During this global pandemic situation when the global community is concerned about public health and the economy, a republic South Asian nation with a population exceeding approximately 161 million people was engaged in shaping one of the constitutional rights of its people.
Its republic is a democracy according to its constitution and guarantees fundamental human rights and freedom to its people. It means I’m discussing a nation which is “republic-democratic.”
You might have heard the term “democratic republic” which is mostly used to describe the United States.
However, the republic South Asian nation I’m discussing has chosen to announce itself to be called a republic first and then announced that the “republic shall be a democracy.”
Abraham Lincoln defined democracy as the government “of the people, by the people, and for the people.”
And republic is defined as “a political order in which the supreme power lies in a body of citizens who are entitled to vote for officers and representatives responsible to them.”
So, the supreme power of the republic in question lies within its citizens. However, the republic in question has chosen to walk in a different direction by redefining the meaning and norms of “republic-democratic.”
One of the key elements of a republic-democratic is freedom of thought, speech, and expression.
The republic in question has guaranteed the freedom of thought but has set boundaries in expressing thoughts by imposing restrictions.
It means if you are a citizen of the republic, holding the supreme power, you can have the right to think anything you want but before expressing it you need to think again and again.
First, make sure that you are not making any comment on the republic’s important personalities; who might not seem important to you. Here, by using the phrase “important personalities for the nation” the republic has, first, gone against the norms of democracy, ie under democracy all citizens have an equal say and so are treated equally by the government.
Second, by using an undefined vague term like “important personalities,” the republic has gone against its constitution which guarantees non-discrimination and equality before the law.
This vague term “important personalities” used by the republic to shape the norms of freedom of expression is contradictory with the principle of non-discrimination and equality before the law and at the same time, it is violating the principle of rule of law that everyone should be treated equally under the law.
However, under this particular restriction, the law is not treating everybody equally.
Here, the question that arises is on the ground of constitutionality of this restriction rule because the republic in its constitution guarantees the rule of law.
Moving on, the second restriction that you must remember before using your right to freedom of expression is to make sure you are not expressing any thought which can damage the reputation of the republic in question.
By imposing this restriction, the republic has given importance to the platform where you express your thought.
For instance, if you are a journalist and found that the head of the republic or an executive or an organization of the republic is involved in corruption or adding fuel to the corruption, before making a news report think again because there is a high probability of a defamation case filed against you and the newspaper even before verifying the veracity of the news report.
Similarly, if you an academician and giving an interview about the practice of freedom of expression or rule of law in the republic in question, all you say should be and must be in favour of the republic in question.
This means people’s right to get the true information is essentially violated by this particular restriction rule. Because it coercively induces people to hide and not do any healthy criticism.
There are many other restrictions; however, I want to emphasize these two restrictions because it has a strong nexus with the norms of “republics-democratic.”
Here, a question arises regarding whether the citizen, holding the supreme power, has the authority and right to criticize the actions of their representatives and the government. Can the citizen criticize the actions of their voted representatives?
If yes, then why, despite noticing the silence and no adequate immediate action from the republic’s side on corruption and poor condition of the republic’s national health service, the citizens are not questioning and criticizing the republic’s silence?
And if the citizen cannot question, then it raises questions on the norms of “republic-democratic” because republic-democratic gives supreme power to the citizen and the right to hold the government/representatives accountable.
Citizens communicate with their representatives and prevent them from performing any illegal, unlawful, and unfair actions by invoking their right to freedom of expression and speech.
However, this republic in question has attempted to shape the norms of republic-democracy by first setting boundaries to freedom of expression. The republic has closed all its doors for criticism and has withheld its citizens’ political entity.
During the global pandemic with the increasing intensity of the situation in the republic, evidence of corruption, syndicates, and very poor health service began to emerge which induced political criticisms, raising serious questions on the republic’s national health service and the government’s silence in this regard.
When a wave of criticism emerged on social media, invoking the right to restrict people’s freedom of expression under the constitution, the republic attempted to shape freedom of expression.
Here the question arises on the necessity of setting boundaries on freedom of expression in a democracy, the necessity of withholding its citizens’ political entity.
In Grinberg v Russia (Eur Ct HR 2005) the ECHR suggested a “three-prong test” when deciding the necessity of limitations on freedom of expression in cases involving criticism of the government.
According to the three-prong test, “the courts shall take into account the following elements: The position of the person criticizing the government, the position of the person against whom the criticism was directed, the subject matter of the publication, the characterization of the contested statement by the domestic court of the contracting state, the wording used by the person criticizing, and the harshness of the penalty imposed by the domestic court.”
Further, the court concluded that “interference by authorities was not necessary for a democratic society.”
However, in the republic, a different phenomenon is witnessed. Arrests of some journalists, photographers, local citizens, and so on are being witnessed, where no sign of judicial activism was visible from the republic’s judiciary to protect people’s right to freedom of expression which is one of the key elements of republic-democratic.
Moreover, democracy is one of the fundamental principles of the republic which forms the basic structure of its constitution. However, this republic has forgotten to be a republic-democratic the very institution that ought to be governed by republic-democratic norms and rule of law.
And by curbing its citizens’ right to freedom of expression and closing the doors for healthy criticism, the republic is walking towards autocracy and has planted the seeds for its destruction.
Sadiya S. Silvee is a Doctoral Candidate, School of Law, Zhengzhou University (ZZU), China. She can be reached at: [email protected].
