Fundamental Human Rights - Case Study Example

Swarna1 Word count: 2892 ID # 5448 Order 197460 d 12th December 2007 Freedom of Expression, Religion, Speech Introduction Freedom of expression and freedom of speech are fundamental human rights which serve as instruments for leading a dignified life in the society. The freedom of religion is also considered as most important right to be enjoyed by human beings for leading a meaningful life as the religion is a way of faith and confidence on some philosophical things and it has sentimental feelings of different groups of the people. Freedom of expression mainly emphasizes on social character and it not only simply protect individual liberty from state interference but also protects the individuals freedom to communicate with others. It is well established fact that recognition of the social dynamic of communication is critical for development of society and hence the significance of right to freedom of expression and freedom of speech is very much felt (Richard Moor, 2000). There have been several difference in opinion regarding the practice of religion in different parts of the world (Charles Colson, 2000). However, it is our duty to respect the feelings of each religious group which necessitates the safeguarding of right of freedom of religion and freedom of expression. Unless the freedom of religion is well protected the feelings and sentiments of the people would be adversely affected. Hence the constitution of USA, Canada and European Countries safeguarded the implementation of these human rights by giving necessary powers to the respective courts for judicial interpretation of these rights. The role of European Court of Justice, Supreme Courts of Canada and USA is prominent in this context. Hence, there is a strong need to analyze the functioning style and efficiency of the judiciary in cases involving freedom of right, freedom of speech and freedom of religion. This will give us an idea about the present status and also aid us in deciding the future course of direction for successful implementation of these human rights. Interestingly, the freedom of expression, freedom of speech and freedom of religion are inter related with each other. With out implementing or guaranteeing any one of these laws, the other laws cannot be safeguarded. Hence the judiciary would always consider the integral nature of these laws. However, the implementation of these laws have some exceptions as far as the national interests are concerned. This is quite logical that during war or national emergency, the state should have full control over citizens and can restrict the freedom of expression and speech for safeguarding the national security. Hence the judiciary should be interpreting the nature of cause for restricting these fundamental rights and should decide the relevance so that the genuineness of the restriction of right of freedom would be tested. Keeping these points in view, the present investigation has been carried out with the following thesis objective: Whether the influence of high courts on laws or policies governing the freedom of speech, freedom of expression and freedom of religion is significant or not? The methodology followed for this study includes the study of various sources relating to the response of high courts to cases in which freedom of expression and freedom of religion is affected. Similarly an attempt has been made to analyze the nature of laws or policies governing the freedom of religion and expression critically. Different cases were analyzed from the view point of judicial policy making by the high courts. Based on these theoretical and practical considerations, arguments favoring and opposing thesis statements have been structured leading to a valid conclusion. Critical analysis of the nature of laws or policies governing the freedom of religion and expression The international laws regulating the right to freedom of expression have their foundation in The United Nations Universal Declaration of Human Rights (1948). Its Article 19 clearly sttes the essence of right to freedom of expression in the following manner. It mentions that every citizen has the right to freedom of opinion and expression that includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Similalry, the freedom of speech is very well reflected in the provisions of the international law by the International Covenant on Civil and Political Rights which has wider base through out the globe. However, the legal validity of these international laws has a linkage with the respective national authorities.For ensuring the successful implementation of fundamental rights of the citizens, the courts have been given highest authority in judicial interpretation in Canada. This has been made possible by making them independent of the government. Hence the elected politicians and bureaucrats cannot influence or dictate how the courts administer and enforce the law which is a welcome trend. However, the Canadas Charter of Rights and Freedoms, decides the direction of judicial policy making of courts while interpreting the right to freedom of expression, freedom of speech and freedom of religion (Blakes, 2007). However, the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (Canadian Charter of Rights and freedoms, 1982). It also declares the citizens of Canada enjoy following rights. Freedom of conscience and religion; Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; Freedom of peaceful assembly; and Freedom of association. The Supreme Court of Canada is the apex court of Canada in protecting the right to freedom expression and other fundamental rights in Canada. Similarly, in Europe, the safeguarding of freedom of expression, freedom of speech and freedom of religion are governed mainly by European Court of Justice and Federal courts or national courts in the member nations. However their laws have foundation in the European Convention on Human Rights which was signed on 4th November 1950. It guarantees all citizens of european Nations to freedom of expression. In case of USA, the first amendment made to the USA Constitution aimed at safeguarding the right of freedom of expression for all the American citizens. The freedom of expression and freedom of speech are governed by individual state bodies too leading to variation in terpretation from one state to another. In the state of california, maximum freedom of speech is allowed in USA. Analysis of different laws from the view point of judicial policy making by the high courts In Canada, the right to free expression is well stated in Section 2(b) of the Charter of Rights and Freedoms. According to this, the freedom of expression of any citizen is to be safeguarded by the nation except under some emergency circumstances. However, there is always a threat that some authorities misutilize this exception clause and in that process severely affect the right of freedom of expression. It is also unfortunate that in some judgments, the national courts have ruled against the individuals or agencies by restricting their right of expression. For example, the Supreme Court of Canada effectively put an end to Little Sisters bookstore’s two-decade long fight for its free expression rights in 2007 (Freedom to read, 2007). The book store has been a leading seller of sex magazines and its freedom of expression was blocked due to objection of customs department. The book store agency argued that it has never affected the national security and hence it should be allowed to sell under its freedom of expression. It also argued that the customs department has no technical knowledge on this matter to decide whether the national security interests are negatively affected by selling these magazines. However, the Supreme court of Canada could n’t provide immunity to the book agency which is very unfortunate. This raises the doubts on effective interpretation of courts in judicial policy making in Canada and USA. One should really appreciate some agencies like PEN Canada for fighting for protection of freedom of expression on behalf of writers around the world. Daniel Taylor (1999) reported that the growing intolerance is considered to be the biggest sin in the present day society whether it is Europe or America. The tolerance is the right answer to the peace and the successful implementation of right of religion would provide right atmosphere under this context. Arguments favoring thesis statement / objective There were several occasions where the Supreme Court has helped in protecting the rights of citizens for freedom of expression. For example it struck down a bylaw prohibiting all postering on public property on the grounds that it violated freedom of expression (Ramsden v. Peterborough (City), 1993). Actually, Kenneth Ramsden was found guilty for placing posters on hydro poles advertising his band. Though he claimed that the bylaw was unconstititutional, A justice of the peace found that the bylaw was constitutional and he was fined accordingly. However, the supreme court has supported his action and held that the protection of right to freedo of expression is very essential according to section 2 (b) of the Canadian Charter of Rights and freedoms. Similarly, in cases involving judicial activism, it tried to maintain a balance between right of freedom of expression and interpretation authority of judges. For example, in cae of Dagenais v. Canadian Broadcasting Corporation (1994) it supported the decision on publication ban even though it has relation to the right to freedom of expression under section 2 (b) of the Canadian Charter of Rights and freedoms. It is because of the fact that the judges are given some exclusive rights in interpretation of criminal trials. However it held that the judge should balance the freedom of expression and right to a fair trial. However it also provided scope for the media or any other agency involved in this context to appeal on decision of a publication ban. In some cases where the uniformity of the implementation of justice relating to right of freedom of expression is violated by the government, the supreme court of Canada took active role in judicial policy making. For example, in case of Native Womens Association of Canada v. Canada (1994) the Supreme court didn’t support the claim that the government of Canada had an obligation to financially support an interest group in constitutional negotiations, to allow the group to speak for its people. It held that the women should also be given equal opportunity as far as the representation of Aboriginal groups in Canada are concerned. Hence the Native Women’s Association Of Canada was supported in this case. The court also interpreted that section 28 (sexual equality under the Charter) and section 2 (freedom of expression) are inter related with other and both the sections should be well protected as far as the freedom of expression is concerned. It may so happen that the right to freedom of expression may be interrupted in the name of prevention of publishing false information. Hence the role of Supreme court in judging the actual ground ishighly crucial. Fortunately, the supreme court of Canada served as genuine legal authority in interpretation of such caese and thus helped in safeguarding the right to feedom of sppech and freedom of expression of citizens. In cae of R. v. Zundel (1992) Supreme Court of Canada has given a landmarking judgment for protection of right to freedom of expression. It struck down the provision in the criminal code that prohibited publication of false information according to section 181 of criminal code. Section 181 declares that any person who wilfully publishes a statement, tale or news that he knows is false and in that process results in causing injury to a public interest is considered to be guilty of an indictable offence and he is liable to imprisonment. However, the Supreme court of Canada opposed the view that the publication of news has violated the freedom of expression. In genuine cases, it accepted the fact that the right to freedom of expression is obstructed by criminal code rules, but opined that the change of regulations is not required for public safety. If one analyzes the ruling given by the Supreme Court in R. v. Sharpe, (2001), the court accepted that the child pornography provisions of the criminal code put limitation of the right to freedom of expression under section 2 (b) of the Canadian Charter of Rights and Freedoms, but at the same time they can’t be supported as they damage the dignified norms of the society. Interestingly the Supreme Court of Canada interpreted even in case of Quebecs referendum law dealing with the regulation of expenses by third parties during a referendum campaign which involve the right of freedom of expression (Libman v. Quebec (Attorney General), (1997). It clearly reflects the efficiency of Supreme Court of canada in judicial decision making process in diversified areas where ever the right to freedom of speech and freedom of expression are involved directly or indirectly. The role of Supreme Court of canada may also be appreciated in its judgment which upheld the law that prevented the publicizing of election results from some ridings before the polls closed in others (R. v. Bryan, 2007). In case of freedom of religion also the supreme court of USA and Supreme Court of Canada and European court of Justice provided valuable judicial decision making which allowed the diversified ections of people to practice their own religions of choice. It was howver observed that the religious freedom jurisprudence of the USA and Canada have tremendous convergence except that the idea of a "strict separation of church and state" pursuant to which any state support for religion or any state entanglement with religion is unconstitutional, has great power in the United States but not so in Canada (Christopher Eisgruber and and Mariah Zeisberg, 2006). Overall, the judicial interpretation in these above mentioned cases suggest that the influence of high courts on laws or policies governing the freedom of speech, freedom of expression and freedom of religion is significant. Arguments opposing thesis statement / objective It is also illogical to expect total protection of right to freedom of expression, freedom of speech and freedom of religion would be possible only with the judicial decision making process of Supreme Court of Canada or USA or European Court of Justice. The legislation making body i.e. Parliament should cooperate fully with the judicial body. Then only complete success in protection of fundamental rights would be possible. Even the exceptions provided in Canadian Charter of Rights and Freedoms pose severe threat for protection of freedom of expression, freedom of speech and freedom of religion. Several people or agencies and governemnts took the benefit of these exceptions in some specific cases and restricted the implementation of fundamental rights. For example, in case of Dagenais v. Canadian Broadcasting Corporation (1994), Supreme Court of Canada had to support the publication ban in the name of avoiding publication of false information. Even though it held that the publication ban can be questioned or appealed in court of law, the weakness of judiciary in safeguarding the fundamental rights is exposed due to the restrictions kept in Canadian Charter of Rights and Freedoms. Conclusion. Freedom of expression, freedom of speech and freedom of religion are inter related with each other and all of them have to be safeguarded in total for effective implementation in society. Though several international and national laws govern the safeguarding of these fundamental rights, their direction got changed with the repeated and meaningful interpretation of judiciary from time to time in the form of judicial policy making process. The role of Supreme Court of Canada, Supreme Court of USA and European Court of Justice is praiseworthy in safeguarding these rights of freedom of expression, freedom of speech and freedom of religion as reflected in their earlier verdicts. Hence influence of high courts on laws or policies governing the freedom of speech, freedom of expression and freedom of religion is highly significant. However, the amendments are needed to the Canadian Charter of rights and freedoms so that the restrictions for effective implementation of fundamental rights would be minimized in future. References Blakes. (2007). Canada’s legal system. Doing business in Canada. http://www.blakes.com/DBIC/guide/html/legal_system.html. Canadian Charter of Rights and Freedoms. 1982. Schedule B. Constitution Act (1982). Part 1. http://laws.justice.gc.ca/en/charter/. Charles Colson. (2000). The Ugly side of tolerance. How to be offensive with out really trying. Christianity Today dated 6th March, 2000. Christopher Eisgruber and and Mariah Zeisberg. (2006). Religious freedom in Canada and the United States. International Journal of Constitutional Law. 4(2):244-268. Dagenais v. Canadian Broadcasting Corporation, (1994) 3 S.C.R. 835. Daniel Taylor. (1999). Are you tolerant? (should you be). Deconstructing the gospel of tolerance. Christianity Today Dated 11th January, 1999. Freedom to read. 2007. Supreme Court of Canada’s ruling against Little Sisters bookstore a blow to free expression, PEN Canada says. Dated 25th January, 2007.  http://www.freedomtoread.ca/news_and_opinions/2007/01/supreme-court-of-canadas-ruling-against.asp. Libman v. Quebec (Attorney General), (1997) 3 S.C.R. 569. Native Womens Association of Canada v. Canada, [1994] 3 S.C.R. 627 R. v. Zundel (1992) 2 S.C.R. 731. R. v. Sharpe. (2001). 1 S.C.R. 45 R. v. Bryan. (2007). SCC 12. Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084. Richard Moor. 2000. The Constitutional Protection of Freedom of Expression. University of Toronto Press publication. P: 320. ISBN-10: 0802078362. Sandra Bernstein. 1997. A Chronicle of Freedom of Expression in Canada. (Part 2, 1995-present). Periodical Writers Association of Canada. Read More