Two and a half billion people, almost a third of the world’s population, live in countries that were formerly colonized, mainly by the British Empire. These countries are now part of the Commonwealth and have come a long way towards freedom since they gained independence. But the remnants of colonial law and oppressive legal cultures remain, and many of them penalize journalists. Offenses like sedition, criminal defamation, and libel remain on the statute books of these 56 independent nations, leaving whistleblowers and journalistic sources unprotected and media coverage chilled by the risk of massive civil damages.
Leaders of the Commonwealth, (formerly, the British Commonwealth), meet in Mauritius this week at the Commonwealth Law Ministers Meeting to discuss “Strengthening international cooperation through the rule of law and the protection of human rights.” They will consider, among other things, the proposed “Commonwealth principles on freedom of expression and the role of the media in good governance” (or the Commonwealth Media Principles). There is an opportunity here — with implementing mechanisms and oversight from Commonwealth institutions and civil society organizations — to undo specific restraints on press freedom.
As parties to the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights, countries of the Commonwealth already have a deep legal commitment to democratic principles and international human rights norms. The Commonwealth Charter specifically recognizes the obligation of States to uphold the right to media freedom:
“[We] are committed to peaceful, open dialogue and the free flow of information, including through a free and responsible media, and to enhancing democratic traditions and strengthening democratic processes.”
At the meeting in Mauritius, therefore, leaders of Commonwealth States have a duty to ensure that the suppression inherited from the colonial past does not affect the people’s democratic futures – and to adopt the Commonwealth Media Principles in their full strength.
What Are the Commonwealth Media Principles?
The Commonwealth Media Principles emerge from the values of the Commonwealth Charter and member States’ commitment to freedom of expression and the role of media in good governance. The principles set out clear and specific guidelines for national institutions of member States to respect and enable media freedom.
These principles were drafted in 2018. It was only in 2021 that the Commonwealth law ministers established an Expert Working Group to review them and make recommendations. After nine months of negotiation with delegates from more than 20 Commonwealth countries, there were several losses in the language and the strength of the principles. Provisions on protection of sources, response to over-restrictive laws, and contempt-of-court proceedings were severely diluted. This week’s meeting of the Commonwealth nations provides a crucial opportunity to transform these principles into more valuable commitments and establish the position of the Commonwealth as an international organization that leads on good governance and rule of law.
Principles of the Commonwealth have a record of bringing real change. The Commonwealth Media Principles are inspired by the success of the Latimer House Principles. The Commonwealth (Latimer House) Principles on the separation of powers and the constitutional functions of the three branches of government were adopted in 2003. They have since resulted in the 2005 Plan of Action for Africa, a blueprint for the promotion and implementation of the Latimer House Principles adopted by leaders of 18 Commonwealth countries in Africa, and the Edinburgh Plan of Action on the Development and Implementation of the Commonwealth (Latimer House) Principles, adopted by the Commonwealth Law Officers and partner organizations of the Commonwealth Secretariat to implement the Latimer House Principles.
Indeed, the Latimer House Principles have also been cited and relied on by the Supreme Court of Bangladesh and its High Court Division [e.g. in Government of Bangladesh v. Advocate Asaduzzaman Siddiqui CA 6 of 2017, Advocate Asaduzzaman Siddiqui v. Bangladesh WP 9989 of 2014] by the High Court of Kenya [J Harrison Kinyanjui v. Attorney General, Kenya CP 74 of 2011, Samson Vati Musembi v. Makueni County Assembly CP 18 of 2014, and Law society of Kenya v. Attorney General CP 3 of 2016], and by the Supreme Court of New Zealand [Trevor John Momo Wilson v. The Queen Case No. SC 4/2015]. The Latimer Principles have also provided authoritative and meaningful guidance and fostered dialogue in law-making by the Law Commission of India, Australian Law Reform Commission, and the Southern African Chief Justices’ Forum, among other countries. Freedom of speech and media independence are a core part of the Latimer House Principles.
If the member States of the Commonwealth adopt the specific standards and practices with respect to media freedom pursuant to the Commonwealth Media Principles, and if implementing and oversight mechanisms follow, their impact would be significant. The success of the Latimer House Principles is a testament to that.
Journalistic Freedom Under Threat
Journalistic freedom is under threat across the Commonwealth member States and the world. International organizations have responded to this. Indeed, the establishment of the inter-governmental Media Freedom Coalition, now numbering more than 50 States (12 of which are Commonwealth members, including the founding co-chairs, the United Kingdom and Canada) is a response to that threat. The High Level Panel of Legal Experts on Media Freedom, the coalition’s independent advisory body on which I serve, gives legal advice and recommendations to member States to promote vibrant and independent media. The Panel also advises individual States through legal opinions on draft legislation or legislation already in force. Further, the Council of Europe in 2016 adopted Recommendations on Protections of Journalism and Safety of Journalists, the United Nations Human Rights Council last month adopted a new resolution on the “Safety of Journalists,” and the International Press Institute in 2016 issued the International Declaration on the Protection of Journalists.
The Commonwealth Media Principles are clear guidance for member States to enforce. They would bring a renewed commitment to freedom of expression, in accordance with international human rights standards. Member States are encouraged to repeal legislation that unduly restricts speech such as sedition, and also to enact legislation to actively foster free speech through protection for whistleblowers and journalist sources. Member States are urged to enact legislation in line with the Commonwealth Freedom of Information Legislation guidelines. The relationship of media with branches of government, parliaments, and the judiciary is also addressed.
Further, in an age of disinformation, the duty of media organizations to self-regulate is also part of the principles. It calls for laws that protect journalists and end impunity for violence against journalists through swift state action. Member States are urged to uphold United Nations resolutions on the safety of journalists and to implement the U.N. Plan of Action on the Safety of Journalists and the Issue of Impunity. The principles also set out the importance of universal and affordable public access to media, and plurality of media.
However, to ensure that these principles are a rallying call to action, the principles must retain the spirit with which they were originally drafted. Further, there must be deliberation on a robust framework to ensure enforceability of the principles and oversight over implementation by Commonwealth member States. And for the Commonwealth Media Principles to achieve the objective of protecting the safety of journalists, ensure civic freedom, and reverse the erosion of democracy, the involvement of civil society organizations is essential. The law ministers in this week’s meeting must commit to working with civil society organizations to promote and implement the principles. The document also must include a provision for review and revision in the future, to adjust for important developments in media and international standards.
Strengthening the ability of the institutions of the Commonwealth to steer the actions of member States towards conformity with human rights obligations is vital. Aside from international and constitutional legal obligations, the leaders of the Commonwealth should recall that it is in the self-interest of democratic States to have independent media. Without such discourse, governments will not have channels to hear discontent or what citizens need. Governing is a dialectical process of making decisions, seeing their impact, and making changes accordingly. Without free speech, the continuous iterative effect of democracy vanishes. History is witness to what happens when citizens don’t feel well-represented or heard, and often the response is regime change.
By adopting a strong version of the Commonwealth Media Principles, member States may stand together and hold each other accountable. The Commonwealth cannot, like erstwhile colonial powers, stand silent and allow the persecution of journalists while democracy withers.
IMAGE: A photo illustration shows a man using the Indian news media company NDTV application on a mobile phone in New Delhi on August 24, 2022. An Indian billionaire close to Prime Minister Narendra Modi was trying to buy a broadcaster seen as the last major critical voice on television, stoking fears about media freedom in the world’s largest democracy. (Photo by MONEY SHARMA/AFP via Getty Images)
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