Human rights are among the rights that everyone has in terms of being human. Thomas Paine first used the term human rights in translating the Declaration of the Rights of Man and the Citizen.[1] Article 11 of this declaration states: “The free communication of thoughts and opinions is one of the most valuable human rights. Therefore, every citizen can freely speak, write, or publish materials, of course, if he (or she) accepts his responsibility for any abuse of this freedom as defined in the law”.
By studying the records of human rights issues in the global arena, it can be said that one of the most fundamental sub-branches of human rights, which is also emphasized in the international system, is the right to freedom of expression (or speech).
Freedom of expression has been one of the ideals of mankind throughout history, and humanity has incurred a lot of costs to achieve this right. Freedom of expression is one of the most important rights with fundamental dimensions and a concept mixed with democracy. This right is the key to protecting all human rights and protecting human dignity and is a fundamental concept for protecting individual rights (Mendel, Toby, (2008), Restricting Freedom, 1).
Before addressing the subject of the right to freedom of expression, it is appropriate to briefly explain the two words “right” and “Freedom”:
According to Thomas Hobbes, the “right” is the freedom to do or not to do an act (Thomas Hobbes, Leviathan, Chapter 14, 218-219).
In his book Law of War and Peace, Hugo Grotius defines the “right” as follows: “Right is the moral quality of a person who has the authority to have or do something” (Hugo Grotius, Laws of War and Peace, 183).
Freedom means liberty, free will, the opposite of servitude, the opposite of slavery, the opposite of thralldom, and the power to act and refrain from action. The ancient Germans used freedom as “vri.” This word meant life in the city-state with the Greeks because if the city falls, the people will be enslaved and deprived of their freedom.
In the famous essay of Professor Isaiah Berlin entitled “Four Essays on Liberty,” freedom (Liberty) is divided into two types: positive freedom and negative freedom. Negative freedom means being free from a series of prohibitions, chains, and forces. In other words, negative freedom means not being an obstacle to realizing human rights. A proper interpretation of negative freedom in the field of the right to freedom of expression is the non-interference of the government in such a way that the government and all government agencies do not prevent the exercise of the right to freedom of expression by imposing restrictive laws or in any way (Isaiah Berlin, Four Essays on Liberty, 248-249).
Pragmatist philosopher John Dewey distinguishes positive freedom from negative freedom and considers positive freedom superior. Negative freedom means that a person can do what he wants, but positive freedom is realized when he can develop and perfect his potential abilities. Freedom of expression should be considered a positive freedom because, without it, a person cannot develop his mind (Hossein Bashiriyeh, Democracy for Everyone, 38)
The philosophy of the emergence of the right to freedom of expression and its essential importance
One of the most comprehensive theories about the philosophy of the emergence of the right to freedom of expression is John Stuart Mill’s statement. He cited four reasons for the need to enjoy the right to freedom of expression:
1- If we prevent the expression of a theory, we will never know its validity, while that opinion may be correct. Not accepting the possibility of the truth of other people’s opinions means that we consider ourselves infallible.
2- Even if the opinion we have prevented from expressing is wrong, it is possible – and often it is – that part of it is true. In fact, because the common and majority opinions rarely contain the whole truth, only the interaction of different opinions gives the opportunity for the rest of the truth to emerge.
3- Even if the popular opinion is not only correct but contains the whole truth, it is theoretically prejudiced by those who accept it so that they will have little understanding and feeling towards its logical reasons unless this opinion is seriously contested.
4- The lack of confrontation of opinions also causes the theory itself to be exposed to destruction or weakening, and its influence on people’s traits and actions is reduced (John Stuart Mill, Treatise on Freedom, 43-44)
Components of the right to freedom of expression
Relying on international documents that include the right to freedom of expression, including Article 19 of the Covenant of Civil and Political Rights[2], it can be said that the components of the right to freedom of expression are: 1- Everyone shall have the right to freedom of expression. 2- The right to freedom of expression includes the right to search, receive, and disseminate information and opinions. 3- The right to freedom of expression includes information and opinion. 4- The right to freedom of expression is not limited to national borders. 5- The tool of freedom of expression includes any means of communication. 6- Governments are obliged to respect the right to freedom of expression and guarantee it.
After presenting some points about the right to freedom of expression from an international perspective, we will examine the freedom of expression in Iran.
1- Freedom and freedom of expression in the words of the supreme leader of the revolution
Supreme Leader of the Revolution as a religious and political leader, while following the concept of freedom in Islam, says: “Islam, which is a supporter of human rights, is also a supporter of this freedom. Practically, even at the beginning of Islam, during the time of the Prophet and the first caliphs, we do not come across a case where the expression of opinion was prevented.”[3].
Regarding the relationship between culture and freedom of expression with social progress, the Supreme Leader of the Revolution said: “What the government is responsible for in the category of culture is intelligent, thoughtful, conscious supervision, taking care of all the forces, guiding the society in the right direction, helping the cultural growth and development of the people of the society.”[4]. Therefore, it is the duty of the government and the political system to take care of the forces developed in the Islamic system, and by using this discourse, individuals and especially the elites should have a suitable space to express their opinions and freedom of expression, of course, away from any deconstruction and undermining of certain values and principles of Islamic system.
Undoubtedly, creating space for the expression of opposing political opinions and the expression of opposing opinions to the government can become the basis for the maximum participation of people in any election, which can be manifested by granting freedom of expression to parties, groups, and even opponents of the system. Ayatollah Khamenei said about the maximum participation of members of the society and freedom of expression: “As in the past, we insist that everyone, even those who do not accept the system and the leadership, come to the polls because the elections belong to the people of Iran and Islamic Republic System.”[5].
2- Freedom of expression in Iranian laws
The existence of any right in society requires a mechanism to support it because in society, the government, as the author of laws that create rights, is responsible for creating such rights; on the other hand, the next role of the government is to implement these laws, and finally, its second role is to monitor how to implement right. Guaranteeing the implementation of rights in society and the first way of citizenship rights always requires a guarantee of implementation because having a performance guarantee is one of the prominent features of the rules of law. The performance guarantee is a means of preventing the violation of the right and forcing it to comply with it, which shows itself either in the form of prevention of violation of the right or in the form of forcing the debtor to implement the right and compensate the owner of the right (Nasser Katouzian, Introduction to the science of law and study in Iran’s legal system, 97).
According to the principles of the constitution, the judiciary is not only obliged to observe and not violate the legitimate freedoms of all people but also must expand them at the level of society and ensure their non-violation and deal with violators. On the other hand, this authority must also prevent the jeopardy of citizens’ rights. Also, according to Article 156 of the Constitution, the judiciary is not only responsible for monitoring the good implementation of laws but is also obliged to take appropriate measures to prevent the occurrence of crimes (Ali Yar Arshadi, Constitutional Rights and Explanation and Criticism of the Constitution of Iran, 34).
Freedom of expression is recognized in Iran’s legal system. Constitution of Islamic Republic of Iran, inspired by the Holy Qur’an, in terms of its value and importance, has approved the principle of freedom of expression and opinion as described in Article 23 of the constitution, which states: “the inquisition of opinions is prohibited and no one can be assaulted and impeached simply for having an opposing opinion,” and also Article 24 of the Constitution of the Islamic Republic of Iran, which states: “Publications and the press are free to express their content, unless they are harmful to the principles of Islam or public rights, the details of which are determined by the law.” Naturally, when the press, whose level of influence is far more than expressing the opinions of individuals, is free to express their content and criticism, other ordinary people will also be free in the first way.
After years of efforts, the government of the Islamic Republic of Iran approved and promulgated a charter entitled the Charter of Citizen Rights in 2016. Articles 25 to 29 of this charter are often devoted to the right to freedom of expression, which we mention below:
Article 25- Citizens have the right to freedom of thought. Inquisition of opinions is prohibited, and no one can be assaulted or impeached simply for opposing opinions.
Article 26- Every citizen has the right to freedom of expression. This right must be exercised within the limits set by the law. Using communication tools, citizens can freely seek and publish opinions and information on various topics. According to the laws, the government must guarantee freedom of expression, specifically in the fields of group and social communication and virtual space, including newspapers, magazines, books, cinema, radio, television, social networks, and the like.
Article 27- Citizens have the right to express their creative thoughts and feelings through various ways of creation, literary and artistic thinking, respecting the laws and rights of others.
Article 28 – Citizens have the right to criticize, express their displeasure, and call for good advice about the performance of the government and public institutions. The government is obliged to promote and expand the culture of criticism, tolerance, and discipline.
Article 29- The government supports the freedom, independence, pluralism, and diversity of the media within the framework of the law. No official has the right to pressurize the press and other media, contrary to the legal standards for the publishing or non-publishing of information or content, or engage in censorship or control of publications and other media.
One of the most important solutions that can help strengthen and protect the right to freedom of opinion and expression and work very effectively is the formation and organization of a special court called the Constitutional Court. A court with general competence, the presence of a jury, with high and independent powers consisting of competent, generalist, and free-thinking experienced judges who can investigate the issues and aspects related to the said right about the institutions or real people of the society under comprehensive investigation based on the principles related to the exercise of the right to freedom of opinion and expression and prohibition of any inspection of opinion and its unprincipled restrictions, and by knowingly and scientifically announcing the violation of the said right, or non-violation, while effectively punishing the violators, is the protector and guardian of all freedoms related to thought and expression, from the freedom of expressing opinions to the freedom of parties and the formation of gatherings and marches.
It is worth mentioning that after feeling the necessity in this regard, the bill to establish this court was raised by the representatives in the fourth period of the Islamic Consultative Assembly; after the commission’s review and report, the bill was not voted on in the first session of this bill in the Islamic Consultative Assembly. The mentioned bill was presented again in 1997 and in the fifth period of the Islamic Consultative Assembly, but again, due to disagreements and objections, it was not put to a vote. In any case, as mentioned, it seems necessary to establish such a court to eliminate its disadvantages.
References[6]
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- Ishaq, H., (2009). Freedom of Expression in Islam, Rowaq Andisheh Quarterly, pp. 32-50. (In Persian)
- Plato, (1075). Laws, translated by Mohammad Hasan Lotfi, Tehran, first edition, Safi Alisha Press. (In Persian)
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- Berlin, I., (1989). Four Essays on Liberty, translated by Mohammad Ali Movahed, Tehran, first edition, Khwarizmi Publications. (In Persian)
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Mohammad Amin Amin Roaya, Master of Jurisprudence and Law
[1] Declaration of August 26, 1789, The Great French Revolution
[2] Clause 2, Article 19 of the Covenant states: Everyone has the right to freedom of expression. This right includes the freedom to research, seek, and disseminate information and ideas of any kind regardless of borders, whether orally, in writing, in print, in art, or by any other means by self-choice. Exercising the rights mentioned in clause 2 of this article requires certain rights and responsibilities; therefore, it may be subject to certain restrictions specified in the law and necessary for the following matters: a- respecting the rights or dignity of others, b- maintaining national security or public order or health or public morals. Article 23 of the Declaration of Islamic Human Rights states that every human being has the right to freely express his opinion in any way that does not contradict the Sharia principles. Every human being has the right to call for good and forbid wrong according to the rules of Islamic Sharia. Advertising is a vital necessity for society, and its misuse and abuse, attacking the sanctity and dignity of the prophets, or using anything that leads to disruption of values or dispersion of society or loss or disintegration of belief, is prohibited. Inciting ethnic or religious feelings or anything that leads to any kind of racial discrimination is not allowed. Therefore, since the country of Iran is a member of the United Nations, the government of Iran was among the positive voters in 1948 during the approval of this declaration. In 1968, it signed the International Covenant on Civil and Political Rights without any preconditions, and in 1975, the Islamic Council approved it. In addition to the above documents at the regional level of human rights, there are also important documents such as Article 4 of the American Declaration of Human Rights and Duties (1948), Article 13 of the American Convention on Human Rights (1969), Article 10 of the European Convention on Human Rights (1950), and Article 9 of the African Charter on Human Rights, and Nations (1981) while recognizing the right to freedom of expression, have formulated regulations about this right.
[3] 1987-4-24
[4] 2004-1-13
[5] 2016-1-9
[6] It should be noted that the author has used some sources directly in the article and has simply taken inspiration from some sources and used the foundation of the content in the text.