Jamal Khashoggi’s Death: Murder of Freedom of Expression?

Reading time: 5-6 minutes.

More than one year has passed since the death of prominent Saudi journalist Jamal Khashoggi who has been confirmed to have been killed by the Saudi Assassins in Saudi Consulate on October 2nd 2018 in Turkey. Along the lines of complex diplomatic circumstances, justice is still inconspicuous for Jamal Khashogii who criticized the policies of Crown Prince Mohammed bin Salman.

Journalists have a vital role in rendering voice to the voiceless, henceforth it is the responsibility of the local government to ensure safety of the journalist who voice their discontent against the wrongdoings.

According to the Director-General Report on Safety of Journalists and Danger of Impunity, UNESCO has received details on 657 cases out of 1010 cases which were condemned by the director-general between 2006 and 2017. The information collected is depressing as it shows that only 115 cases have been judicially resolved, signifying an overall resolution rate of 11%.

The Arab States have registered the highest rate of impunity along with the top number of journalists being killed with only 5% of the cases declared as resolved. The States should make a conscientious effort to investigate threats and prevent killing by subsequently penalizing the persecutors and rendering justice to the victims.

Violence inflicted against the press, in any form ranging from threats, illegal detainment, harassment, kidnappings, physical attacks, or murder, is an assault not only on the civilians, but also on fundamental principles of democracy, namely “transparency, accountability, as well as the right to hold opinions and to participate in public debates.”

The act of aggression subjected against journalists effectively stunts the freedom of expression and press. The Universal Declaration on Human Rights (UDHR) in 1948 has acknowledged in Article 19- “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The global legal system to a large extent has failed to ensure the safety and liberty of the journalists. According to International Freedom of Expression Exchange, in 9 out of 10 cases, the attackers were never prosecuted and this inconsiderate and glaring exemption from prosecution is perpetuating the cycle of violence against journalists and needs to be notably addressed.

In an address made explicitly by the Human Rights Committee, it emphasized on the safety of the journalists by stating-States parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression. Paragraph 3 may never be invoked as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights. Nor, under any circumstance, can an attack on a person, because of the exercise of his or her freedom of opinion or expression, including such forms of attack as arbitrary arrest, torture, threats to life and killing, be compatible with article 19. Journalists are frequently subjected to such threats, intimidation and attacks because of their activities. So too are persons who engage in the gathering and analysis of information on the human rights situation and who publish human rights-related reports, including judges and lawyers. All such attacks should be vigorously investigated in a timely fashion, and the perpetrators prosecuted, and the victims, or, in the case of killings, their representatives, be in receipt of appropriate forms of redress.”

International Federation of Journalists in Article 1 lays down its purpose as –The purpose of the present Convention is to promote, safeguard and ensure the safety of journalists and other media professionals in times of peace and during armed conflict, and to safeguard their ability to exercise their profession freely and independently in an enabling environment, without facing harassment, intimidation or attacks against their physical integrity.”

Article 6 of the statute provides for effective investigation by conducting thorough and effective investigations into all the attacks and threats against journalists and media professionals. The States shall endeavour to implement efficacious methods to combat impunity for those who commit crimes and inflict physical attacks on the journalists and media professionals.

Special investigations must be carried out in special cases by exercising national mechanism instituted by law of the particular government where the incident has taken place. One of the main provisions put forth by this article is that, if it is found that the impugned attack on the journalist had any nexus with his profession then this shall be treated as an aggravating circumstance or factor in that criminal proceeding.

Also, the United Nations has composed a UN Plan of Action on the Safety of Journalists and the Issue of Impunity which will formulate a “comprehensive, coherent, and action-oriented UN-wide approach to the safety of journalists and the issue of impunity”, with an aim to create a secure and free environment for journalists and media workers, both in non-conflict and conflict conditions. As most of the journalist killings are non-judicial in nature therefore, the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions may be exercised to provide “thorough, prompt and impartial” investigations.

Journalists can resort to remedy under Article 2 of Optional protocol to the ICCPR if any of their rights conferred on them by the Covenant has been violated. Hereunder is the pertinent provision-Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.”

In the landmark case of Afuson Njaru v. Cameroon where a journalist was beaten, given repetitive threats against his life by the police, suffered psychological pain and was arrested without a warrant because he published articles criticising violence and corruption of the security forces. All the actions taken against him is an outright violation of Article 7 and Article 9 of ICCPR.

The Human Rights Committee concluded that the journalist is entitled to remedy under Article 2(3) (a) which provides remedy against any violation committed by a personnel acting under official capacity. Article 2(3) (a) reads as follows- “To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”

In cases of serious crimes, the jurisdictional arbitrage can be dispensed with and instead the doctrine of universal jurisdiction must be invoked. It can be invoked by any state or international organizations claiming criminal jurisdiction to try an accused person irrespective of the place of commission of the crime and without taking into account the nationality or any other connection of the accused with the prosecuting body.

Any war crime or intentional attack on the civilians or journalists will amount to a grave violation of the Rome Statute and the Geneva Conventions respectively. Further, Rule 34 of the Customary International Law provides for prohibition of attacks on civilian journalists exercising their professional activities in situations of armed conflicts.

Similarly, Article 79 of the Additional Protocol I of the Geneva Convention has laid down that the protections and rights imparted on the citizens in international armed conflict zones must be made available to the journalists. Essentially, it is the duty of the state to investigate and indict the accused when the crime lies within their jurisdiction. However, in case they are unwilling or unable to do so, the jurisdiction to hear the case will be shifted to the International Criminal court.

Despite Finland reserving the top spot when it comes to freedom of press ranking, the Finnish journalists have been facing extensive online threats and harassments. However, the Finnish courts set an evolutionary precedent by convicting the instigators of an online harassment campaign against Jessikka Aro. Such actions will act as a deterrent. A legal framework of stringent and comprehensive safeguards ought to be formulated apart from just condemning the act of violence.

An effective coordination among the federal and local prosecutors, legislators and police can help in combating impunity in killings of journalists. Also, a special prosecutorial office can be appointed solely with the objective of carrying out investigations in cases of violence against journalist. Henceforth, it can be said that such acts of violence against the torch bearers of society is alarming for any nation and such degree of violence, ought to be done away with in order to secure the ends of justice.

-This article is brought to you in collaboration with Shreya Sahoo from National Law University, Odisha.

Article 19: Boon or Bane?

Reading time: 4-5 minutes.

There is an old adage – “Of two evils choose the least”. The makers of the constitution, sagacious people as they were, possibly faced this quandary while framing Article 19. They knew that this could be a double edged sword – on one hand the freedom of the citizens had to be provided for in its deepest interpretation; and on the other hand, there had to be checks and balances to prevent the obvious possibility of misuse that such rights entail.

Indeed, the sheer number of amendments made over time, to this article in order to pre-empt the possibility of the latter, is testimony to the overbearing nature of the seamy side of human conduct. Most of these alterations had to be made within the very first decade itself of the Article coming in. The philosophical dilemma is inherent; and this is not specific to India but evident across the world.

One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, had travelled to the United States, where he had met Justice Felix Frankfurter for a comprehensive discussion on the lines in which Fundamental Rights should be drawn up.

There are strong influences on the Indian Constitution from U.S. principles, especially in the Fundamental Rights – even, the American doctrine of “due process” which had been rejected by the framers of our Constitution at the time of its enactment; had later found its way in, through judicial pronouncements.

Some observations of persons of letters from that country relating to the underlying principles reminiscent of our Article 19 are noteworthy. On one hand, we have Madeline L’Engle saying – “Because to take away a man’s freedom of choice, even his freedom to make the wrong choice, is to manipulate him as though he were a puppet and not a person.

And on the other hand we have J. Martin Kohe cautioning – “You possess a potent force that you either use, or misuse, hundreds of times every day.” With Jon Ronson chipping in – “Misuse of privilege is seen as the worst sin.” And Adam Hamilton summarizing – “While some misuse their freedom to perpetrate evil, millions respond by feeling compelled to use their freedom to do good.

From a constitutional angle, the position can be ascertained from the words of Thomas Hardiman – “Those who drafted and ratified the Second Amendment were undoubtedly aware that the right they were establishing carried a risk of misuse, and States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk. But States may not seek to reduce the danger by curtailing the right itself.

Similar view was adopted by the makers of the Indian constitution as well; the need to balance both sides was reflected in the enabling provisions of 19(1) being followed immediately by the limiting provisions of 19 (2 to 6). But over time, the ingenuity of the crooked human mind got the better of it and have found ways to subvert and exploit the chinks in the provisions.

Thus, we have freedom of speech bringing in hate speeches for ulterior political gains; freedom of assembly being given the shape of rallies and road blockades holding daily life to ransom; trade unions being used to stoke labour militancy leading to closures, lockouts and unjust enrichment of union leaders; freedom of movement and residence as a means for crass urbanization steamrolling natural rural life; freedom of trade in dishing out junk food, intoxicants, pesticide-laced vegetables and hormone-injected livestock; and freedom of occupation to promote privatization of crucial medical care leading to affordability issues for many.

These are just to mention a few – only the tip of the iceberg perhaps. The gravest concern is possibly the juggernaut effect that is getting built up day by day – exploitation of loopholes by some is encouraging newer takers for such unwholesome means. Thus, the unfortunate fact remains that Article 19, instead of conferring the presumable salutary effect of society at large; is effectively proving to be a breeding ground for sharks – people in search of a fast buck willing to throw scruples and niceties to the wind.

But surely, such an important fundamental right cannot be given a go by; and at the same time we cannot go on lengthening the restrictions in 19(2) onwards – in the pursuit of plugging ever-new holes that keep cropping up. Perhaps it would not even be prudent to plug up all the holes – it is a proven fact that liquor ban leads to bootlegging and tobacco ban leads to increased sale of contraband narcotics.

Outright proscription would lead to difficulty in enforcement – monetary costs would go up in terms of the need for more personnel, technology and equipment. Even social costs may be too high – people may turn to armed hostilities to get their demands met leading to chaos, encrypted social media to disseminate propaganda which cannot be controlled and consumption of hooch leading to mass poisoning. All these actual and possible afflictions undermine the very bedrock of responsible use of freedom; that had underpinned the conferral of these rights to the people.

The frustrating situation is akin to what U.S. President Harry Truman had summarized in his famous quote in the context of pressing economic problems – “Give me a one-handed Economist. All my economists say ‘on one hand…’, then ‘but on the other hand…”

Perhaps for now, the only way is to hope that sanity would prevail in the larger plane of social goodwill at some inflection point; and a new horizon would evolve for our progeny. Let us not forget the basic belief reposed on the citizens by the framers of our Constitution – that the rights which they conferred with the trust for responsibility would not be misused.

To conclude, the words of M. K. Hobson come to my mind; with the aspiration that realization of the same will gradually sink in to all and sundry; even though it may take time and the route may be tortuous – “I’ve just always been fascinated by what our belief can do, and what happens when we misuse that”. Let us all look forward to that day; when good sense would dawn – let’s await our tryst with destiny.

-This article is brought to you in collaboration with Sourish Roy from Indian Institute of Technology (IIT), Kharagpur.