Idunn Helle* and Mahmudul Hoque Moni*

Oslo, September 10, 2014 (Alochonaa):

Introduction: Definition and Scope

The struggle for freedom of speech and expression was framed in theory long before John Stuart Mill (1806-1873) in his famous book On Liberty stated:

‘If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind’ (1978, p 16).

What started with Mill was developed under the enlightenment period in the 18th century (Orgeret, 2011, pp. 6-16), and with the emergence of democratic exercises in political process freedom of expression became an instrumental movement for liberal democracy. After the Second World War, freedom of expression was granted as a basic human right by the United Nations in 1948 through the Universal Declaration of Human Rights (UDHR). Article 19 of the International Covenant on Civil and Political Rights (ICCPR) states:

‘everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice’ (UN, 1966).

Today, almost all democratic societies claim to support this as a civil and political right (Donnelly, 2006a, p.2).

But Freedom of Expression as a fundamental human right has drawn much attention in recent times, especially with the emergence and exercise of different forms and practices of governance in different societies. Universalism has proved a complex term to put into practice: despite the broad international support for the UDHR, its implementation depends on every individual state, and has been done to varying, and in some cases, limited, extents (Donnelly, 2006b, p. 606). This has particularly been the case in contexts where rights have been criticised as a profoundly Western concept imposed on other cultures (e.g. Brown, 1999, p. 111, Donnelly, 2006a, p. 9). Still, theorists with a diversity of cultural backgrounds have defended the universalism of rights as being result of modernization, permitting “oppressed people to help shape their own destiny and culture” (Rønning, 2009, p. 18). As he also explains, ‘it is, however, necessary to analyse the concrete social and political conditions of each particular society before deciding which types of organizations, which mechanisms of political association, and especially, how fundamental rights are to be secured’ (2009, p.16-17). To study freedom of expression, it is therefore necessary to study the context in which it takes place, guided by formal and informal institutions.

This article attempts to look into the freedom of expression only through the constitutional, legal and institutional perspectives by using Neo-institutional Theory, Public Sphere and the Nordic Welfare State Model.

Theoretical Framework

Neo-institutionalism (March &Osclen, 1984) or historical institutionalism is a nebulous set of social scientific theories that emphasize the role of institutions as important variables for explaining social phenomena (Bratsis, 2008 p. 162). According to Alistare Cole, the institutions give meaning to interactions and provide the context within in order to frame the political outcomes in a society. It is often used to ‘analyse the governing instruments in the context of political power relations. It reflects the theoretical perspective that the emergence of effective democratic institutions is dependent upon the emergence of an independent media system.’ (Ahmed, 2009 pp. 60-66) This theory primarily guides this article. Then, the legal framework to facilitate and restrain freedom of expression in society is explained by the role of it to facilitate the Public Sphere (Habermas, 1991). While discussing the exercise of freedom of expression in line with The Media Welfare State-model(Syvertsen & et. al, 2014 forthcoming ), examples will be used to compare and contrast the situations in Norway and Bangladesh.

Compared Freedom: Norway and Bangladesh

Norway and Bangladesh are similar in that they are democratic nations with systems safeguarding, and, to a certain extent, limiting the freedom of expression. The countries have some common formal and informal institutional practices to facilitate as well as to regulate the freedom in this regard, but still there are many areas where the experiences have not been very similar. The shape, intentions and practice of the systems vary greatly, and this is what is explored in the following sections.

Constitutional Bases

In both countries it is the constitution that safeguards the freedom of expression of citizens. In Norway, article 100 of the constitution details the right of access to public documents, promotion of public debate, and protection of children from harmful material (Stortinget, 2013). Norway also abides by theEuropean Convention of Human Rights (ECHR), incorporated as a part of national legislation in 1999 – with supremacy (Øy, 2013, p. 25).

Similarly, section 39 of the constitution of Bangladesh guarantees freedom of thought and conscience, but, in contrast to the Norwegian case, it comes with a range of caveats:the right is subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence;the right of every citizen to freedom of speech and expression; andfreedom of the press are guaranteed (GOB, 1972).

In this way, the constitutions in principle guard the same right, but the question is how the different framings and social and political contexts lead to different practices.

Legal Aspects

Apart from the constitutional and ECHR based rights, Norway only has three civil law articles directly concerning the freedom of expression, and they more specifically relate to press freedom. This is directly linked to the political context, and its extension to the media. Syvertsenet. al.’s concept of the media welfare state (forthcoming 2014) go very well with the objectives of these articles; the right to editorial freedom; limitations on media ownership and; regulations of broadcasting (Øy, 2013, p. 24-25). Although “stronger regulations of media industries” (Hallin and Mancini, 2004, p. 161) is a typical feature of the Democratic Corporatist Model that they accredit Norway to, there is no general law on media. Apart from the previously mentioned legislation, Norwegian media only relate to civil law, and their own self-regulatory system, again a feature of the media welfare state (Syvertsen et. al., forthcoming 2014). In that respect, individual freedom of expression is safeguarded in the constitutional framework, and not particularly regulated by legislation.

In practice, the scope of individual freedom of expression has also widened throughout the last two decades (Bangstad and Vetlesen, 2011, p. 336). The last court conviction directly concerning violation of the freedom of expression was of an extreme-right politician accused of racism in 1997 (Bangstad, 2014, pp. 20-21). Since then, the case considered creating precedence in these issues is that of neo-Nazi TerjeSjølie, who in 2002 was accused of hate speech, but won the case as the court judged he was protected under the right to freedom of expression (Ibid: 13-14).

On the other hand, the independence of Bangladesh both authoritarian civil and autocratic military governments have ruled it term by term. Though there is no special law to control the media or opinion, many researchers have found that a number of laws have been used to limit the freedom of expression in Bangladesh. For instance, Abul Mansur Ahmed (2009) found that till 2009 there are at least thirteen other laws that have clauses or sections that can be used to restrain the freedom of expression and press. Penal Code 1860 which is still the main law of punitive actions in Bangladesh has a section of blasphemy law (section 501) (Orgeret,2011, pp. 6-16). Indeed, judicial harassment of journalists by way of defamation charges, under sections 500, 501 and 502 of Bangladesh’s Penal Code of 1860 and under the Code of Criminal Procedure of 1898, has been common. Similarly, the Special Powers Act of 1974 allows detention of up to 120 days without charge and in the past this law was used to arrest journalists(Hasan, 2011). After the restoration of democracy in 1991, a major institutional paradigm shift took place. A more tolerant and democratic mindset to facilitate the freedom of press was observed and as a result, the number of private media increased for a short period. In 2009 the Right to Information Act helped freedom of information and, as an institution news and information became strongly visible.

The latest amendment (2013) of the Information and Communication Technology Act 2006 was in 2013,and now has a number of sections which delimits the scope of opinions and exercise of freedom of expression through online media.

Institutional Frameworks

Although the legal scope for the exercise of freedom of expression can be seen as broadened in the last twenty years, this is not necessarily true in practice.

In Norway, freedom of expression in the media is mainly subject to a complex system of self-regulation. If the definition of ‘institution’ also includes the neo-institutionalist notion of ‘informal routines, rules, norms and guidelines for behavior spanning across organizations’ (Allern&Blach-Ørsten, 2011,p.26), it becomes clear that Norwegian press is highly institutionalised, also regulating the way it exercises its freedom of expression. A non-legally binding Code of ethics has been developed, and its provisions are more detailed and stricter than the law, for example by emphasizing protection of sources and vulnerable persons, as well as integrity and fairness (Norwegian Press Association, 2013). Complaints and violations are treated by the Press Association’s commission of lay- and media-people, if having breached press ethics,editors voluntarily publish the commission’s statement.This also adds strength to the consensus-feature of the democratic corporatist model: not only is the media supposed to create social consensus, it is also regulated through consensus (Hallin & Mancini, 2004, p. 277). This system also emphasises the second principle of Syvertsenet. al.’s media welfare state model, i.e. that of editorial freedom. In Norway, editors are free to publish without state interference, and so they have made system to regulate this (forthcoming, 2014, p. 18). The only legal state intervention in the press is through subsidies and tax regulations, actually aiding the public sphere in being more diverse, not limiting it by posing impositions (Syvertsen et. al., forthcoming 2014, pp. 54-55).

In this way, most of the limitations posed upon the freedom of expression in Norway are imposed on the media, by the media.In Bangladesh, a number of organizations have been set up to facilitate or regulate the freedom of expression. The press council, the Human Rights Commission, the Information Commission, Bangladesh Telecommunication Regulatory Commission, Bangladesh SongbadSangstha (BSS), Press Club, Journalists’ Associations and many media organizations are operating to create the institutional framework to increase as well as to control the freedom of expression. Through the operation of hundreds of regular daily newspapers, more than 30 news channels and a number of credible online media, Bangladesh has successfully created the space of pluralistic opinion based public sphere. Contrary to the Norwegian example, the political forces within and outside of the government have always used media to limit the freedom for their own interest. In many cases, journalists were brutally killed, and in a few cases writers have been attacked or deported.

In 2003 Humayun Azad (a prominent writer) published Pak SarJamin Sad Bad, a political satire exposing the politics and ideology of Islamic fundamentalists. This book was also met by a lot of criticism and it was demanded that it should be banned and that the Blasphemy Act should be introduced on the author. In February 2004, Professor Humayun Azad became victim of an assassination attempt near Dhaka University campus during the annual book fair. He died in Germany six months later (Orgeret, 2011, p. 11).

The present government came to power early this year and due to the political crisis in the last election, the main opposition political party alliance did not participate in this one. As a result, the democratic environment is missing. For several months freedom of expression was questioned through several cases. A few times social media like Facebook andYoutube were blocked; few media outlets have been shut down. Recently, a lecturer of a public university was summoned due to his Facebook status update, and a month ago a joint editor of a news paper was summoned due to his article criticizing the bail system of the judiciary system. Recently, a homosexual organization named Boys only Bangladesh raised their voice to repeal the punitive 377 section of the Penal Code 1860 (Ebert & Moni, April 8, 2011) but their demand was highly criticized by Islamic political parties.

It is clear that, despite having constitutional guarantee, the freedom of expression in Bangladesh is often seized through some legislative and institutional instruments by the governing political forces.

Key Observations

Though there are some basic similarities regarding the constitutional and legislative frameworks in Norway and in Bangladesh, their practices are very different. That is why, in Norway a higher level of freedom of expression is observed than in Bangladesh.

It is mostly the political and social institutions that facilitate freedom of expression in Norway, while in Bangladesh they are used by political forces to delimit the freedom of conflicting thoughts.

In Bangladesh many individuals including writers and journalists have been the victims. In Norway, such cases are rarely found.

With the emergence of social media, to control the freedom of expression has become more difficult and complicated.

The freedom of press and opinion in Norway plays an important role to create a welfare society. In Bangladesh, in spite of having all democratic institutions, the public sphere is not fully open and pluralistic.

Conclusion

In this article, we argue that Norway’s democratic tradition and welfare state system has spilled over into the media sphere; freedom of expression is safeguarded mostly by non-legal institutions, facilitated by wide consensus and trust, as well as a state that enables, not regulates, the public sphere. In Bangladesh, however, democracy is still new, and freedom of expression is controlled by a series of laws designed to increase the state’s influence in these matters. Still, the media landscape is diverse, with more media outlets as well as press associations, making sure state influence is challenged.

It has been shown that freedom of expression is a broad concept defined by context, and that practices can vary, despite similar constitutional bases. It has also been emphasised that extensive legislation and institutionalisation does not necessarily lead to a stronger protection of the right.

*Idunn Helle holds a Bachelor in International Relations from Durham University, UK. She is currently doing a Master degree in Applied Cultural Analysis at the University of Copenhagen, studying private sponsorship of NGOs. She can be reached at idunn.helle@hotmail.com

*Mahmudul Hoque Moni is a media analyst; currently working as an Assistant Commissioner and Executive Magistrate in Bangladesh. He is masters in Journalism, Media and Communication from the University of Dhaka. He can be reached at mhmoni24@yahoo.com

All references for the article can be accessed here.