For Yemen to be a true democracy, it must promote better freedom of expression [Archives:2007/1078/Reportage]
By: Nadia Al-Sakkaf
Organized by Yemeni Journalists Syndicate in cooperation with ARTICLE 19 organization, a two-day workshop for journalists was conducted to support liberal press law, which encourages freedom of expression and professional journalism.
In December 2005 a number of journalists led by the syndicate created 7 guidelines for a new press code to govern print media in Yemen. This action came as a response to a new version of the current Press and Publications Law number 25 of the year 1990, proposed by the Ministry of information and the Consultative Council. Journalists rejected the proposed draft as being more oppressive and limiting press freedom. However, the Yemeni government is still attempting to pass the new code, arguing that if the journalists think it is not a good law, then why should not they recommend another legislation and present it for discussion.
“Media in Yemen does not need a press law to govern the profession of journalist. We don't see a doctors' or a farmers' law, or that of any other profession. Then why should journalism have its own law? The freedom of expression is a right to all people and not just journalists and hence, practicing this right in established democracies is governed by civil laws,” said Saeed Thabet, first deputy at the Yemeni Journalists Syndicate.
According to Thabet, the syndicate tested the extent of government cooperation in a simpler issue regarding job descriptions of people working in the media. The minister of information dumped the proposed manual for job descriptions “not inside the drawer, but he simply dumped it underneath it.” The syndicate did not receive a response or reaction to their proposal for months and it put the credibility of the ministry's claim to accepting suggestions into question.
“Yemeni journalists of all affiliations should come together and agree on a better version of the press code which does not constrain freedom of expression. Let not our political differences blind us to what is best for our profession. We need to include modern international standards in media, in order to support democracy in our country,” said Hamdi Al-Bukari head of the professional and training affairs at the Yemeni Journalists Syndicate. Al-Bukari is initiating through the syndicate a national campaign to promote a better press code. With the assistance of international organizations, and cooperation between Yemeni journalists, the campaign would exert pressure on the parliament and decision makers to side by a freedom of expression.
Article 19 is one of the international organizations working on freedom of expression and one which had successful stories in promoting local media communities enhance the press freedom space in their countries. ARTICLE 19 is an international human rights organization, which defends and promotes freedom of expression and freedom of information all over the world.
One of the success stories of legislating freedom of expression, which ARTICLE 19 supported, is the Law of Georgia on Freedom of Speech and Expression. This is a progressive law and is considered a significant step in promoting freedom of expression in the country. It elaborates on the content of the right to freedom of expression, explains its fundamental status in a democracy and provides clear principles on when it may be restricted and the safeguards that need to be in place to prevent abuse of those restrictions.
ARTICLE 19 has been to Yemen on several occasions in the past, and funded events to promote better media legislation in Yemen in partnership with local organizations, under the framework of the organization's global campaign for freedom of expression. Sarah Richani, Middle East Programme Officer and Daniel Simons, legal officer represented ARTICLE 19 at the workshop.
“Media law is about two things: how to ensure people can express themselves and voice opinions through the media, and second how to balance this right of expression against other rights such as individual reputation or public safety,” said Simons at the workshop.
The right to freedom of expression
In order to truly guarantee the right to freedom of expression governments must work on two levels. Governments should not harass media or stop it from expressing views, and governments must take measures to ensure people can express their rights through providing a suitable environment for doing so.
Article 19, paragraph 2 of the International Covenant on Civil and Political Rights, the UN's main human rights treaty which Yemen ratified in 1987, defines the meaning of the right to freedom of expression. The definition includes five elements.
Everyone shall have the right to freedom of expression:
Everyone, regardless of nationality, gender, or age tc has the right to expression. Therefore, in essence a law which allows only Yemenis to work in the media violates this element of the article, as does a law which restricts the practice of journalism to persons with special qualifications or experience.
This right shall include freedom to seek, receive and impart information and ideas
This means freedom of expression is not only the right to publish but also to collect information. Therefore a law that prohibits journalists from accessing certain public facilities, or one which puts taxes on media outlets is a limitation on freedom of expression, because it creates obstacles against receiving or disseminating information.
Information and ideas of all kinds
Freedom of expression does not only include useful or correct information. It is about any kind of information regardless of type or context. It is precisely persons who have controversial or unpopular opinions who need the protection of the right.
Regardless of frontiers
It is a universal right that extends beyond political borders and information should be allowed to flow not only within countries but between countries. Governments should in principle not impose prohibitions against foreign information.
Either orally, in writing or in print, in the form of art, or through any other media of his choice
Regardless of the medium, the right of expression should be guaranteed whether it is through radio, TV, public campaigns tc. For example, a law which limits broadcasting only to government control violates this element.
The difficult balance
Yet, in order to balance freedom of expression with other rights of individuals and of society as a whole, article 19 paragraph 3 recognizes that the state can limit the freedom of expression. However, limitations have to fulfill three criteria before they can be allowed. Firstly, a law must be issued in which the limitation is clearly outlined. This gives people who want to use this right a chance to understand their boundaries and know if they are going to cross the line.
Secondly, the state has to have a legitimate purpose for legislating this limitation. International law recognizes only the following purposes as legitimate: protecting the rights or reputations of others, national security, public order, public health or public morals.
Finally, the limitation must be necessary to achieve its legitimate purpose. It must not be overbroad but narrowly drafted, so that it does not limit freedom of expression more than strictly necessary. In case of violating this, the penalty should be proportional to the harm inflicted by the person whose use of expression caused a harm of such nature.
Although the right of expression is guaranteed through any kind of media, the situation for broadcasting regulation raises special problems. In many established democracies, there are no regulations for the print media, because it is thought any person should be able to publish without official permission, yet there are regulations for licensing of radio and TV channels. The reason is that technical requirements impose a limitation of the possible number of stations sharing the same air. Therefore, an independent commission must be created to regulate the licensing of broadcast media. The overall objective of this commission is to create a balanced plurality in broadcast media. Usually, members of this commission are appointed by the parliament, the candidates are originally nominated by either the public directly or by stakeholders. In established democracies, the trend is that members of this committee must not be senior government employees or senior officials at political parties. They also must have a clean criminal record and not be investors in the local media. Other criteria are provided so that members reflect the diversity of the society and possess relevant expertise. A member of the committee may be removed after violating any of the selection criteria, or if the member cannot perform the duties due to ill-health or has violated his or her responsibilities as member of the commission. The removal must be confirmed by parliament and can be appealed against in court.
The independent commission will usually start by making a plan for the future of the broadcasting sector. This plan identifies how the available airwaves will be used, reserving frequencies according to three main classifications: whether it is radio or TV broadcasting; whether the coverage is national, regional, or local; and whether it is a state, commercial, or non profit broadcasting station. At each of these levels, the plan will reserve frequencies for different types of stations, for example with a focus on news, culture, sports or children. The granting then depends on competition between the applicants who must prove their worth of getting the license.
Yemeni Press Code and the Right to Expression
Lawyer Nabil Al-Mahmadi is the Yemeni Journalists Syndicate legal advisor. He described the Yemeni Press Code as a “clear violation of the constitution and of the international declarations Yemen has ratified.” He explained that there is an internal as well as an external dimension to freedom of expression as a matter of concept. The internal dimension prohibits the state to enforce beliefs and attitudes through legislations. For example, a law that forces journalists to respect Yemeni heritage violates this law because it tells them what to respect and his violates their right to personal convictions. “The tragedy is that there are laws in the Yemeni legal system in which the penalty for someone who disrespects the national heritage or historical achievements with the death penalty according to article 103 of the crime and penalty law,” he exclaimed.
Another example is that a journalist cannot advise of the parliamentary system as an alternative to the current ruling system used in Yemen.
Within the right to freedom of expression, there is the right to access of information. Through this right, the state should create a mechanism by which it facilitates people's access to information, and penalty to state employees who deny this right. However the Yemeni press code allows journalists to only access information that is already public. It even incriminates a journalist who accesses information from another source other than the person concerned, regardless whether the information is true or false. “How else will journalists do their jobs if only they have to get the information from the main source? Will a corrupt official give journalists the details of his bank account?” asked Al-Mahmadi.
The external dimension is related to the organization of the media outlet. The question must be whether the outlet is violating the freedom of expression article in its outcome. Yet the press code imposes restrictions on practical matters such as source of funding, shareholders, staff and internal charters. The ideal case is that media outlets should not be exposed to the threat of being shut down by authorities because of their structure regardless of their performance or outcome. The reality of the current press code violates the essence of the right to freedom of expression, according to Al-Mahmadi.