in Singapore and Malaysia, and the killing of journalists in the Philippines- the commonality is that leaders in the region are all averse to the truth. The fact is even at this time and age, many of the regimes in the region lack popular mandate. When they do enjoy the mandate, like PNoy, they are allergic to criticism.
Dean Raul Pangalangan delivered a brilliant lecture on the normative values of free speech. He summarizes these into four: the democratic rationale, the counter-majoritarian rational, the marketplace of ideas, and the “safety valve” function.
The democratic function is summarized in the leading case of American Communications vs. Douds: “but we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds — that which is their own and that which is false and dangerous”. In “Whitney vs. California, it was described as: freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
The counter-majoritarian rationale is best summarized in West Virginia State Board of Education v. Barnette: “one’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The marketplace of ideas was expressed in Abrams vs. US: “To allow opposition by speech seems to indicate that you think the speech impotent ….. But when men have realized that time has upset many fighting faiths, they may come to believe … that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”
The “safety valve” function, finally, was expressed in Whitney v. California: “The framers of the Constitution “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”
The Philippines could be the leader in promoting freedom of expression had we not resorted to censorship by murder. It does not help either that our President, despite having a popular mandate, appears antithetic to criticisms. Nonetheless, the good news is that our media lawyers—led by Centerlaw’s Romel Bagares and Media Defense Southeast Asia’s Gilbert Andres—will be at the forefront of availing of international remedies to support the cause of expression in Burma, Vietnam and Cambodia. That’s good news.