Both
media and elections are underpinned by a number of fundamental and
interdependent human rights. These rights are held by: voters, candidates and
media themselves.[i] They
are laid out in key international and regional human rights conventions,
including the United Nations Declaration of Human Rights (1948), Article 19,
which protects freedom of expression at all times, and Article 21, which
protects political participation and voting. These are echoed in the
International Covenant on Civil and Political Rights. Implicit in these rights
are also the prohibitions in human rights law against discrimination against
women, the disabled, and vulnerable groups.
Looking
at relations with the media from the perspective of the electoral management
body, two other important principles come into play: transparency and
confidentiality.
- Transparency means that the
operations of the EMB are open to public scrutiny and hence accountability.
- Confidentiality means that
the security of the EMB’s operations are safeguarded against those who
have no right to unauthorized information and who may undermine the
integrity of the election process.
Clearly
these principles may come into conflict in practice. Complete transparency and
confidentiality are clearly incompatible. However, establishing the precedence
of these principles in any given case may be less difficult than it might at
first appear. It will almost invariably be true that the plans and activities
of the EMB should be open to public scrutiny. It will, without exception, be
true that the vote itself should be secret. The borderline cases that fall in
between are likely to be few.
The
UDHR imposes obligations upon all members of the international community. But,
as a declaration, it is only what is termed customary international law, in
other words, it is not binding in itself, but is ‘general practice accepted as
law,’ as defined by the international court of justice. With the adoption of
the International Covenant on Civil and Political Rights in 1966, these same provisions
were amplified and given the force of binding and enforceable law over all
those states that ratified.[ii]
Article 19 of the ICCPR states in part:
Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information and ideas
of all kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of his choice.[iii]
Article
25 of the ICCPR states in part:
Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in Article 2 [distinctions of any
kind such as race, colour, sex, language, political or other opinion, national
or social origin, property, birth or other status] and without unreasonable
restrictions:
(b) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors.[iv]
Taken
together, these two provisions have been understood to impose an obligation on
governments to ensure the diversity and pluralism of the media during election
periods.
There are also accepted limitations on
freedom of expression, for very particular circumstances:
The great majority of activities
[ie. the exchange of ideas or information as protected by freedom of
expression] are completely harmless but it is clear that the notion of
‘seeking, receiving and imparting information or ideas’ also encompasses
activities which few societies could tolerate, such as incitement to murder,
unauthorised graffiti on public walls or the sale of pornography to children.[v]
There is a ‘three-part test’
that is applied in deciding whether a particular limitation on freedom of
expression is acceptable:
First, the
interference must be in accordance with a law; second, the legally sanctioned
restriction must protect or promote an aim deemed legitimate in international
law; and third, the restriction must be necessary for the protection or
promotion of the legitimate aim.[vi]
The
main regional human rights treaties - the European Convention on Human Rights,
the American Convention on Human Rights, and the African Charter on Human and
Peoples' Rights[vii] -
contain a similar combination of guarantees to the right to freedom of
expression and information and right to political participation without
discrimination.
The
documents adopted by the Conference on Security and Cooperation in Europe go a
step further. In the Copenhagen Document of 1990, the participating states of
the CSCE committed themselves to ensure:
That no legal or administrative obstacle stands in the way of
unimpeded access to the media on a non-discriminatory basis for all political
groupings and individuals wishing to participate in the electoral process.[viii]
The
CSCE documents are not treaties and therefore do not have the same binding
force. They have, however, been accepted as part of customary international law
and therefore impose obligations on participating states.
The
decisions of both international and national tribunals give greater detail and
substance to these broad principles on media and elections. They can be
summarized as follows:
- The media play a vital
watchdog role in holding governments accountable and ensuring the
effective functioning of a democracy.
- Governments are obliged to
ensure the existence of a democracy that ensures media pluralism,
especially in elections.
- Freedom of political debate
is a fundamental right.
- Political parties and
individuals have a right of access to government media during election
campaigns.
- Government media are
obliged to publish opposition views.
- There exists a right of
reply, correction, or retraction in response to wrong statements in the
government media.
- There may be limits on the
legal liability of the media if they reproduce unlawful statements.
- Political expression may be
restricted only for extraordinary reasons.
- There is enhanced
protection for criticism of politicians and government.
- There is enhanced
protection for political opinions.
- There is a right to an
effective remedy for those whose rights have been violated.
Governments are
obliged to protect the safety of media.
[ii] As of 2012,
167 countries had ratified the ICCPR
[vii] At the time of
writing, it is expected that the ASEAN Declaration of Human Rights for
Southeast Asia will be completed in 2012.
It is anticipated that this declaration will provide similar provisions
as those discussed in this section.
[viii] “Document
of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE”
(1990),6, http://www.osce.org/odihr/elections/14304
