Violence Against Speakers / Impunity, National Security, Political Expression
Vietnam v. Ta Phong Tan (The Case of Blogger Ta Phong Tan)
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or the “Commission”) held Eritrea responsible for the violation of Articles 1, 5, 6, 7, 9, and 18 of the African Charter on Human and Peoples’ Rights (“The Charter”). The present case relates to the incommunicado detention and ill-treatment of 18 journalists since September 2001, following a public letter published by a dozen senior officials and other members of the ruling elite criticizing the government. The publication of the letter triggered public outrage against the government which lead to the retaliatory dismissal of public officials, the arrest of journalists, and a temporary ban of all private newspapers. The victims in the present case were never brought before a judge, allowed communication with their respective families, or provided with legal counsel. The Respondent State argued that the apprehension of journalists and the restrictions imposed over private newspapers intended to protect and preserve national security and public order. In this respect, the Commission observed that “no political situation justifies the wholesale violation of human rights” and the imposition of such restrictions often inflames tensions. Hence, according to the Commission, international standards and maxims of law must be accorded hierarchy over domestic legal frameworks. In conclusion, the Commission found that Eritrea’s domestic laws on the right to freedom of expression did not conform to the Charter, resulting in a violation of Article 9 of The Charter.
The instant case concerned the incommunicado detention and ill-treatment of 18 journalists beginning in September 2001 without prior exhaustion of judiciary proceedings or ever being brought before a judge due to the scale of the judiciary backlog in Eritrea. During the detention, the victims were denied legal counsel and communication with their respective families.
The victims’ detention followed the publication of a letter by an organization known as the “G15” criticizing the mandate of Eritrea’s President. The letter mentioned above triggered internal outrage against the government and a political crisis, which resulted, inter alia, in the resignation and dismissal of government officials, illegal detentions of journalists, and the cancellation of the elections scheduled for December 2001.
On 18 September 2001, the government imposed a temporary ban on the private press and ordered the arrest of many journalists, including the victims of the present case. However, the public press was allowed to operate in Eritrea, particularly the “Hadas Eritrea”, a daily newspaper owned by the government. According to the government, the journalists’ arrests and the restrictions imposed over private newspapers intended to protect and preserve national security and public order in a time “…when the very existence of the nation was threatened” and the government was “duty bound to take necessary precautionary measures” [para.87].
On 4 October 2002, the Applicant complained to Eritrea’s President and the Chairman of the African Commission that the detention of the 18 journalists was illegal. Therefore their immediate release or trial before a competent court was mandatory pursuant to the rules of law. Subsequently, on 12 November 2002, the Applicant submitted a communication before Eritrea’s government demanding authorization to visit the victims and requesting information on their status. However, no further answer was ever provided in respect of those proceedings.
Hence, in light of the absence of effective domestic remedies, on 14 April 2003, the Applicant lodged a complaint to the Commission arguing, inter alia, that the Respondent State had violated Articles 1 (Human and Peoples’ Rights), 3 (Right to Equality before the Law and Equal Protection of the Law), 5 (Prohibition of Torture and Cruel, Inhuman and Degrading Treatment), 6 (Right to Personal Liberty and Protection from Arbitrary Arrest), 7 (Right to Fair Trial), 9 (Right to Receive Information and Free Expression), 13 (Right to Participate in Government), 18 (Protection of the Family and Vulnerable Groups) and 26 (Duty to Guarantee Independence of Courts) of The Charter. In 2004, the Commission declared the complaint admissible during its 36th Ordinary Session held in Dakar, Senegal.
Before embarking on an analysis of the merits, the Commission pointed out that one of the 18 journalists had already submitted his arguments in another case that was decided upon by the Commission according to communication 250/2002; therefore, these arguments were not reexamined in the present case.
With reference to the right to freedom of expression, the Applicants complained that the Respondent State held the victims incommunicado since September 2001, without access to legal counsel or being brought before a judge. Furthermore, the Applicant claimed that the State showed no effort to remedy the victims’ situation and that the authorities overlooked all legal complaints raised by the Applicant. The Applicant also added that the victims were arrested and held incommunicado as punishment for publicly criticizing the government and its mandate.
On the other hand, the Respondent State endorsed the Applicant’s factual arguments that the national press was temporarily banned and that 18 journalists were apprehended and never brought to justice due to the scale of the judiciary backlog in Eritrea. Nevertheless, the Respondent State maintained that the detention of journalists and the restrictions imposed over private newspapers were intended to protect and preserve national security and public order. According to the Respondent State, most of the detainees were arrested on the grounds of treason, undermining the State’s independence, and hindering the national defense, all punishable acts pursuant to the Transitional Penal Code of Eritrea. The Respondent State added that the temporary ban on private newspapers was a result of the apprehension of their prominent editors on the grounds of planning to overthrow the government using illegal means.
After considering the application in the light of the information made available by the parties, the Commission ruled that the right to freedom of expression could not be restricted because it allegedly threatened the incumbent government’s mandate. Moreover, the Commission held that Article 9 of The Charter punishes any effort to undermine the right to freedom of expression through national laws when such restriction does not conform to the spirit of The Charter. Article 9 of the Charter states, “Every individual shall have the right to express and disseminate his opinions within the law.” [emphasis added] According to the Commission, interpreting so-called claw back clause of “within the law” to allow national laws to restrict the right to freedom of expression without setting boundaries would render the right an illusion. Hence, according to the Commission, international standards and maxims of law must be accorded hierarchy over domestic legal frameworks. In this regard, the Commission held that “permitting State Parties to construe Charter provisions so that they could be limited or even negated by domestic laws would render the Charter meaningless. Any law enacted by the Eritrean Government which permits a wholesale ban on the press and the imprisonment of those whose views contradict those of the Government’s is contrary to both the spirit and the purpose of Article 9” [para. 105].
To support its line of reasoning, the Commission recalled its judgment on the case of Dawda K. Jawara v Gambia in which the right of the public to access information was said to have been violated as a result of restricting the media. Furthermore, the Commission noted the importance of the right to freedom of expression in legitimizing the government’s mandate and preserving the democratic fabric. In this regard, the Commission considered that “No political situation justifies the wholesale violation of human rights; indeed, general restrictions on rights such as the right to free expression and to freedom from arbitrary arrest and detention serve only to undermine public confidence in the rule of law and will often increase, rather than prevent, agitation within a State” [para. 108]. Thus, even if Eritrea’s domestic laws allowed the restriction of the ratified rights, the Commission found that such regulations did not conform to The Charter.
The Commission also noted that “…banning the entire private press on the grounds that it constitutes a threat to the incumbent government is a violation of the right to freedom of expression, and is the type of action that Article 9 is intended to proscribe. A free press is one of the tenets of a democratic society, and a valuable check on potential excesses by government” [para. 107]. Consequently, the Commission held that the facts before it disclosed a violation of Article 9 of The Charter. Likewise, the Commission held Eritrea responsible for violating Articles 6 and 7 of The Charter since the victims were never brought before a judge or provided with legal counsel. Finally, the Commission also found a violation of Articles 5 and 18 of The Charter in view of the detention of the victims with no communication with their families and no access to legal aid.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming that international standards and principles prevail over domestic legal frameworks. In this sense, the Commission referenced the so-called “claw-back clause” and ruled that national laws cannot restrict the right to freedom of expression on the basis of protecting a government’s mandate, even if national criminal laws contemplate such restrictions. According to the Commission, “permitting State Parties to construe Charter provisions so that they could be limited or even negated by domestic laws would render the Charter meaningless. Any law enacted by the Eritrean Government which permits a wholesale ban on the press and the imprisonment of those whose views contradict those of the Government’s is contrary to both the spirit and the purpose of Article 9” [para. 105].
Furthermore, the Commission held that the enjoyment and fulfillment of the right to freedom of expression constitute one of the cornerstones of the democratic fabric. Therefore, restricting freedom of expression, mainly the private press, will provoke public outrage against the government and deteriorate public confidence in authorities. Lastly, the Commission considered that imposing a temporary ban on private newspapers infringed the journalists’ right to disseminate their opinions and the public’s right to access such information.
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