Daily Times

The right to express oneself and to say what one deems necessary to be said,is a pertinent right of every being. Only in certain instances can that right can be circumvented. What might be considered as freedom of expression in a certain country might be deemed as a trespass on societal norms in another country. People’s morality differs based on upbringing and culture.

When it comes to ‘freedom of expression’,different countries have promulgated a varied set of laws. What might be considered as ‘free speech’ in a country with a certain outlook, might be considered as ‘blasphemous’ or ‘immoral’ in another. Morality differs individual to individual,and so does the ability to be able to express oneself. An individual might get away with an innocent remark,a fair comment ora justified statement based on their thought process in a certain country;but the same ‘statement’ can cause anuproar in another.

Everyone has the right to freedom of expression,as long as it is not slanderous,discriminatory, libelousor promotes hateor violence towards a person or a group of people. Only states should be allowed to set these limits,for we as a civilized society have to follow a set of rules which govern our very existence. If there weren’t any set of rules;it would lead to anarchy and chaos.

For instance,if there were no traffic signals;or someone somewhere isunable to tell apart a red light from a green light,what then? It would only lead to chaos. The whole system would come to a standstill,leading to nothing but inconvenience for everyone involved. Living in a certain society,one has to abide by the laws set by that society. There may be certain outliers who consider the limitations placed on free speech by the state unjust. In many cases, this can be true; for example if the limitations placed on free speech prevent fair critiques of the government. However, if the state prohibits statements and actions in the interest of maintaining order, limitations on free speech may be justified.

Article 10 of the European Convention on Human Rights(Convention) is devoted to the preservation of freedom of expression and freedom of information. It states that “Everyone has the right to freedom of expression”.  The Convention also states, however, that laws can limit freedom of speech as “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

Article 10 of the European Convention on Human Rights states that “Everyone has the right to freedom of expression”. It also states that laws can limit freedom of speech as “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary”

As stated above,laws can be limited as ‘necessary in a democratic society.’ Each state has promulgated its own sets of laws according to its societal limits, norms,customs and traditions. The Court also held in the Ekin Association case that the rights recognised by Article 10 of the Convention are valid “regardless of frontiers”. So the existence of regulations relating specifically to publications of foreign origin would seem, in the Court’s view, “to clash head on with the wording of paragraph 1 of Article 10 of the Convention”.

The Court has over a number of years passed a number of judgements to uphold the authority and impartiality of the judiciary. The Court ruled on a case concerning an administrative fine imposed on the Chairman of the Bar Council following the publication of an article reporting his comments criticising a Constitutional Court decision. The Court found that the criticisms did not overstep the bounds permitted under Article 10 and concluded that there had been a violation of that article.

The Court in another case held that interference with the applicant’s freedom of expression was justified in the context of protecting the authority of the judiciary and the judge’s reputation. Weighing the various interests involved (the interests of the parties to the case, the requirements of the proper administration of justice and the dignity of the legal profession) and assessing the proportionality of the penalties imposed, the Court concluded that the application was inadmissible.

The Court declared inadmissible an application concerning a dismissal of a judge for misusing her authority in the pursuit of religious aims(Pitkevich v. Russia). The court only took into account the judge’s professional life not the views she had expressed privately.

The court in the case of Morice. V. France(where a lawyer had criticised  two judges in a leading daily) found a violation of Article 10 of the Convention and it was stated in particular that Mr. Morice had expressed himself through value judgments, which relied on a sufficient factual basis. Whereas,in the case of Fuchs v. Allemagne, the court held the application as inadmissible;stating that the lawyer in the interests of his client could not generally suggest that the expert had falsified the evidence.

The Morice judgment and the Fuchs decision result from very disparate circumstances,and come to a close in a very different way: a violation in one case and a finding of inadmissibility in the other. However they showed concern over the same issue ‘that of lawyers’ freedom of expression.The decisions in both cases differed according to whether the statements were made in a court of law or were made to the public in general,outside a courtroom.

When the statements were made outside a courtroom,the judges were of the opinion that the statements were made keeping the interests of the public at large in mind,considering it to be a fair comment on part of the lawyer;but a lawyer, whilst defending a client in a courtroom was chastised for declaring the evidence gathered by the sworn in expert as inadmissible, plastering it with the contention of being manipulated. The court deemed the lawyer’s statements as defamatory,since the sworn in experts should be be able to perform their duties without any perturbation, if they are to perform their duties to the best of their abilities.

Taking the aforementioned into account,what constitutes freedom of expression when it comes to uphold the sanctity of the judiciary, it greatly varies on a case to case basis. Where the court deemed the conduct out of proportions,it declared the application as inadmissible. Specific status of lawyers differs greatly from journalists. Lawyers are protagonists in the justice system,whereas,journalists impart information on all ideas of public interest including those relating to the administration of justice.

The writer is a corporate lawyer and an alumnus of SOAS, University of London. He can be reached at sami@samishahpartners.com

Published in Daily Times, December 30^th 2017.