Blog: Freedom of Speech - A double edged Sword

The posting by Ms. Krishnee Bunwaree on Facebook messages or comments of an allegedly racial nature targeting a particular community and the article written by Mr. Darlmah Naeck have attracted diverse reactions, more emotional or even ethnic in nature than rational.

When the Prime Minister Navin Ramgoolam moots the idea of a Media Commission, all the media hound him as a criminal bent on wiping out freedom of the press in Mauritius. Yet hardly anyone in the media has approached the Bunwaree/Naeck episode from the angle of free speech and the right to write and comment on issue, even ethnic, in compliance with that right, subject to existing legal parameters. The major issue in that entire saga is where one draws the line between freedom of speech guaranteed in our Constitution and the right to pass comments on a specific religion or ethnic group and the presumption of innocence equally protected in the Constitution.

A religious leader made a statement that Ms. Bunwaree should be punished failing which there would be rallies. Religious leaders do not fortunately have the power to order prosecution. We still believe this is the prerogative of the Director of Public Prosecutions in secular Mauritius. The Deputy Prime Minister of secular Mauritius followed suit and stated the punishment should be harsh. The Deputy Prime Minister should have known that punishment depends on a finding of guilt and guilt is for the courts of law to determine on the evidence and according to the applicable law.

Religious leaders and politicians should exercise restraint when they are in presence of events that may endanger the social fabric. Two gentlemen have filed complaints with the police against Dharma Naeck and the police have summoned Mr. Naeck for questioning. Are we witnessing the start of a subtle pre-censorship by some members of civil society here, a move in which the police may be complicit?

The paper The Hindu reported on 6 December 2011 that Kapil Sibal, the Union Minister for Communications and Information Technology, had defended his demand that global internet companies block some content from sites they operate as they refused to delete incendiary hate-speech published on their social-networking websites. If this were to be attempted in Mauritius hell will break loose. The government will be accused of curtailing freedom of the press and international human rights organisations will pillory Mauritius.

Section 12 of our Constitution on the protection of freedom of expression provides:

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments; or

(c) for the imposition of restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.

While derogations are permissible from that right they must be reasonably justifiable in a democratic society and it is for the Supreme Court to determine whether this is so if a challenge is made against any derogation.

One such derogation exists in section 282 (1) of the Criminal Code which punishes any person who, with intent to stir up contempt or hatred against any section or part of any section of the public distinguished by race, caste, place of origin, political opinions, colour or creed (a) publishes or distributes any writing which is threatening, abusive or insulting ».

When the right to freedom of speech was inserted in the Bill of Rights of many States no one would have thought then that the gigantic leaps made by technology would bring in its trail complex issue on the protection and regulation of that right. A ruling by a Virginia district court [Bland v. Roberts] this year, states that clicking the Facebook’s “Like” button does not amount to a speech and will thus be outside the ambit of constitutional protection. Courts of law will have a long and complex battle in dealing with all the issue arising from technological communication and the protection of free speech.

Freedom of speech, that the media say is threatened in Mauritius, is a double edged sword. No media has dared say that in posting her message on Facebook Ms. Bunwaree was exercising her right of freedom of speech. The same applies to Mr. Dharma Naeck. The violent campaign against the late Israeli Prime Minister Ishak Rabin following his decision to agree to the Palestinian National Authority after he and the late Yasser Arafat signed the Oslo accords is thought to have led to his assassination. Equally it is believed that the media was a significant instigator in the in 1994 Rwanda genocide as the hostility between the Tutsis and Hutus, two different ethnic groups, was being allowed in view of freedom of speech. But freedom of speech is also important in enabling all of us to share ideas and opinions. All that is required is restraint and caution. But does anyone care in Mauritius? Today most of Mauritius is trying to find a scapegoat in the person of Krishnee Bunwaree and Dharma Naeck, not so much, to allow us to rethink our use of freedom of speech but to crucify, even without a trial if need be.
And this is happening in secular Mauritius in the 21st century.