FREEDOM OF EXPRESSION AND THE ROLE OF THE MEDIA IN GOOD GOVERNANCE

As Commonwealth Law Ministers adopt a new set of principles on freedom of expression, a member of the civil society working group that drafted them considers the next steps for their implementation.

David Page is a Senior Research Fellow of the Institute of Commonwealth Studies and a member of the Commonwealth Journalists Association (CJA) UK Executive Committee.

At their recent meeting in Mauritius in November 2022, Commonwealth Law Ministers took a big step forward in adopting a comprehensive set of standards for Commonwealth jurisdictions in the field of freedom of expression. Law Ministers unanimously adopted a set of eleven principles on freedom of expression and the role of the media in good governance and recommended that Commonwealth Heads of Government consider these principles at their next meeting in Samoa in 2024.

The Commonwealth Secretary-General, Rt Hon. Patricia Scotland, KC welcomed the Law Ministers’ decision, stressing that ‘the importance of the media, the fourth estate, to modern democracy cannot be overstated’. It is the first time that the Commonwealth has approved a comprehensive code of conduct which elaborates on the general commitment of all member states to freedom of expression, which is a key element of the Commonwealth Charter. With their endorsement by Commonwealth Law Ministers and recognition by the Commonwealth Secretariat, these media principles have achieved official status for the first time, and we hope that at the next CHOGM in Samoa they will become part of the fundamental values of the Commonwealth.

The endorsement of the principles in Mauritius is an important milestone on a seven-year journey which began in 2016 when the Commonwealth Journalists Association (CJA) decided to embark on the media principles initiative. That decision sprang from growing concern among CJA members at the increasing pressures and attacks on journalists and media workers in many Commonwealth countries and the need to do something about it.

The endorsement of the principles in Mauritius is an important milestone on a seven-year journey which began in 2016 when the Commonwealth Journalists Association (CJA) decided to embark on the media principles initiative. That decision sprang from growing concern among CJA members at the increasing pressures and attacks on journalists and media workers in many Commonwealth countries and the need to do something about it. The following year the CJA and five other leading Commonwealth organisations – the Commonwealth Lawyers Association, the Commonwealth Legal Education Association, the Commonwealth Parliamentary Association, the Commonwealth Human Rights Initiative and the Institute of Commonwealth Studies – agreed on a common objective and set up a joint working group to draft a set of principles in consultation with Commonwealth and other expert opinion. Those twelve principles on freedom of expression and the role of the media in good governance were launched at Senate House in London, UK in April 2018 and were widely welcomed.

The Commonwealth Secretary-General was very supportive of the initiative and made several positive public statements, stressing the importance of civil society as the third pillar of the Commonwealth and pointing to the parallel with the Commonwealth Latimer House Principles on the Separation of Powers, which had originated in a very similar manner before being adopted by the CHOGM at Abuja, Nigeria in 2003. Even so, it took almost three years of advocacy and discussions with the Commonwealth Secretariat and with supportive member states to find a means of putting the principles formally on the Commonwealth’s agenda. This finally happened in February 2021 when Commonwealth Law Ministers mandated the Commonwealth Secretariat to set up an expert working group of member states to review the media principles and to make recommendations. The working group of 26 member states under the chairmanship of Jeffrey Foreman of Jamaica conducted a very thorough review of the Media Principles in the second half of 2021 and made its recommendations in November of that year. It is that Committee’s revised version of the media principles which Commonwealth Law Ministers have now unanimously adopted.

As framers of the original principles, members of our working group were invited to participate in the review in an advisory capacity and witnessed some of the inevitable compromises involved in securing agreement among member states with very different track records in the media field. The revised document is not as strong as we would have liked it to be, something we made clear at the time. Compared with the original, it introduces phrases like ‘consider abolishing’ over-restrictive laws (principle 2) and ‘consider setting up’ independent and accountable oversight bodies (principle 11) instead of firmer commitments. But several of the original principles emerged substantially unchanged by the review process and reflect existing international best practice.

On the safety of journalists, principle 7 commits member states ‘to put in place effective laws and measures to establish a safe and enabling environment…’ and ‘to ensure that state organs and agents promote and respect international human rights obligations in relation to the safety of journalists’, which is a significant and welcome addition. But the original twelfth principle which called for collaboration between member states and civil society in the promotion and implementation of the principles was replaced by a looser reference to the role of civil society in the preamble. We were disappointed by that and feel it is essential that such a partnership is developed in the next stage of the initiative.

Now that the principles have been approved by Commonwealth Law Ministers, attention turns to next steps. The first and most necessary course of action is to publicise the media principles as widely as possible so that they can become a ready reference point for lawyers and civil society organisations around the Commonwealth. We hope that the CPA, with its extensive network of Parliaments and Legislatures across the Commonwealth, will be able to play a key role in achieving that wide dissemination. Commonwealth Parliamentarians can also play their role in promoting the principles and ensuring their wide use.

We also hope that the Commonwealth Ministerial Action Group (CMAG) will find the media principles an authoritative reference point in its monitoring of freedom of expression and other freedoms in member states. After the launch of the original media principles in 2018, the then Vice-President of CMAG, Hon. Marise Payne, the Foreign Affairs Minister of Australia, acknowledged their value for her colleagues. But despite the expansion of its brief in 2011 to include ‘significant restrictions on the media or civil society’, CMAG has never commented publicly on the media situation in any member state. The Commonwealth’s preferred means of persuasion always seems to be discrete diplomacy, though civil society organisations are looking to CMAG to take a more active public stance in holding member states to account when they stray from the values they are pledged to uphold.

As a voluntary association of sovereign states, the Commonwealth lags behind other international membership organisations in monitoring the performance of its members against the values to which they are committed. In all important matters, the Commonwealth Secretariat takes its cue from the member states and only embarks on policy implementation if there is consensus, if not unanimity, among them. This has meant that in the field of human rights or democratic governance, almost no action at all has been taken to reverse the marked decline in standards across many member states, which human rights organisations and others document annually.

The Institute of Commonwealth Studies recently produced a concise account of the state of ‘Media Freedom in the Commonwealth’, which makes it clear that in many countries the space for media freedom is increasingly restricted and there is an alarmingly high 96% level of impunity for those who kill or injure journalists. The Commonwealth Latimer House Group regularly issues press notes on severe breaches of the principles adopted by member states in 2003 with reference to independence of the Judiciary and of Parliament and the separation of powers. In many of these instances, it is partner, professional and civil society organisations who take the lead in drawing attention to serious breaches of the Commonwealth Charter’s obligations. The recent admission to the Commonwealth family of several new members without much apparent scrutiny of their adherence to the values enshrined in the Charter has raised fears that the organisation is moving away from its commitment to these shared values. The tenth anniversary of the Charter, which is celebrated this year, will be a valuable opportunity to assess where these trends are leading the organisation.

In this context, the Commonwealth Law Ministers’ adoption of the media principles must be seen as a hopeful sign – official recognition that more needs to be done to strengthen the Commonwealth’s performance in this field. But that will also require over the course of the next eighteen months, the development of a more detailed plan of action to address some of the key areas of present concern. The CJA in its response to the Mauritius decision has called on the Commonwealth to match its words with action: to review over-restrictive laws, to ensure the safety of journalists, to end the high incidence of impunity and bring those responsible for the killing or injuring of journalists to justice.

It also calls on the Commonwealth to align itself more closely with the UN Action Plan on the safety of journalists and to strengthen its implementation by member states.7 The working group of Commonwealth organisations which drafted the original principles has offered to work closely with the Commonwealth Secretariat to develop such a plan of action. Now that the Commonwealth Law Ministers have made their decision, we hope a stronger partnership can be developed to turn the media principles into a more positive reality.

Background

The Commonwealth Parliamentary Association is a member of the Working Group on Media and Good Governance which includes representatives from six Commonwealth organisations, including the Commonwealth Journalists Association, the Commonwealth Lawyers Association, and the Commonwealth Human Rights Initiative. In March 2018, the Working Group and its parent organisations agreed the Commonwealth Principles on Freedom of Expression and the role of the Media in Good Governance, which were launched the following month in London.

These Commonwealth Media Principles were developed as a response to the growing challenges to media freedom and to the critical role of the media in ensuring open public debate, fair elections and accountable democratic governance. They were developed after extensive consultation with senior figures from the Commonwealth Parliamentary Association, the wider Commonwealth legal and parliamentary community and other international experts. With their adoption by Commonwealth Law Ministers, they provide an agreed set of benchmarks to help the Commonwealth family improve its record on media freedom and accountable government in line with the Commonwealth’s strong commitment to the 2030 Sustainable Development Goals.

An earlier version of this article also appears in the latest newsletter from the Commonwealth Lawyers Association (CLA) - www.commonwealthlawyers.com.