What counts as protected speech?
This 'political' broadcast came hot on the heels of a front-page report in The Sun of a plot to kill the country's top leaders. Two resigned from the paper, others suspended. The journalists stood by the story in spite of a printed apology penned by management and lawyers.
The public's right to be informed is a rationale of free speech and a free press. But what counts as free and protected speech is a little more complicated.
Some insist that The Sun's story is protected speech only if it is true. This is, however, not the most urgent reason why a matter is reported. Reporters work on the principle of justified belief based on forms and sources of information. In any case, it is difficult to know in advance whether something is indeed true or not. In other words, truth is not readily recognisable.
In reporting facts that justify a belief, there may be a discovery of the truth or truths through subsequent reports of new information, disagreements, opinions, discussion and evaluation of the information or communication.
The Sun's report may well be about the pursuit of the truth, a value we might insist on protecting. The truth of the matter is now unknown. The killing of the story by management arguably, suppressed information and views of particular information. This seriously affected the legitimacy of the claims of justified belief and the public's right to information.
The argument for truth according to those seriously thinking on speech rationales, is the most dated of the standard rationales. The insistence on truth as a rationale would exclude expressions of opinion which are not capable of truth or falsity anyway.
Speech activists prefer the notion of a 'truth-oriented' speech. Truth-oriented speech conveys information or suggests conclusions which might be drawn from the data conveyed.
Evaluation of competing views
The function of speech is to assist us in discussion with others to make judgments as to what to believe. Freedom of speech and communication should result in new information or new ways of looking at the available information. The argument is the more speech we are exposed to, the less likely we will miss something important for the evaluation of competing views.
The government broadcast of the controversial 90-second 'Taliban' clip over national television as 'general information and a news item' is something free speech advocates must take the government to task.
The clip inspired by the images of the US-led war against Afghanistan included images of the ill-treatment of Muslim women, pictures of PAS leaders and showed alleged supporters of deposed deputy prime minister Anwar Ibrahim in raucous protests.
It doesn't take a one-eyed mullah to discern the intent of the clip. The images and voice-overs easily portray a fundamentalist-obscurantist-anarchical theme linked to the opposition. The near daily broadcasts close to the by-election in Indera Kayangan, lend credence to the opinion that the clip is political propaganda by the government in power.
Free speech in a democracy ideally allows speakers to have equal communicative power. This ideal assumes that all participants in an exchange of views have similar ability to speak and similar ability to understand. The making or the understanding of the communication is not distorted by bias. All deliberations will be evaluated with care and sympathy.
The ideal is not the reality. The assumption of equality is false. Increasingly, resources matter and more resources matter more. In the case of governments, it is a fact that it has a monopoly of resources, unavailable to the largest concentrations of private power.
This fact becomes important when we relate it to the idea of a democratic government. Democracy is a process of discussion aimed at continued consensus on governmental objectives. This consensus requires exchange of information and access to the means of persuading others. Speech or freedom of communication (including access) provides a way for informed choices and informed consent.
Disparage the opposition
When a government uses a public broadcast system to disparage the opposition, without providing the opposition with equal media access and opportunity, the argument could run that there is deliberate distortion to the communicative and deliberative processes needed for informed consent. The government's broadcast is then not speech that deserves protection from challenge. The public's right to information is denied.
Governments in democratic systems must make every effort to avoid providing 'information and news items' with party political bias. There must be autonomy of public broadcast systems and agencies responsible for the administration of national resources allocated for that purpose.
Ministers in charge are required to respect this autonomy and by convention (ministerial responsibility) must be held accountable to the public for breaches thereof. Our parliament has however, neither been enthusiastic in espousing parliamentary democracy nor vigilant in enforcing public accountability of errant ministers.
We do not have a system of parliamentary ombudsmen to oversee abuses of ministerial power. We have a struggling national human rights commission. A complaint to Suhakam has to be crafted in the nature of a human rights infringement under Section 12 of the 1999 Human Rights Commission Act.
It remains to be seen if Suhakam is ready to take up the challenge. Suhakam's rules on locus standi (right to file a complaint or action) is generally more user-friendly than the locus standi principles established by decisions of our courts of law.
This should not prevent lawyers from persisting to pursue new ways to raise challenge on free speech in the courts. The old jurisprudence where the state calls all the shots in a fundamental liberty infringement deserves a judicial overhaul if we want to reclaim, reinforce and entrench democracy in our political system where free speech is an essential feature.
