FREEDOM OF EXPRESSION IN MAURITIUS

1.1Freedom of expression meaning and importance

Freedom of expression is guaranteed by section 19 of the Universal Declaration of Human Rights as follows:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

1.2Section12 of the constitution of Mauritius

In the Constitution of Mauritius it is provided under section 12 where it states that:

“(1) Except with his own consent, no person shall be hindered in the enjoyment of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(a) in the interest of defense, public safety, public order, public morality or public health;

(b) for the purpose of protecting the reputations, rights or freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainment; or

(c) for the imposition of restriction upon public officers, except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society. [1] 

Broadly it is noted that section 12 provides on one hand for the basic right and enjoyment of freedom of expression while on the other hand setting limitations in a way to it with regards to which limits expression cannot cross.

Euripides (480–406 BC) noted that “This is true liberty, when free-born men, having to advise the public, may speak free." While French National Assembly, in the Declaration of the Rights of Man, August 26, 1789 stated that “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write and print with freedom..." [2] 

Freedom of expression is considered to be one of the most important and essential freedom. While we can’t rate one freedom with another, it is a fact that freedom of expression is an essential underpinning of democracy. Without its existence democracy would not be able to exist and survive. Freedom of expression secures everyone's right to speak and write openly without state interference, as well as the right to criticize injustices, illicit activities, and ineffectiveness. It guarantees the right to enlighten the public and to suggest opinions of any kind, to advocate change, to provide the minority with the prospect to be heard and eventually become the majority, and to face the rise of state totalitarianism by force of words.

Until the 20th century, it was common among nations to practice formal censorship and not freedom of expression. Critics were incarcerated, presses were shut down while authors were forced into exile and the written or artistic works of artists were censored.

Freedom of expression was given its due importance with the appearance of authoritarian regimes, as for instance Adolf Hitler's Germany and Joseph Stalin's Soviet Union, among others. In these countries freedom of expression was reduced to its simple meaning and was completely banned and repressed.

In such regimes, the reigning party not only exerted total control over expression but it also make use of the media to manipulate and direct citizens’ thoughts and opinions through the use of misinformation, indoctrination, condemnation and social compliance.

It was under such regimes that the concept of freedom of expression was duly recognized as being an essential right of humans as they were deprived of it and saw its consequences. It was after the defeat of Nazi Germany that freedom of expression joined the realm of core freedoms that are now protected as universal standards (Article 19 of the Universal Declaration of Human Rights).

EUROPEAN COURT OF HUMAN RIGHTS VIEWS ON FREEDOM OF INFORMATION [3] 

Article 10 of the European Convention for the protection of Human Rights and fundamental freedoms protects freedom of expression. This article was used by the European Courts of Human Rights to explain that this article forbid any government from preventing an individual from gaining access to information that others have the desire and willingness to share with him. It is noted that though article 10 do not make it a must for any government to share information to an individual, in these three cases it has been held that any failure to satisfy the want of information was deemed to have been an obstruction to the private life of the individual if these countries are under a positive obligation to ensure respect for these rights.

. In the Gaskin case, where the applicant claimed that the refusal to access to his personal and confidential information from the Council violated article 8 (right to a private life) by failing to meet its positive obligation to give him access to the requested information, the Court held that an individual had a right to access records held by a local authority relating to the period while he was in foster care. The court had held that the refusal of the local authority to grant the applicant access, without any kind of independent scrutiny to determine the genuineness of the confidentiality claim amounted to an infringement of the right to a private life in Article 8. [4] In the most recent case, Guerra, the Court went even further, holding that the government was under an obligation to provide certain environmental information to residents in an ‘at-risk’ area, even though it had not yet collected that information. [5] 

1.3Stuart Mill view on freedom of expression

British philosopher Stuart Mill stated in his book, On Liberty [6] , that there are three main reasons as to why the hindrance and repression of ideas and opinions which are against majority thinking is wholly and totally unjustified and wrong. He founds three points;

If an opinion is barred ,then mankind lose this opinion

An opinion may as it contains bad elements also contain some genuine and true elements

The majority opinion will only be justified and reaffirmed by examining the other opinion. and will come out more strengthen

1.4Freedoms protected in Mauritius

The Constitution of Mauritius and pieces of Legislation protects all the main freedoms. It covers;

Freedom of Press:

“A free press can of course be good or bad, but, most certainly, without freedom it will never be anything but bad. . . . Freedom is nothing else but a chance to be better, whereas enslavement is a certainty of the worse." [7] 

Freedom of the press is the freedom of communication and expression through vehicles including various electronic media and published materials. While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other legal protections.

Freedom of Religion

"Every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshiping the Deity according to the dictates of his own conscience." [8] Freedom of religion is a right and as such has been embodied in human rights.

Freedom to hold opinion

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. [9] 

Right of access to information

Information should not be hidden and kept from public knowledge. Information should be gained and shared for the common knowledge of everyone.

Freedom of discussion

“Freedom of inquiry, freedom of discussion, and freedom of teaching - without these a university cannot exist" [10] .Freedom of discussion is necessary for mankind to gain from it and improve.

Political freedom

Anyone has the right to enter in politics and create a political party with his own ideologies and beliefs.

Expression by Artists

Artists are able to express their ideas and opinions through the various means available to them. They should have freedom to express themselves as they can touch people by their art where talks cannot.

So, while freedom of expression is generally guaranteed under the Constitution of Mauritius, there are some worrying potential restrictions on the use of this right. Restrictions have been made possible in the best interest of public morality - a very hazy notion, which give rise to different interpretations.. Limitations have also been placed to prevent civil servants from divulgating information –The official secrets act of 1972 which Mauritius took after Britain prohibits civil servants from doing so. The Authority which is responsible for the appointments, The Public Service Commission, also states that unless having obtained the prior authorization by a supervisory officer, no information would be allowed to get public.

There are also other provisions made by law that that bound freedom of expression such as those which criminalize defamation: Any person found guilty of defamations is liable to a period of imprisonment not exceeding one year and a fine not exceeding Rupees 5000 (about 165 US dollars). In addition, such person may be sued for damages. Some laws restricting freedom of expression have been challenged in the courts. Up until the early 1990s private satellite dishes to receive television could not be imported into Mauritius without a license. This clause in the Customs Regulations was dismissed by a court which argued that it contravened section 12 of the constitution and that everybody was free to receive information. The judgment marked the beginning of a revolution in the country. In 2002 legislation was passed which established an Independent Broadcasting Authority. For the first time since independence in 1968 this body began to issue licenses to private radio stations. Private television, however, is still not allowed.

In Mauritius there is enjoyment of freedom of expression but no society is perfect. And countries need to strive to attain that perfection .But it is a fact that Mauritius is regressing year after year. Mauritius, once amongst the first in the prestigious Reporters Without Borders rankings, has lost ground since 2007. The media in Mauritius reflect the democratic and pluralistic tradition of the Mauritian society. However, in 2008 a number of incidents (arrest of journalists, storming of the police into the premises of a local private radio station) caused the country to drop 21 places on the Global Media Freedom Index (Reporters without Borders Reports, 2007 and 2008).

Freedom of expression is the foundation stone of democratic rights and freedoms. This is verified by the fact that during its very first session which took place in 1946, the United Nations General Assembly had adopted the resolution 59(1),way before any other human rights declaration or treaties had been adopted. The resolution 59(1) states that In its very “Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated." These quotations underline the high magnitude of freedom of information on different bases: in itself different levels: in itself, for the realization of all other rights and as a keystone of democracy. Freedom of information is most probably more important by acting as the foundation of democracy. Generally information acquired by public authorities is not divulgated but this information is not meant for the benefit of officials or government only but for the whole. And except if there are genuine reasons for the preservation of such information, it should be made accessible to everyone. Because the free access to information leads to transparency. It enables citizens to know what is going on within a government, and in revealing any forms of fraud and negligence.