APPENDIX 12
Memorandum from International PEN
FREEDOM OF EXPRESSION AND CRIMINAL DEFAMATION
1. International PEN, the world association
of writers representing members in 94 countries, has central to
its mandate the promotion of the right to freedom of expression,
which it sees as essential to the advancement of understanding
between nations and cultures, and thus towards international peace
and stability. Its Writers in Prison Committee (WiPC), whose headquarters
is based in London, has for over 21 years monitored attacks against
writers and journalists for the practice of this right, and has
on its records over 700 recorded instances of killings, arrests,
imprisonment, physical attack, and court proceedings in the past
12 months. International PEN's makes a unique contribution to
the international freedom of expression campaign through the mobilisation
of its members who are based in over 94 countries. Of these 50
are committed to reacting to attacks on writers when alerted by
the WiPC headquarters. All PEN centres are committed to furthering
the principle of free expression in their own countries, and often
provide a special insight and influence. Among the most influential
and active PEN Centres is the English PEN Centre, also based in
London, and whose 800 writer members are active in support of
their colleagues who are under attack.
2. International PEN and the English PEN
Centre thus welcome that the Foreign Affairs Committee's Human
Rights Annual Report devotes a significant section on the right
to freedom of expression. International PEN would like to take
this opportunity to bring to the attention the significant role
of criminal defamation in suppressing the rights of writers and
journalists to practice their profession without hindrance.
3. When PEN's Writers in Prison Committee
came into being in 1961, the bulk of attacks against writers who
spoke out against the authorities took the form of long-term prison
sentences. In the past decade, PEN has noticed a shift in the
pattern of abuse. While the number of cases it has on its records
has increased, those who are serving long sentences has declined
in all but a few countries. This development is welcomed, but
is offset by the growing use of court orders and non-custodial
sentences such as fines or suspended prison terms. In many countries,
outspoken writers and journalists find themselves entangled in
lengthy court proceedings, sometimes taking many months or even
years, and which take a heavy personal and financial toll. This
can have as depressing an effect on the state of free expression
as apparently more harsh forms of repression.
4. Criminal defamation laws are one of the
most widely applied legislative means of bringing critics of authority
to account. Leading government officials, even heads of state,
in many countries resort to the courts to prosecute those who
criticise them.
5. Mr Abid Hussain, Special Rapporteur on
Freedom of Expression to the United Nations Commission on Human
Rights, raised this issue in his recent reports to the Commission
(E/CN.4/2000/63 and E/CN.4/2001/64). In his reports, Mr Hussain
refers to the "chilling effect" that defamation laws
have on free expression and recommends that all criminal defamation
and libel laws be repealed in favour of civil laws, and that government
officials and bodies be discouraged from bringing defamation cases
as a means to silence their critics. However, PEN is sad to report
that this practice has continued in the past year and highlights
some notable examples.
6. In Zimbabwe, 2001 saw a continuation
of the generalised harassment of the independent media. This has
included serial defamation charges brought against leading independent
journalists, as well as the destruction of the Daily News printing
presses; and physical assaults on and death threats issued against
journalists. The repression of the independent media has now been
given a spurious legal sheen with the unconstitutional railroading
through parliament in January 2002 of several draconian bills,
two of which seek directly to muzzle voices critical of the government.
The Public Order and Security Bill makes it a criminal offence
to publish or communicate false statements prejudicial to the
state, or to make public statements "undermining the authority
of or insulting" the President. Since the bill provides that
those in power may decide when they have been insulted or when
the state has been maligned, practically any article written by
a journalist could conceivably be deemed to be contrary to the
provisions of the bill and earn the author a fine or up to five
years' imprisonment. The bill also grants the authorities wide-ranging
powers to "protect public order and security and to deal
with acts of insurgency, banditry, sabotage, terrorism, treason
and subversion". Those found guilty of transgressing this
law, or who are even suspected of having done so, face possible
life imprisonment or even the death sentence.
7. Turkey has the highest number of court
cases initiated against writers and journalists on PEN's records.
PEN was alarmed to note the Turkish International Association
of Human Rights (IHD) reported that in the first half of 2001,
over 1,500 individuals were before the courts for their writings
or publications. Many of these cases are of writers and journalists
accused under Article 159 of the Criminal Code that penalises
writings seen to "insult" the military, the state, parliament
and even the judiciary itself. In all cases the authors of the
"offending" articles had simply practiced their right
to criticise and comment on what they see as the shortcomings
of these various institutions. Whatever the legitimacy of the
authors' comments, it is quite apparent that in Turkey, criminal
libel laws are being used to stifle criticism of state policy.
In the vast majority of cases, the defendants are acquitted after
lengthy trials, or sentenced to suspended prison terms or fines.
Imprisonment is rarely applied. However, the drawn-out judicial
process, usually taking several months and in some cases years,
serves as an effective means of discouraging others, while at
the same time less likely to draw international condemnation.
8. Independent journalists in Belarus face
a daily battle to provide an alternative voice to that of the
State's, and their plight has been high on International PEN's
agenda for a number of years. Here too criminal libel laws are
used to quell dissent. One of the most recent cases concerns the
closure of the independent newspaper Pahonia in November
2001, and the charges brought against two of its staff who face
trail on charges of "insulting the honour and dignity"
of the President of Belarus in articles published in the paper.
If found guilty, the journalists could be imprisoned for up to
five years.
9. Insult to the state and its institutions
is also one of the charges that has led Iranian writers
and intellectuals before the courts. Over 20 writers and intellectuals
are currently in prison or on trial for their writings or for
their association with "dissident" organisations. These
are charges that PEN considers to be in direct contravention of
their right to freedom of expression and association. Five of
the writers currently detained or on trial are specifically charged
with "insult" either to the Islamic State or Iran or
towards government officials. The 1985 Press Law enables the Ministry
of Information to detain writers and close down publications that
are deemed to have insulted the Leader of the Islamic Republic
or state bodies.
10. Other countries where PEN has raised
its concerns about the use of criminal defamation laws in the
past year include: Algeria, Armenia, Azerbaijan, Chad, Chile,
Democratic Republic of Congo, Ecuador, Ethiopia, Guatemala, Kazakhstan,
Mexico, Morocco, Nigeria, Slovakia, Sri Lanka, Sudan, Tonga, Tunisia,
Ukraine, Uzbekistan, Yemen, Yugoslavia and Zambia. The number
and range of countries that have prosecuted writers and journalists
under criminal defamation legislation is a mark of how widespread
the practice is.
11. International PEN welcomes this opportunity
to once again raise with the Foreign Affairs Committee its concern
about the widespread use of criminal defamation prosecutions as
a means to stifle dissent, a direct contravention of Article 19
of the Universal Declaration on Human Rights. It recommends that
the UN Special Rapporteur on Freedom of Expression's recommendations
that criminal defamation laws be repealed as a means the significant
world wide improvement of the right to freedom of expression highlighted
in the Foreign Affairs Committee's deliberations on the protection
of human rights.
International PEN
15 January 2002
|
