Inventing Democracy

Bill Keller

The New York Times

This is a great vantage point for watching the Arab world struggle to tailor itself a set of new democracies. It is nearly a generation since South Africa assembled its warring peoples and wrote what is certainly the most progressive constitution in Africa, perhaps on the planet. It prescribes all the safeguards of a democratic, humane and inclusive society. Its experience should be a shining model for the aspiring democracies at the other end of the continent as they fabricate basic laws and institutions.

I wish I could say the lessons from here are easy. But it is becoming clearer by the day that a glorious constitution carries you only so far if its values have not taken root in the culture.

So South Africa has an exquisite balance of powers on paper — but is, in effect, a one-party state, riddled with corruption. It has a serious independent judiciary — but is now contemplating loopholes to let tribal courts practice South Africa’s version of Shariah. This country was years ahead of the United States in recognizing the rights of homosexuals, including same-sex marriage — yet there is no openly gay leader in the ruling African National Congress, and lesbians have been targets of punitive rape and murder. It has a vibrant, diverse press — and a president who keeps trying to muzzle it.

As a witness to its birth, I would not say the thrill of South Africa’s democracy is altogether gone. South Africans are resilient, blessed with tourist-alluring beauty and abundant natural wealth; there is a growing black middle class and a robust civil society. And 18 years is still young. But I imagine that some days the news — if it penetrates the fog that I’m told enshrouds the 94-year-old Nelson Mandela — must break his heart.

In the course of a reporting trip for a forthcoming article, I’ve been asking some of the authors and guardians of South African democracy what advice they would offer to an Egypt, a Libya, a Tunisia and other places that are struggling to emerge from various forms of oppressive rule. Here’s how I’d sum up the best suggestions.

Take your time, talk to everyone and don’t be too proud to borrow.

For South Africa, there were five exhausting years — from the first talks, through statements of principle and interim versions — before its democratic Constitution went into force. The negotiating included 19 parties, factions and tribes, a huge public comment effort and copious study of the experiences of countries around the globe.

“We were shameless,” said Nicholas Haysom, a legal adviser to President Mandela in the ’90s who now works for the United Nations. “We looked at everyone. We took jurisprudence from Canada. We took power-sharing from Germany. We took constitutional principles from Namibia. The true exercise of sovereignty is in how one adapts these institutions to your own country, not in confining one’s imagination to one’s own limited constitutional traditions and experiences.”

Not everyone has that kind of patience. Egypt’s constitution-writing assembly, stampeded by President Morsi’s Islamist majority, has spawned a mess of boycotts, street clashes and confusion where consensus and legitimacy are desperately needed. (Iraq, stampeded by President George W. Bush’s desire to demonstrate the flowering of freedom, had a similar farce when it rushed its version of democracy.)

Peace before justice.

South Africa set out to heal the deep wounds of a ferociously cruel regime by creating a Truth and Reconciliation Commission. Those who tortured and killed for any cause could, by fully disclosing their offenses, win an amnesty. The result was not invariably full truth or full reconciliation, but by and large it worked. Alex Boraine, who ran the commission under the flag of its revered chairman, Archbishop Desmond Tutu, has spent the ensuing years traveling to other countries that want to copy the South African model.

Often, his advice is: not so fast. In some cultures the urge for vengeance is too strong to be curtailed by confession. Efforts to emulate South Africa, he said, have been pretty successful in Peru and Mauritius, but failed in Guatemala and Liberia. He expects that much of the Middle East is too raw for a truth commission. But he advises new democracies that there are other ways to slow the cycle of revenge, build confidence and secure a stable foundation for a new order. For example, should Syria’s opposition succeed, Boraine said, there will be a clamor to take President Bashar al-Assad before an international criminal court. “Another view would be: give him safe passage to Moscow. It’s not fair. it’s not just. But you’ve got to start somewhere, to stop the killing.”

Activist judges are not so bad.

South Africa’s Constitution is in several respects more liberal than South African public opinion. Because the drafters included admirers of Western liberal democracies, and because they emerged from a regime that treated its citizens as essentially chattel, the Constitution is expansive in bestowing rights. It prohibits discrimination based not only on race and gender, but also on “sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” The Constitutional Court has been similarly expansive in its interpretation of this language. The court outlawed capital punishment in 1995 and ruled in 2005 that gays and lesbians are entitled to marry. Neither of those outcomes would likely survive a popular referendum, even today. (South Africa, white and black, is socially conservative.) If proposed laws expanding government secrecy and empowering tribal justice pass the legislature, the high court will be the last line of defense. In America we disparage “activist judges,” but the willingness of South African courts to be assertive on matters of rights seems to have won the judiciary tremendous respect and moved this fledgling society toward greater tolerance. President Morsi, take note.

... Up to a point.

The relatively high esteem accorded the courts and the increasingly widespread disdain for the other branches of government have made South Africa’s courts the destination for disputes that have no business there: should Johannesburg install electronic tollgates on a stretch of highway? How many days should the Parliament be allowed to wait before voting on a no-confidence motion?

“People use these lawsuits as a substitute for political engagement,” said Steven Friedman, director of the Center for the Study of Democracy here. Politicians will never become good at their jobs if courts take their place.

Make citizens.

The curse of many transitional states is that they have no cohesive sense of nationhood, no common sense of purpose or responsibility. Instead of Iraqis or Syrians or Afghans or Egyptians, you have Sunnis and Shiites and Copts, Alawites and Kurds, Pashtuns and Tajiks. A generation past liberation, South Africa has had inspiring moments of unity, but it still has not fully coalesced. A new survey finds that fewer than 1 in 10 adults — and even fewer young people — identify themselves as “South Africans first,” over language, race or ethnic group. The country’s many peoples are equal under the law, but in some ways as “apart” as under apartheid.

Mamphela Ramphele, a wise and nonpartisan anti-apartheid activist and academic, attributes this in part to the sense of impotence that infected South Africans — and not just blacks — under the bleak tyranny of apartheid. And it is partly due, she says, to the cynicism generated by pervasive corruption under the African National Congress government. She has launched a new movement aimed at awakening a sense of citizenship, including through some institutional reforms, such as having most members of Parliament accountable to specific districts rather than answerable only to the ruling party. Freedom, she would advise the founders of new democracies, has to be won over and over.

“South Africans liberated themselves,” she told me, “and now they must do it again.”

Bill Keller, an Op-Ed columnist, was The Times’s Johannesburg bureau chief, 1992-95.

Source: http://www.nytimes.com/2012/12/10/opinion/keller-inventing-democracy.html?hp

Majority Rule / Minority Rights in Eritrea

Majority Rule / Minority Rights

Abraham G. Ghiorgis

Pasted below is an article from the “Democracy Web” that succinctly elucidates the principles of majority rule and the respect of minority rights in a liberal democratic society. Considering what is transpiring at the ENCDC meeting, this article may be relevant to the issues of the freedom of expression and the respect of minority rights.

Some in the opposition understand that burning issues in a democracy are decided only through majority vote. This however disregards among other things the respect of the rights of minorities. If that were to be  the case then we will have all kinds of the “tyranny of the majority.”

For example, it is plausible that a demagogue can easily abolish all religions in Eritrea except the Tewahdo and Islam through the simple exercise of a “democratic majority vote.” And he can defend it easily by raising the banner of a “majority vote.” The demagogue does not understand that the right to freedom of religion is not subject to a majority vote. Majority rule is dangerous and dictatorial if it is not coupled by the respect of minority rights and the respect of the rule of law. Remember Hitler came to power through the mechanism of a “democratic majority vote.”

“Majority rule can not be the only expression of ‘supreme power’ in a democracy... If so, … the majority would too easily tyrannize the minority. Thus, while it is clear that democracy must guarantee the expression of the popular will through majority rule, it is equally clear that it must guarantee that the majority will not abuse its power to violate the basic and inalienable rights of the minority.”

“Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning.”

In real liberal democracies, there are certain rights that are off limits from democratic majority vote. These are generally referred to as negative rights like: the freedom of expression, the freedom of association, the freedom of religion, the respect of property rights, the due process of law and etc.

The majority cannot use its numbers to abolish the right of freedom of expression, that include expressions that may be detestable and abhorrent to the majority. The majority in a society cannot decide whether one is free to express his opinion as he sees fit through a “democratic” majority vote. Otherwise civilization will not advance. The principle of the freedom of expression in its fullest sense does not give a hoot to whether the opinion one holds conforms or not to that hold by the majority in a society. That is the whole essence of the principle of the freedom of expression, and that is also the reason an opinion of a citizen how “foolish” it maybe is not subject to a vote. Rather it becomes a subject to a debate. Only autocrats hate debates. The ENCDC do you hear me.

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Majority Rule / Minority Rights

by Democracy Web

"If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength. For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them."

Alexis de Tocqueville, "Tyranny of the Majority," Chapter XV, Book 1, Democracy in America

Majority Rule

Democracy is defined in Webster's Encyclopedic Dictionary as:

Government by the people; a form of government in which the supreme power is vested in the people and exercised by them either directly or through their elected agents;... a state of society characterized by nominal equality of rights and privileges.

What is left out of the dictionary definition of democracy is what constitutes "the people." In practice, democracy is governed by its most popularly understood principle: majority rule. Namely, the side with the most votes wins, whether it is an election, a legislative bill, a contract proposal to a union, or a shareholder motion in a corporation. The majority (or in some cases plurality) vote decides. Thus, when it is said that "the people have spoken" or the "people's will should be respected," the people are generally expressed through its majority.

Democracy Requires Minority Rights

Yet majority rule can not be the only expression of "supreme power" in a democracy. If so, as Tocqueville notes above, the majority would too easily tyrannize the minority. Thus, while it is clear that democracy must guarantee the expression of the popular will through majority rule, it is equally clear that it must guarantee that the majority will not abuse its power to violate the basic and inalienable rights of the minority. For one, a defining characteristic of democracy must be the people's right to change the majority through elections. This right is the people's "supreme authority." The minority, therefore, must have the right to seek to become the majority and possess all the rights necessary to compete fairly in elections—speech, assembly, association, petition—since otherwise the majority would make itself permanent and become a dictatorship. For the majority, ensuring the minority's rights becomes a matter of self-interest, since it must utilize the same rights when it is in minority to seek to become a majority again. This holds equally true in a multiparty parliamentary democracy, where no party has a majority, since a government must still be formed in coalition by a majority of parliament members.

The Constant Threat

The American founders—Anti-Federalists and Federalists alike—considered rule by majority a troubling conundrum. In theory, majority rule was necessary for expressing the popular will and the basis for establishing the republic. The alternative—consensus or rule by everyone's agreement—cannot be imposed upon a free people. And minority rule is antithetical to democracy. But the founders worried that the majority could abuse its powers to oppress a minority just as easily as a king. Thomas Jefferson and James Madison both warn in their letters about the dangers of the tyranny of the legislature and of the executive. Madison, alluding to slavery, went further, writing, "It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part."

A half century after the United States was established, Alexis de Tocqueville saw the majority's tyranny over political and social minorities as "a constant threat" to American democracy in his pre–Civil War travels. While visiting the state of Pennsylvania, when he asked why no free blacks had come to vote in a local election he was observing, he was told that "while free blacks had the legal right to vote, they feared the consequences of exercising it." Thus, he wrote, "the majority not only makes the laws, but can break them as well."

Minority Rights I: Individual Rights vs. Majority Tyranny

Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy.

The British political philosopher John Stuart Mill took this principle further. In his essay On Liberty he wrote, "The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others." Mill's "no harm principle" aims to prevent government from becoming a vehicle for the "tyranny of the majority," which he viewed as not just a political but also a social tyranny that stifled minority voices and imposed a regimentation of thought and values. Mill's views became the basis for much of liberal political philosophy since, whether it is free market or economic liberalism or social liberalism.

How do majority rule and the protection of minority rights function in practice? Clearly, the two can easily collide when the assertion of Madisonian rights and Millian liberalism confront an unmovable democratic majority. In politics, the regularity of elections and the principles of separation of powers and checks and balances (see "Constitutional Limits") are the means for ensuring debate over the people's interests and views.

Minority Rights II: Protecting Minority Groups in Society

Madisonian and Millian principles safeguard individual and political minorities. But the danger of majority tyranny lies not just in the infringements of individual rights or the marginalization of a political minority, but in the oppression of minority groups in society based simply on criteria such as skin color, ethnicity or nationality, religion, or sexual orientation. Judicial checks on majority tyranny were supposed to expand political and civil rights over time; however, the American courts were themselves often a part of majority tyranny, as numerous Supreme Court cases attest. The 19th-century Dred Scott and Plessy v. Ferguson decisions ruled that African Americans were socially inferior and thus not guaranteed equal protection of the laws (see descriptions of these two cases on the African American History web page).

The African American Experience

In the United States, it is the African American experience that most warns of the danger of such majority tyranny. The Constitution, officially implemented in 1789, flatly contradicted the principles of the Declaration of Independence. Its infamous "three-fifths compromise" (which determined that a slave constituted only three-fifths of a person) sanctioned slavery and the terrible mistreatment of millions of Africans brought to America in chains. Even after the Civil War's end, amendments to the Constitution abolishing slavery and guaranteeing equal rights did not prevent the adoption of Jim Crow laws in the Southern states, which collectively maintained a system of institutionalized segregation, or pervasive discrimination against African Americans in the North. In the South, whites disenfranchised black voters through so-called literacy tests, poll taxes, and property qualifications that were never applied to poor and illiterate whites.

To overcome this form of majority tyranny, maintained for nearly 100 years, the African American minority, just over 12 percent of the population in the late 1800s, had to confront the reality that nearly all political avenues were closed to it. In the South the right to vote had effectively been taken away, and in the North it was ineffectual. In the early 20th century, some African American leaders therefore adopted a strategy of nonviolence and civil disobedience that took the fullest advantage of the freedoms contained in the Bill of Rights and challenged American institutions to live up to America's democratic principles. In their strategy, the rational answer to systematic denial of freedom was the exercise of freedom. The answer to systematic denial of inequality was demanding legal equality and justice in the courts. The ultimate success of this strategy—which began in 1905 with the Niagara Movement of W. E. B. Du Bois and demanded equal rights and eventually led to the development of the National Association for the Advancement of Colored People (NAACP)—fulfilled the stated ideals of American democracy and as a result made the African American civil rights movement an enduring international symbol for world freedom. Its nonviolent method has become a much-used model for how an oppressed minority can seek freedom through the peaceful use of democratic rights.

The Persistence of Discrimination

America's experience is unique in scope, but all democracies have witnessed "the tyranny of the majority" applied against different social groups. Nearly all democracies, for example, restricted voting to specific economic groups, most frequently to male property owners, and only slowly expanded the franchise to men generally. Women were systematically denied equal political and social rights. The first state to grant equal suffrage was Wyoming, then still a territory, in 1869; the first country to do so was New Zealand, but only in 1893. British women over the age of 30 were given the vote in 1918, and in 1928 the age limit was lowered to 21. Women in the United States gained suffrage in 1920, while France did not adopt universal suffrage until after liberation from the Nazi occupation in 1944. Despite having the right to vote in most countries today, women still suffer formal discrimination in many places in the world.

In Europe, minority Muslim communities from former colonies in northern Africa, the Middle East, and Southwest Asia have struggled against pervasive discrimination and the denial of equal opportunities in education, jobs, and housing. In India, the "untouchables," or harijan, have only recently gained rights to enter the mainstream of society. Majority indigenous groups in Bolivia and several other Latin American countries have long been treated as "the minority" for most of their countries' constitutional histories. Indeed, the issues of minorities seeking greater freedom, equality, autonomy, and protection against discrimination and unequal treatment are current throughout the world. Usually they are being addressed through nonviolent protests, legislation, the courts, protection of native lands, education, and other efforts granting regional autonomy or specific rights and privileges.

The Ultimate Denial of Minority Rights

The most extreme treatment of minorities has been carried out by 20th- and 21st-century dictatorships. The worst examples are those of totalitarian regimes that carried out genocide to eradicate unwanted groups in society. The Holocaust perpetrated by Nazi Germany murdered six million Jews, one-third of the total world Jewish population, as well as a significant portion of the Roma ("Gypsy") community. Homosexuals were also a targeted minority for extermination. The Soviet Union, under Stalin, carried out mass executions and deportations of dozens of Caucasian and Central Asian ethnic groups; some now face extinction.

More recently, the Russian Federation has waged a brutal war against its own republic of Chechnya, killing tens of thousands of civilians and displacing more than half the population. Other examples of mass killings of a minority by a dictatorship include the Nigerian campaign against Biafrans (see "Freedom of Religion"), the Hutu genocide of Tutsi in Rwanda, Saddam Hussein's mass killing of Kurds and Shiites in Iraq, and the Sudanese government's sponsorship of mass killing, raping, and deportation in Darfur (see Sudan Country Study. The project for an "ethnically pure" Greater Serbia undertaken by Slobodan Milosevic resulted in the murder of 200,000 Bosnian Muslims and 10,000 Albanian Muslims in Kosovo by a killing machine that was stopped only by military campaigns carried out by NATO.

International Protection of Minority Rights

This history has made the protection of minorities from abuse by majorities one of the highest obligations of international law. The Convention on the Prevention and Punishment of the Crime of Genocide, adopted after World War II in 1948, is the most widely recognized international treaty governing the practice of nation-states. The UN's International Covenant on Civil and Political Rights, adopted in 1966, defines not just individual rights but also minimum protections for minorities. Article 27 asserts:

[P]ersons belonging to [ethnic, religious, or linguistic] minorities shall not be denied the right in community with the other members of their group to enjoy their own culture, to profess and practice their own religion, or to use their own language.

The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, and the Indigenous and Tribal Peoples Convention of 1989 further define protections for ethnic, religious, and cultural minorities to preserve their culture, languages, and beliefs and to protect themselves from discrimination. While these treaties establish clear international moral standards, their actual observance has often been found wanting, as the dramatic recent cases of Iraq, Rwanda, Sudan, former Yugoslavia, and the Russian Federation show. These treaties have no binding legal effect, although the states that ratify them are legally answerable. Occasionally, however, that does not offer enough deterrent.

Nor do these conventions address a difficult political issue posed by democracy: assimilation versus separation. While assimilation of a minority into the broader society offers a minority greater opportunities and political influence, it does so often at the expense of minority cultures, beliefs, and practices. On the other hand, preserving cultures, beliefs, and practices by insulating the minority reduces its influence within the majority political culture. It is not an easy balance.

Conclusion

On a practical level, the application of majority rule and minority rights relies on a set of rules agreed to by everyone in a political community. How are majorities determined? What are the limits of debate and speech? How can members in a community propose a motion or law? Should a minority be allowed to prevent the majority's will by abusing its rights? There is no one answer to these questions, and many democracies have answered them differently. But for those countries that follow an Anglo-Saxon tradition, one of the basic guides for democracy is Robert's Rules of Order. Its beginning offers a concise statement of the democratic ideal:

American Parliamentary Law is built upon the principle that rights must be respected: the rights of the majority, of the minority, of individuals, of absentees, and rights of all of these together.

Source: http://www.democracyweb.org/majority/principles.php

Constitutional Limits on Government

Constitutional Limits on Government

Abraham G. Ghiorgis

Pasted below is an article from Democracy Web that succinctly summarizes the essential points, history and principles of a constitutional government.

“Constitutional limits are based on the idea that the power of the law—the rules laid down by the people's representatives—is superior to the power of any individual or group.... In absolute monarchies, the king is the law, while in free self-governing communities, the law is king. The separation of powers by means of a constitution ensures that no individual is able to dominate the government and create his or her own law. The constitution and the laws that grow out of it are a framework that cannot be broken and applies to all citizens....The rule of law, not men ... is the basis for the preservation of self-governance against the arrogation of power by a dictatorial leader." 

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Constitutional Limits on Government

By Democracy Web

(I) Essential Principles

"In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

Massachusetts Constitution, Part the First, Article XXX, 1780

(I) A. Limiting the Power of the State

The original purpose of constitutional limits on government was to check the arbitrary actions of hereditary monarchs who abused their power, imposed unwanted taxes, or launched unpopular wars. Using agreements like the Magna Carta (see History), nobles with substantial property forced the principle of restraint on European monarchs, although mainly through consultative institutions. Over centuries, through popular revolutions or the evolution of representative institutions like parliaments, there developed greater checks on power and a greater separation of government into independent branches. Under unwritten and written constitutions, rulers could no longer act unilaterally against the will of the people and instead had to gain approval from parliaments and obey established law. This gradual development of constitutional limits on state power sometimes occurred in societies on other continents, but generally the major states of Asia, Africa, and the Americas did not impose such explicit, institutional curbs on their rulers.

(I) B. Self-Governance and Constitutional Limits

The modern experiment of popular self-governance, which began to expand rapidly in the late 18th century, aimed to limit state power through the people's will rather than the interests of the nobility and gentry. The people, formerly subjects of the crown with few rights, became citizens with full and equal rights, regardless of class. And the government became the instrument for carrying out the people's will as expressed through their elected representatives. Mindful of the experience of tyrannical monarchy, newly self-governing societies adopted constitutional limits that defined the specific authority of the state, forbade its agents from violating basic rights, and divided government into distinct branches that would check and balance one another, preventing any single branch from amassing too much power and abusing its authority. Although in the United States this idea of self-government originally applied only to white males with sufficient property, and coexisted with the heinous practice of slavery, over time the concept was expanded to the current universal understanding that government should be of, by, and for all the people.

(I) C. Direct and Representative Democracy

Some political philosophers have argued that direct democracy—in which all citizens vote directly on the laws and policies of a political community—is the ideal form of government. Direct democracy, however, has generally proven impractical, and there are few examples of it in history. Even ancient Athens, ruled by a democratic assembly of all its male citizens, relied on elected officials to some extent, and it ultimately failed to maintain its independence in a hostile region. Town hall meetings, where basic policies of small municipalities are set, also serve as mechanisms for the election of representative officials. Similarly, within local associations and trade unions, members elect officers and committees to carry out their decisions. Indeed, while some decisions may or even should be made by referendum (all citizens voting on a particular issue), few sizable groups of citizens have been able to conduct their affairs solely on the basis of direct democracy.

The American founders were deeply skeptical of direct popular rule. Representative democracy, they argued, was far superior because the buffer it created between the people and state policy allowed for reflection, reasoned debate among differing positions, and compromise between opposing interests. Direct democracy to them meant the potential of tyranny of the majority over the minority, or worse, mob rule, without any restraint on popular impulses or abuses of power. Today, democracy is generally understood as a system of freely elected representative institutions with constitutional limits. (See also "Consent of the Governed," and "Majority Rule, Minority Rights."

(I) D. Parliamentary Democracy

This understanding applies both to the parliamentary system, in which an executive prime minister and cabinet are chosen by the majority party or coalition in the legislature, and to presidential and mixed presidential-parliamentary systems of government, in which the separately elected president holds substantial executive powers. The parliamentary system is the most common form among the world's electoral democracies. While it has fewer constitutional checks and balances among the branches than presidential or mixed systems, the basic principle of limited government is upheld and abuse of power restrained with the help of tradition, evolving law, independent news media and judges, and in some cases a constitutional monarchy. Such monarchs are typically limited to symbolic functions, but they can play a stabilizing or mediating role in times of political crisis and protect against abuse of power.

(I) E. The Rule of Law, Not Men

Constitutional limits are based on the idea that the power of the law—the rules laid down by the people's representatives—is superior to the power of any individual or group. In his influential pamphlet Common Sense, Thomas Paine noted that in absolute monarchies, the king is the law, while in free self-governing communities, the law is king. The separation of powers by means of a constitution ensures that no individual is able to dominate the government and create his or her own law. The constitution and the laws that grow out of it are a framework that cannot be broken and applies to all citizens.

Of course, in a number of instances in U.S. history, the supremacy of law has been invoked for wrongful or immoral purposes that contradict the meaning and intent of the Constitution or of freedom itself. The Dred Scott (1857) and Plessy v. Ferguson (1896) decisions, in which the U.S. Supreme Court upheld slavery and racial segregation, respectively, are notorious examples of the rule of law gone terribly wrong. Ultimately it is the people who must overcome such contradictions through legislative action, electoral changes, public protests, or, as a last resort, revolution. Still, while all democracies have examples of individuals who must challenge existing law to achieve a higher moral purpose, the basic precept that John Adams built into the Massachusetts constitution — "a government of laws and not of men" — holds an important place in the mechanism of democracy. It is the basis for the preservation of self-governance against the arrogation of power by a dictatorial leader.

(I) F. Dictatorship

The modern antithesis of popular self-governance and the rule of law is dictatorship, in which an authoritarian ruler, junta, or oligarchy rules by decree, exercising powers similar to those of the historical monarchs described above. A dictatorship may have a constitution, but in practice it serves to expand rather than limit the powers of the state and grants most if not all authority to the leader or dominant group. Under such regimes, the constitution can often be changed with little or no real input from the people. The result is extensive abuse of power (the terrible consequences of which can be found in the Country Studies in the Not Free category). Occasionally, dictatorships adopt liberal constitutional provisions for appearance's sake or to placate international opinion, offering citizens some possibilities for organizing change (see, for example, the South Africa Country Study, or the Chile Country Study). Some constitutions pledge full adherence to basic principles of human rights or self-governance, but also include language that allows some higher authority—a leader or ruling party—to override those principles in the name of national security or a major ideological priority.

(II) Constitutional Limits on Government: History

Modern constitutional limits on government are commonly traced back to the Magna Carta, signed in England in 1215. It is considered one of the most important foundation stones in the history of democracy. The agreement, which followed King John's failed attempts to take advantage of feudal landowners and to impose his authority by force, established that even monarchs claiming the divine right to rule had to uphold existing laws and customs and respect the privileges and property rights of their subjects. The most important restriction stemming from the Magna Carta was the king's obligation to seek the consent of the nobility, the clergy, the gentry, and townsmen before imposing taxes on the country. An early incarnation of the modern Parliament met for this purpose under Edward I in 1295; it included major noblemen, Church leaders, and representatives of the counties and towns. The assembly was later divided into an upper House of Lords (including high clergy) and a lower House of Commons. Notably, each district could set its own rules for election to the Commons, and some adopted general suffrage for adult males. Eventually, the country settled on freehold ownership of property worth 40 shillings as the basic requirement for the right to vote. This rule remained in place well into the modern era, and even some U.S. states maintained similar property requirements until the mid–19th century.

(II) A. The British Model

No formal constitution was ever adopted in England, and the United Kingdom is still governed according to an accumulation of parliamentary law, tradition, and practice. Over the centuries, the House of Commons came to dominate the "upper" House of Lords due to its more representative nature. Today, the House of Commons is the true focal point of political power, while the monarch remains the ceremonial head of state. The House of Lords now consists largely of members appointed for life by the monarch on the recommendation of the prime minister, although some high-ranking clergy and hereditary peers remain. The House of Lords can no longer block legislation, but it retains oversight and persuasive powers. A select group of members known as the Law Lords serve as the country's court of highest appeal, although efforts are currently under way to create a separate Supreme Court to take on this function.

(II) B. European Models

While many European countries passed through periods of absolute monarchy before building the institutions of democracy, some maintained considerable checks on their rulers. In the case of the Polish-Lithuanian Commonwealth (1569–1795), a quasi-democratic system was instituted through a covenant called the Henrician Articles. These reserved great powers for the nobility, who made up the Sejm, or parliament. The monarchy became a nonhereditary position elected by the Sejm, and the king could not raise taxes or declare war without the nobles' consent. Weakened by internal division, foreign interference, and warfare, the Commonwealth in 1791 adopted a constitution aimed at extending political rights beyond the nobility and forming a stable parliamentary monarchy, but the reformed state was crushed by its autocratic neighbors. Today, most European countries have some type of parliamentary system, though unlike Great Britain they have written constitutions with clear limits on power and definitions of lawful authority. The other major European model is that of France, which since 1958 has been a mixed presidential-parliamentary system. The president acts as head of state and plays a leading role in setting national policies, particularly foreign policy. He appoints a prime minister and cabinet, who are responsible to the bicameral Parliament, to run the daily affairs of government. Parliament is able to bring down the prime minister and cabinet with a vote of no confidence, as well as block government budgets and legislation.

(II) C. The U.S. Model

As noted above, the framers of the U.S. Constitution were concerned with the dangers of arbitrary government and an overbearing executive. Drawing their ideas in part from republican Rome, the writings of John Locke, and the Baron de Montesquieu's The Spirit of Laws, they crafted a model in which government is divided into executive, legislative, and judicial branches, with specific functions defined in such a way that no one branch, and especially not the executive, can dominate the others.

The executive branch is headed by a president who, aside from the vice president, holds the only nationally elected office and is thus the representative of all the people. However, the president's chief responsibility is carrying out the laws passed by the bicameral Congress. While the president has the power to veto legislation, this veto may be overridden by a two-thirds majority of each house of Congress, ensuring that the president's check on legislative power cannot itself be abused. The president is the commander in chief of the armed forces, but only Congress may declare or authorize war. The president appoints executive officers and federal judges, but the Senate must approve them by a majority vote.

The legislature is purposely divided. The House of Representatives is elected by popular vote in districts allotted to the states according to population; the Senate is made up of two members from each state regardless of population. Wyoming, the smallest state by population, is thus equal in the Senate to California, the largest. The House, elected every two years, is the "people's voice," while the Senate—whose members are elected to six-year terms, with a third coming up for election every two years—is designed to temper the vicissitudes of popular will and act as a bulwark against dominance by larger states. All revenue legislation must originate in the House; the Senate holds the principal power of advice and consent with respect to federal appointments and international treaties. The federal judiciary is protected from both of the elected branches of government through lifetime appointment, so that judges can decide cases based on the law and not political considerations. The U.S. Supreme Court is the final court of appeal, and its interpretation of laws and the Constitution must be respected by the other branches.

Limited government has been reinforced over time through amendments to the Constitution, especially the first 10, known as the Bill of Rights, and the post–Civil War 13th, 14th, and 15th Amendments. (The latter three additions abolished slavery, ensured that the states upheld federally protected rights, and conferred citizenship and voting rights on former slaves.) In addition, states are granted all governmental powers not enumerated for the federal government in the Constitution, meaning they have autonomy with respect to education, police, and other community services. States have their own constitutions that are generally organized under the same principles as the federal charter. The country's multilayered system of constitutional government is often blamed for a lack of decisive action on important matters. This was most notably the case on the issue of slavery, as Southern states, despite being a minority in population, long retained the power to block antislavery initiatives. Still, the system is generally considered to be the key reason for America's success as a democracy, and its relative complexity has generally been a source of resilience rather than a cause of paralysis.

(II) D. The Persistence of Dictatorship

The 19th-century historian Lord Acton once wrote, "Power tends to corrupt; absolute power corrupts absolutely." Such was the case for much of the 20th century, when democracy's progress was challenged by the rise of new types of dictatorship. The abuse of power by Fascist and Communist regimes was so complete as to make most historical examples of autocracy appear liberal by comparison. The death toll was without precedent in history. Adolf Hitler's Nazi regime in Germany caused the deaths of tens of millions of people through war, deprivation, and mass execution, including the genocide of six million Jews, some two-thirds of Europe's prewar Jewish population. There is considerable debate about the number of people killed under Communist regimes, but the higher estimates approach 100 million. Most of these deaths occurred in the Soviet Union and the People's Republic of China, and include fatalities from executions, forced labor, and massive famine stemming from state policies.1 In both Fascist and Communist regimes, even the smallest liberties were taken away, and any expression of dissent could result in arrest or worse. Both types of regimes claimed legitimacy in part through constitutions. Communist variants included lengthy assertions of "people's rights," but in practice there were no actual protections against state power. Absolute authority was granted to the ruling party.

The 20th century also saw the rise of other types of authoritarian regimes: apartheid in South Africa, theocracy, military juntas, and nationalist or populist dictatorships. However, by the end of the century, democracy had supplanted many of these governments. Even Germany and Japan, the militaristic instigators of World War II, became thriving democracies under the postwar guidance of the United States and its allies. Other new democracies flourished after the collapse of the Soviet Union in 1991, with notable exceptions like Russia, Belarus, and Uzbekistan. But the enduring examples of such authoritarian systems, and the dictatorships that remain in the 21st century, make it clear that the preservation of human rights and individual liberty requires not just democratic elections but also effective constitutional limits on government authority.

(II) F. Conclusion

Restraints on those exercising power may be elaborated in a written constitution, as in the United States, or operate as an accumulated body of law, as in Great Britain. In either case, the enforcement of such limits depends heavily on the understanding and vigilance of the people themselves (see also "Consent of the Governed"). However, even a perfectly implemented charter will not ensure citizens' rights if its basic structure permits the accumulation of absolute power by any group or individual. A Polish democratic theorist, Jakub Karpinski, described the operating principle of Communist constitutions:

Ornamental institutions functioned as screens for other institutions in which real decisions were made. The parliament and the "collective head of state," under the name of the Council of State, were screens for the Political Bureau and other agencies of the Central Committee of the Communist Party or even other less formal groups of party functionaries who made real decisions. Decisions in the ruling communist parties were usually made without restraint.

Today, the most widely used constitutional models in the world are those of Great Britain and the United States. This is due in part to the legacy of Britain's extensive former empire and its loose association of democratic successor states, the Commonwealth. The United States similarly gained prominence as it took on a larger political and military role in the world, but its constitutional system inspired others much earlier, particularly the Latin American republics that emerged from Spanish rule in the early 19th century. Many countries also follow the example of France or other models.

While the Communist ideal of the "dictatorship of the proletariat" competed internationally with democracy during the 20th century, it remains the governing principle in only a handful of countries today, such as China, Cuba, and North Korea. 

Source: http://www.democracyweb.org/limits/principles.php

Freedom of Expression

Abraham G. Ghiorgis

The following post is taken from Democracy Web. "Freedom of expression is a core freedom, whithout which democracy could not exist. ... Freedom of expression gurantees everyone's right to speak openly without state interference, including the right to criticize injustices, illegal activities, and incompetencies."

Freedom of expression does not mean one has to express only "correct" views. It does not mean one has to express only views that the majority agrees with. And no one has a right to set a red line that the freedom of expression should not cross.

The autocrats want to set a red line and give tickets of traffic violations themselves of what they consider "blasphemy" and supress enquiry and critical thinking. They do not understand that a society cannot agree upon what a red line is supposed to be, unless one takes a dictatorial power. They do not realize that the only recourse is to let ideas compte in the marketplace of visions and thoughts, and that the "bad ideas" eventually fall by the wayside, and that there is no need of meddling into the inner thoughts of inviduals by an arrogant seemingly all knowing indidual since one does not exist unless one is to use brute force and not reasoning and debate.

Freedom of expression is summarized succinctly as follows: "I hate and reject what you say, but I will defend to the death your right to say it."

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(I) Freedom of Expression: Essential Principles

By Democracy Web

"This is true liberty, when free-born men, having to advise the public, may speak free."

Euripides (480–406 BC)

"Give me liberty to know, to utter, and to argue freely according to conscience, above all liberties."

John Milton, Areopagitica, 1644

"The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write and print with freedom..."

French National Assembly, Declaration of the Rights of Man, August 26, 1789

Freedom of expression could be considered one of the most fundamental of all freedoms. While it is of dubious value to rate one freedom over another, freedom of expression is a basic foundation of democracy—it is a core freedom, without which democracy could not exist. The term encompasses not only freedom of speech and media, but also freedom of thought, culture, and intellectual inquiry. Freedom of expression guarantees everyone's right to speak and write openly without state interference, including the right to criticize injustices, illegal activities, and incompetencies. It guarantees the right to inform the public and to offer opinions of any kind, to advocate change, to give the minority the opportunity to be heard and become the majority, and to challenge the rise of state tyranny by force of words.

Until the 20th century, formal censorship— not freedom of expression— was the common practice of most states. Autocrats frequently imprisoned critics, shut down the presses, forced authors into exile, or censored written and artistic works. The struggle against licensing requirements in Great Britain in the 17th century, the American Bill of Rights, and the French Declaration of the Rights of Man expanded standards of freedom in a way that inspired new realms of independent expression and thought, especially in Europe in the 19th and early 20th centuries, but also in other parts of the world.Still, in places lacking independence or self-government, freedom of expression has generally been at risk.

But the full importance of freedom of expression could perhaps be appreciated only with the rise of totalitarian regimes, such as Adolf Hitler's Germany and Joseph Stalin's Soviet Union, among others

In such regimes, the state not only exerted full control over expression, it also used the media to direct citizens' thoughts and opinions through propaganda, indoctrination, denunciation, and social conformity. After the defeat of Nazi Germany, freedom of expression joined the realm of core freedoms that are now protected as universal standards (Article 19 of the Universal Declaration of Human Rights).

Within democracies, freedom of expression remains controversial: Should there be restrictions on hate speech or obscenities, or on publishing sensitive national security information? But, examining freedom of expression in light of the history of authoritarianism and totalitarianism, past and present, helps place many of these debates in greater perspective and provides greater understanding of the struggle for freedom of expression.

(II) Freedom of Expression: History

Over time, opposing forces arose: the need to express ideas and opinions in written form, and the desire by some to control free expression. Thus, the Greek epic poet Homer (ninth or eighth century BC) supported free expression, but Solon (630–560 BC), the first great lawmaker of Athens, banned "speaking evil against the living and the dead." Pericles, the leader of democratic Athens, extolled freedom of speech as the defining distinction between the rival city-states of Athens and Sparta. Nonetheless, after the Peloponnesian Wars, the Athenian Assembly ordered Socrates to drink poison as punishment for lecturing about unrecognized gods and corrupting youth by encouraging them to question authority.

Copernicus and Galileo vs. the Vatican

Until the Enlightenment (17th and 18th centuries in Europe), censorship was the dominant practice of governments. Autocrats generally forbade any questioning of their right to rule, their policies, or their behavior. In mid-15th-century Europe, Johannes Gutenberg's introduction of the printing press with movable type allowed for the mass production of books and thus made greater the need for the imposition of control.

In turn, the Vatican became the main enforcer of censorship. The Catholic Church's 1559 Congregation of the Index was a long list of banned books that hinted of heresy. One of the censored books was Nicolaus Copernicus's De revolutionibis orbium coelestium (1543), which went beyond what was permitted in terms of hypothesizing and directly challenged the Church's belief in a stationary earth. The great scientist Galileo Galilei (1564–1642) was sentenced to life in prison because he confirmed Copernicus's theories of planetary motion around the sun. Galileo's sentence was commuted to house arrest without visitors only when he knelt before the pope to recant his belief in Copernican theory. Galileo's punishment, his forced recantation, and the banning of his books had an even greater impact than the censorship of De revolutionibis in dampening scientific inquiry and discovery for a century.

The Star Chamber

During the Reformation, monarchs who broke from the Vatican's control themselves found a need for censorship. In this regard, the struggles brought about by the Reformation in Great Britain had an enormous influence on the eventual development of freedom of expression. Henry VIII and his daughter Elizabeth I—both of whom were in conflict with the Vatican—banned books that were opposed to the new national Church of England and invoked the Court of Star Chamber (the court that supplemented the regular English Courts) to repress "slander." Elizabeth I also directed the "Master of the Revels," whose primary responsibility was to censor public presentations. Among the most famous acts of censorship under Elizabeth I was her order to eliminate the abdication and assassination scene in William Shakespeare's Richard II because it seemed to invite comparison between her and the weak Richard II (arguably, Elizabeth did not misinterpret—the play was used to try to mobilize support for the Earl of Essex's failed coup attempt). Under the Catholic Stuart dynasty, the Court of the Star Chamber was used to suppress political dissent and to control the licensing of printers. After Charles I raised an army against Parliament, it abolished the Star Chamber in 1637. But Parliament reinstituted press controls through the Licensing Act of 1643, which imposed strict restrictions on the content of published materials.

Milton's Areopagitica: Truth Emerges Through Free Expression

In this context of state intrigue and civil war, John Milton wrote perhaps the most famous defense of free expression ever written: the political essay Areopagitica(1644). His main argument against the adoption of the Licensing Act and for unfettered licensing was a new one at the time but today is basic to our understanding of freedom of expression: that "truth is most likely to emerge in a free and open encounter." The argument was rejected at the time, but the Licensing Act was eventually abolished in the wake of the 1688 Glorious Revolution, which brought Mary II and William III to power with the requirement that they adhere to the Bill of Rights. Censorship by royal fiat continued, but "unfettered licensing" initiated England's tradition of a free and freewheeling media. Milton's Areopagitica, despite its complexity, became the touchstone for a libertarian view on freedom of expression and greatly influenced the liberal tradition in the United Kingdom, the United States, and throughout the British Empire. It remains the core text for free speech advocates.

The Enlightenment: A Primary Objective

Freedom of expression became a primary objective for Enlightenment thinkers as a measure of liberal progress. In Europe, Sweden was the first country to abolish censorship in 1766, followed quickly by Denmark and Norway in 1770. Reflecting the egalitarian spirit of its revolution, the French National Assembly's Declaration of the Rights of Man in 1789 included not only the right to free expression, but also the right to own a printing press. In the American colonies, one of the colonists' main complaints was press censorship by the English king. After the American Revolution, the U.S. Constitution's First Amendment, adopted in 1791, established one of the strongest standards for the guarantee of free speech by any constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The U.S. Supreme Court: Expanding Standards of Free Expression

The evolution of standards for freedom of expression in democracies has tended toward the expansion of freedom and the reduction of restrictions on the media. In the United States, U.S. Supreme Court decisions have reflected this trend. Traditionally, slander and national security laws were common justifications for restricting speech. While each area had legitimate claims for limiting speech, they were also easily abused. In The York Times v. Sullivan (1964), the Supreme Court reversed an earlier ruling in favor of a Montgomery city commissioner who had sued the newspaper over an advertisement made by civil rights leaders that appeared in it. Southern public figures had sued northern newspapers in a generally successful strategy to deter coverage of the civil rights movement. In this case, the Supreme Court majority determined that slander, especially regarding a public figure, required proof of intent of "actual malice," prior knowledge of a claim's falsehood, or "reckless disregard" for the truth.

Until 1969, the U.S. Supreme Court also generally upheld public and national security laws restricting speech. In Schenck v. United States (1919), Oliver Wendell Holmes wrote his famous opinion, which argued, "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." His opinion established an open-ended "clear and present danger" standard for evaluating the legitimacy of national or public security claims. The question, of course, lay in the meaning of clear and present danger. In Schenck, the plaintiff, Charles Schenck, a leader of the U.S. Socialist Party, was convicted for distributing leaflets calling for World War I draftees to oppose the draft.

In Yates v. United States (1957), the Court reversed numerous convictions based on the Smith Act, a law outlawing revolutionary political movements, asserting that there must be a distinction between teaching orexpressing the idea of overthrowing the government and acting on the idea. The Smith Act was more specifically overturned in Brandenberg v. Ohio (1969), in response to a television news broadcast of a Ku Klux Klan rally that included explicit threats of violence against Jews and blacks. The Supreme Court decided that the notion of "clear and present danger" was insufficiently vague as a standard, and that speech could not be "prohibited, punished, or prevented" except where advocacy of specific lawlessness had the likelihood of producing "imminent lawless action."

In the famous Pentagon Papers case, ending in the decisionNew York Times Company v. United States (1971), the Court established an even higher standard—a "heavy burden of proof"—for any government restriction of the First Amendment. All of these rulings greatly expanded protections for the media, reinforced the importance of freedom of speech as an essential element in free societies, and made clear that restraints on freedom threatened the country's democratic foundations.

Totalitarianism: "Truth Is the Mortal Enemy"

The rise of totalitarian regimes in the 20th century had an opposite dynamic: eradicating all freedom. Totalitarian regimes took complete control of the media, making it into an instrument for conveying state ideology, and attempting to control thought and conscience through propaganda and the intimidation of deviant or dissenting views and opinions. Indeed, such regimes moved immediately to control expression upon seizing power.

In the earliest days of the Russian Revolution, for example, the Bolsheviks imposed censorship, using tactics such as destroying the presses of political rivals and destroying private ("bourgeois") libraries. The Bolsheviks' leader, Vladimir Lenin (1870–1924), set the early direction of state propaganda in his famous maxim "A lie told often enough becomes the truth." Stalin further institutionalized censorship by establishing a state body to oversee censorship (called Glavlit in Russian) and the Writers Union (1932), which became the only legal union for writers. These actions by Stalin were instruments for directing every aspect of public expression and for establishing socialism as the only allowable ideology. In the terror under Stalin's rule (the height of repression lasted from the late 1920s to the late 1930s), thousands of writers, journalists, and artists who refused this straitjacket found themselves in prison camps and even graves.

Upon taking power in Germany, Hitler appointed Joseph Goebbels (1897–1945) as director of propaganda. One of Goebbels's first acts was to incite anti-Semitism in the media. He also rallied support for a massive book burning on May 10, 1933, in Berlin to destroy "non-German" books. To note, the German poet Heinrich Heine argued in the 19th century, "Where books are burned, human beings are destined to be burned too." Goebbels's notion of the "big lie" defines the essence of totalitarian propaganda: If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.

Totalitarianism vs. Free Thought

Within totalitarian regimes, one finds not just unimaginable suffering, but also remarkable profiles in courage of individuals who struggled to write freely and reveal the truth for the world and for history. Such courageous individuals include the Cuban author Reinaldo Arenas (1943–90), the Czech dissident Vaclav Havel (1936–), the Russian author of the 1973 The Gulag Archipelago, Alexander Solzhenitsyn (1918–), and many, many others. For these individuals, intellectual freedom could not be compromised because it meant compromising truth itself. Those who were imprisoned found ways both to write and to smuggle their works out of their countries, creating a distinct new form of literature called prison writing. Their pursuit of truth and their efforts to overcome censorship define the meaning of free expression.

Essential Principles II
Freedom of Expression: A Universal Standard

The apocalyptic destruction and murder carried out by Nazi Germany and other Axis powers caused the international community to create new institutions and instruments after the war to protect human rights and prevent a repeat of the war's atrocities. The UN's first act was to create the Human Rights Council, chaired by Eleanor Roosevelt. For democratic countries, free expression was among the primary goals of the new human rights regime. Article 19 of the Universal Declaration of Human Rights (1948) thus declares:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 19 vs. Public Order

Eleanor Roosevelt, one of the original founders of Freedom House, understood that not everyone in the council wanted clear declarations on human rights, most notably the Soviet Union. Its ambassador, Andrei Vyshinsky, had been Stalin's chief prosecutor during the Great Purges, which took place during the 1930s, and engaged in long-winded disputes with the council's chairwoman. While Roosevelt prevailed in establishing clearly defined and unqualified rights, subsequent documents, such as the International Covenants on Civil and Political Rights and on Social, Cultural, and Economic Rights, included qualifications for the temporary restriction of freedoms to preserve public order. While this qualification itself is highly circumscribed (and the council rejected it, for example, to justify the imposition of martial law in Poland), free speech organizations cite the Universal Declaration's Article 19 as the preeminent international claim for freedom of expression.

Freedom's Next Threat: "The New International Information Order"

Later, through the UN General Assembly and UNESCO (the United Nations Educational, Scientific, and Cultural Organization), the Soviet Union and many developing countries sought to establish a "New International Information Order" (NEIO), which would impose restrictions on the media to avoid unfavorable coverage of their countries. This attempt, among others undertaken by developing countries, was weakened when Western countries responded with threats to leave the UN system. Also, by the late 1980s, the main sponsor, the Soviet Union, was near the point of collapse. Still, there remains no clear mechanism within the United Nations human rights system for protecting free expression.


The Negative Balance of Dictatorship

The fights in the UN between developed and developing countries show that the international struggle for free expression is ongoing, and one that generally sets democracies apart from dictatorships. Many countries continue to impose censorship and propaganda regimes, from Burma, to China, to Sudan. A total of 63 countries are categorized as "not free" in Freedom House's Freedom of the Press 2007 survey. Some, like Belarus, Cuba, North Korea, and Turkmenistan, go so far as to propagate "cults of personalities," as occurred in previous totalitarian regimes, where public displays of adoration of the "leader" were a constant practice. In nationalist conflicts that emerged after the collapse of communism, the world witnessed another type of crime against intellectual freedom—the destruction of libraries. Serbian forces destroyed the national library in Bosnia, and the Russian army did the same in Chechnya, each an apparent attempt to wipe out national memories.

In the Middle East, some governments seek to disseminate messages against Israel and Western countries through the state-controlled media, which help to deflect attention from their domestic problems. A culture of intimidation is prevalent. Religious opinions (fatwas) are issued by both state (such as theocratic leaders in Iran) and nonstate religious and political movements (such as al-Qaeda) that sometimes threaten writers or broadcasters with death or violence for materials deemed blasphemous or insulting to Muslims. In a world where terrorism has become widespread, these threats place a chill on all forms of expression, which is, arguably, their aim.

The Positive Increase in Freedom

Freedom House's press survey also shows the converse picture, namely the significant increase in the number of countries that largely respect principles of free expression. Freedom House's Freedom of the Press 2007 survey classified 74 countries (38 percent of the total) as "free," whereas the Freedom of the Press 1997 survey classified only 64 countries as "free." Similarly, the internet has opened up a new means of communication and form of free expression for hundreds of millions of people. At the same time, unfree countries often prohibit access to the internet or censor certain websites.

Freedom vs. Restriction: The Debates Continue

Even in democracies, controversies still remain on the issue of freedom of expression. Not everyone in the United States agrees fully with the blanket libertarian view of the First Amendment or Milton's Areopagitica, especially given the increased threat of terrorism. In the United States, there is, in fact, an ongoing debate between the executive and judicial branches over the balance between national security and free expression. Other important debates continue over issues of obscenity, hate speech, political speech, intellectual property rights, and accountability of the media, among others.

But the main threats to freedom of expression are the restrictions placed on it by repressive governments and the ongoing ideological and physical attacks made on it by extremists. Dozens of reporters are killed each year by repressive governments and extremists. Such attacks were given religious encouragement through a fatwa to kill the novelist Salman Rushdie, issued by the Iranian leader Ayatollah Khomeini in 1989 in response to Rushdie's novel The Satanic Verses, which the clerics found insulting to Islam. The fatwah against Rushdie forced him into hiding abroad, although the Iranian government retracted its fatwah in 1998.
The 2002 assassination of Daniel Pearl, a reporter for the Wall Street Journal, by al-Qaeda operatives was further proof that freedom of expression has little protection in this area of the world. Overall, the climate of religious and political extremism in the Middle East has limited speech and ensured a limited debate about the region's future.

The Meaning of the Cartoon Wars

The most significant recent challenge to freedom of expression was the worldwide reaction to the initial September 2006 publication of a cartoon that mocked the Prophet Muhammad in the Danish newspaper Jyllands-Posten.

Months later, violent demonstrations erupted across the Middle East. Public anger was aimed at Danish embassies, and Muslim leaders demanded that the prime minister of Denmark apologize for the publication of the cartoons and shut down the newspaper. Throughout the world, free speech organizations and some governments defended free expression, although a number of Western leaders criticized the Danish newspaper and called for an apology, believing that freedom of expression is a principle to be defended except when violent demonstrations are organized against it. In the end, the Danish paper issued an apology to defuse the international controversy, after an international boycott by Arab countries cost the Danish economy several billion dollars. The Danish prime minister decided not to take action against the paper, explaining that in free societies, free speech was too important to be interfered with by the state.
The essence of freedom of expression, of course, is not the right to insult the beliefs of others, but rather the freedom to report or convey facts, opinions, philosophies, and worldviews in an effective manner, using both objective and subjective means. Freedom of expression empowers citizens through knowledge, opinion, and the possibility to gain their own voice. Within democracies, free expression allows citizens to challenge political leaders, journalists to uncover information for the public, and the public to ensure the accountability of their government. Without the principles of a free media and free speech, there could be no self-government.


Source: http://www.democracyweb.org/expression/principles.php