Recently, Commonwealth Law Ministers unanimously adopted the Commonwealth Media Principles on Freedom of Expression and the Role of the Media in Good Governance. How will these principles expand upon the Commonwealth Charter’s Article 5 on Freedom of Expression?

William Horsley, CFOM International Director

Article previously published in The Parliamentarian (2023 Issue Three), the Journal of Commonwealth Parliaments published by the Commonwealth Parliamentary Association. It can also be viewed on page 224 of The Parliamentarian via this link.

In November 2022 a long, arduous advocacy campaign led by six professional and civil society associations resulted in a landmark event for the Commonwealth on the eve of the 10th anniversary of its Charter. The Commonwealth Principles on freedom of expression and the role of the media in good governance were first drawn up by that Working Group of associated professional bodies and published in 2018. After detailed scrutiny and some editing of the original text by member states during 2021, Law Ministers meeting in Mauritius unanimously adopted the 11-point Media Principles in their revised form.

The Charter’s Article 5 on Freedom of Expression makes a general commitment to “peaceful, open dialogue and the free flow of information, including through a free and responsible media, and to enhancing democratic traditions and strengthening democratic processes”. The Media Principles have put flesh on the member states’ commitments. They provide guidelines to address pressing concerns related to media freedom and the safety of journalists, which have risen up the United Nations and international agenda as the checks and balances of liberal democracy have come under extraordinary strain across the world.

Law Ministers acknowledged the valuable contribution of the civil society groups whose determination brought these matters onto the agenda of member state governments: the Commonwealth Journalists Association, Commonwealth Parliamentary Association, Institute of Commonwealth Studies, Commonwealth Lawyers Association, Commonwealth Legal Education Association and Commonwealth Human Rights Initiative. The project is in the spirit of the “surge in popular demand for democracy and human rights” which was recognised in the Charter.

The Law Ministers have recommended the Media Principles to Commonwealth heads of government who will meet in Samoa in 2024. If duly approved by heads, the Media Principles will have a place among the Commonwealth’s fundamental political principles alongside the Latimer House Principles of 2003, which provide a book of rules on the separation of powers and the constitutional functions of the three branches of government. The Latimer House Principles underlined the role of the media in promoting transparency and accountability, saying it “must be protected by law in its freedom to report and comment on public affairs”.

Commonwealth Law Ministers at their Mauritius meeting in November 2022

The Media Principles go further, stating that member countries should ensure that their public officials “respect their international legal obligations” and “establish a safe and enabling environment for journalists and media workers.” The part on media regulation (Art. 10) calls for independent broadcasting regulators and mechanisms to prevent undue concentration of media ownership — vital safeguards against manipulation and weaponisation of the media.

So the “fourth estate” is recognised as an organic part in the machinery of a functioning democracy. The attention and commitment of legislatures and the judicial authorities as well as elected governments in every country will be called on to make a success of this initiative in the eyes of the world. Article 4 addresses the role of parliaments in respecting the role of the media to inform the public and hold governments to account. These principles can encourage legislators across the Commonwealth to give a higher priority to oversight of the executive branch and amending bad laws. They imply, too, that parliamentarians should be strictly protected against reprisals for opposing arbitrary government actions.

How these guiding principles are implemented in the years ahead will be a test of the relevance of the Commonwealth in an age in which media manipulation and authoritarian forms of government present a grave risk to people’s democratic rights and the traditional liberal order.

Freedom of the press “under attack everywhere”

“Freedom of the press is the foundation of democracy and justice, the very lifeblood of human rights, but in every corner of the world freedom of the press is under attack”.

That warning by UN Secretary General Antonio Guterres in May this year came after UNESCO announced that 86 journalists were killed for their work during the past year, the highest annual death toll for four years. Mr Guterres has condemned the “pandemic of disinformation” and the increase in national laws that expand censorship, stating that “When journalists are targeted, societies as a whole pay a price”.

So it is disappointing that the Commonwealth Law Ministers did not act on the Recommendation placed before them by the Secretariat at their November 2022 meeting, which urged them to “take concrete and meaningful steps to implement the revised principles within their domestic frameworks.” Similar written submissions were made to the meeting by Commonwealth-affiliated organisations, but the call for follow-up action was not debated. The reluctance to match lofty declarations with practical actions in crucial fields of human rights protection is frustrating and discouraging to members of civil society whose role is precisely to “promote and support Commonwealth values and principles”.

The Charter contains the Commonwealth’s public commitment to “the Universal Declaration of Human Rights and other relevant human rights covenants and instruments,” and 47 of its 56 member states have ratified the all-important International Covenant on Civil and Political Rights, which is binding in international law. Yet the Commonwealth has clung to its self-imposed limitations as a consensus organisation and its self-image as a “family”, shrinking from the necessity to match fine words with deeds, in a world where critical public scrutiny has replaced deference.

For all the good work of its constituent parts, the Commonwealth’s refusal to adopt its own mechanisms to achieve member governments’ compliance with their public pledges, or to make public statements condemning blatant abuses of power, has diminished its credibility and profile on the international stage. Some serious historians and scholars on the Commonwealth have derided what they describe as its “empty pronouncements” and its “struggle with hypocrisy”.

To raise public understanding of the issues, last year the Commonwealth Foundation commissioned the Institute of Commonwealth Studies (ICWS) to conduct research into the environment for free and independent media in member states, which was published as the Media Freedom Summary Report shortly before the meeting of Commonwealth Law Ministers. The Report examined the trends, current environment and broad regional variations in major aspects of media freedom across the Commonwealth. It found that a total of at least 21 journalists were killed in 2021 and 2022 in member countries, and that the overall record of on safeguarding free and independent media is “in serious disrepair and urgent need of correction”. The Summary Report pointed to evidence of hostile conditions in member countries and regions arising from acts of violence and intimidation, censorship, arbitrary closures and state capture of media, and aggressive denigration of journalists by public figures.

Areas of acute concern include the arbitrary misuse of law, overly restrictive legislation, and a soaring level of impunity – as high as 96 percent in cases involving killings of journalists in Commonwealth member states, according to UNESCO’s Observatory of Killed Journalists. This troubling picture shamefully contradicts the Commonwealth’s public commitments to the rule of law and to the United Nations’ Sustainable Development Goals, including SDG 16 which calls for access to justice for all, and “effective and accountable institutions”.

Meeting international standards with actions, not just words

Kingsley Abbott, the present Director of the Institute of Commonwealth Studies, until recently held a senior post in the International Commission of Jurists. Commenting on the 10th anniversary of the Charter he said:  

Talk of “commitment” to the values contained within the Commonwealth Charter is meaningless unless states implement their international human rights legal obligations, including with respect to freedom of expression. Media freedom is being eroded aggressively around the world, including through legal and physical attacks on journalists, with hundreds currently imprisoned for merely carrying out their important work.  States need to end these attacks and amend or repeal laws being misused to target journalists. The international community, including the Commonwealth, must engage meaningfully with States failing to meet their international human rights obligations to seek compliance and offer assistance where appropriate. At the same time, support and funding should be provided to civil society, including media defence organisations, to facilitate monitoring and documentation of violations, access to legal aid for journalists and the use of strategic litigation. 

Professor Abbott’s prescription deserves serious attention from leaders who want the Commonwealth to flourish as a global actor which is not afraid of scrutiny and which can show it is capable of correcting serious democratic failings in its own ranks. Representative civil society groups want a meaningful plan of action, made in consultation with non-government stakeholders and experts, to implement the Media Principles; and a transparent process to review and update the plan periodically to upgrade the commitments and adapt to changes in the media environment.

Can the Media Principles text itself serve as a roadmap for actions taken together or by member states on their own authority? Yes, the CJA and like-minded Commonwealth professional associations believe it can. They urge the leaders of the 56 member states, as well as parliamentarians, public bodies and representatives of civil society, to use the forward-looking provisions which they have approved to fulfil those commitments without delay.

The Media Principles (Art. 2) say member states “should consider repealing or amending laws which unduly restrict the right to freedom of expression”. Commonwealth leaders are being publicly called on to repeal colonial-era laws that unduly restrict freedom of expression and criminalise journalists. Karuna Nundy, an advocate at the Indian Supreme Court and member of the High Level Panel of legal experts on media freedom is the author of a Research Report published earlier this year. It maps national laws on blasphemy around the world and urges the repeal of law dating from the colonial era which breach international standards of protection and are used to silence critical voices.

The Panel will issue further authoritative Research Reports that clarify how international standards should apply to other areas of law, including defamation and sedition, national security, hate speech and “fake news”, and Internet shutdowns. States can request the Panel’s advice on their domestic laws. For the Commonwealth the Research reports can prompt common action and provide expert guidance to achieve the aims set out in the Principles.

Article 7 states that member states “should put in place effective laws and measures to establish a safe and enabling environment for journalists and media workers to work without fear of violence”. The words mirror those in the UN Plan of Action on the Safety of Journalists and the Issue of Impunity. That multi-agency plan was launched in 2012 as a response to the worldwide increase in targeted attacks against journalist and newly emerging threats and barriers to their lives and work. The UN Plan’s multiple action lines and expert resources cover all aspects of protection, from  monitoring and building national protection mechanisms to raising standards of judicial independence and training public officials as well as journalists.  The Commonwealth can demonstrate its serious intent to fulfil the expectations of the Commonwealth Principles by “implementing the Plan of Action”, as Article 8 urges member states to do.

Article 8 says the states “should act decisively to end impunity through impartial, prompt and effective investigations” into attacks on journalists and “prosecutions to bring the instigators and perpetrators of such crimes to justice”. Assassinations of prominent journalists and editors have a particular resonance for millions who rely on their reporting to remain informed and make evidence-based decisions. The Commonwealth’s desperately poor record of 96 percent impunity in such cases represents a severe blot on its record which demands the attention of decision-makers.

Take the shocking cases of Gauri Lankesh, shot dead in 2017, who risked her life to speak up for marginalised communities in India; Daphne Caruana Galizia, the Maltese investigative journalist, blogger and government critic who was blown up in a car bomb attack, also in 2017; and Deyda Hydara, founder of The Point newspaper in Gambia, shot dead in 2004 in the capital Banjul after receiving death threats. Those murders all took place in Commonwealth member countries, and they are alike in one respect, that for years after the murders their families have not seen justice done and all those responsible duly punished.

How the Commonwealth can be part of the solution

In a lecture earlier this year marking the 10th anniversary of the Charter its main author, the former Australian judge Justice Michael Kirby, recalled how he and others closely involved had proposed the creation of a Commonwealth Human Rights Commissioner to counter “unacceptable” breaches of the Charter. When the idea was, in his words, “arbitrarily rejected” the reformists were dismayed, believing that without such a mechanism “nothing would ever get done”. The remark proved prescient. Civil society groups have since that time been dismayed at the failure of the Commonwealth Ministerial Action Group (CMAG) to live up to its mandate to oppose egregious violations of human rights and “systematic constraints on civil society and the media”. CMAG has proved too deferential and weak to challenge such abuses, prompting the jibe that it should instead be called a “Ministerial Inaction Group”.

The Commonwealth could yet learn from others and profit from their example. The Organization for Security and Cooperation in Europe, a consensus-based body with 57 participating states which grew out of the Cold War era, has created dynamic mechanisms with independent mandates in the fields of freedom of the media, national minorities, and democratic institutions and human rights. Those bodies lack powers to enforce remedial action, but they have significant influence thanks to the authority vested in them to act as watchdogs and publicly remind countries of their commitments, as well as delivering assistance to comply with agreed standards.

The time has come for fresh thinking, and the eleven Commonwealth countries which have joined the 50-member global Media Freedom Coalition are well placed to spearhead Commonwealth-focused reforms leading to effective protections for journalists and in law and in practice. The Commonwealth countries in the Coalition are Australia, Belize, Botswana, Canada, Cyprus, Ghana, Guyana, the Maldives, New Zealand, Sierra Leone and the United Kingdom.

The Coalition was set up in an initiative led by the UK and Canada in 2019, at the same time as the High Level Panel of legal experts. The moves explicitly acknowledged the organic link between media freedom and the rule of law, raising the protection of independent media as a “first-order” issue for international attention. Countries in the Coalition have signed a public pledge to promote media freedom at home and abroad through advocacy, diplomatic interventions at the highest level, legal reforms, events and funding; and the Coalition is committed to working closely with civil society, legal experts, multilateral organisations and journalists.

The Commonwealth has a ready-made pool of civil society experts and stakeholders who are able and willing to play their part, together with UNESCO and other guardians of international law. Les jeux sont faits.