Freedom of Expression: The Controversy of Politics and Law

Dr. Yasser Youssef Ibrahim

From time to time, the issue of freedom of expression and the limits of the right of intervention granted to government administrative authorities to regulate press freedoms are raised in the media and legal landscape in Sudan. The mere act of dialogue on these topics is undoubtedly evidence of national well-being.

It is also a necessary and obligatory duty among the various state institutions, as it establishes the principle of peaceful dialogue between them. This will lead to consensus on key issues, including national security, which has remained a subject of contention and disagreement.

This has had extremely dangerous consequences for the country’s unity and sovereignty and has caused its vital forces to clash over everything and disagree on everything that requires agreement. Given the centrality of the national security issue, it directly relates to the public debate about how to exercise public freedoms and the methods of regulating them between the various parties, including government authorities and citizens.

It must be said from the outset that regulating freedom of expression in the modern state is not new, and people are rushing to seek rules for it currently. Fortunately, international legislation has addressed and devoted texts to this issue.

This is evident when we talk about international legislation regulating freedom of expression, we mean international and regional conventions, including the United Nations Charter, the International Covenants on Civil and Political Rights, Economic and Social Rights, the Universal Declaration of Human Rights, and continental human rights conventions. These conventions have given great attention to freedom of expression, as it is considered a fundamental human right that cannot be compromised.

The Right to Restrict Freedom of Expression:

The fundamental question that arises among those interested in rights is: Is this right called for by international and regional conventions an absolute right, or are there specific restrictions on it?

Questions always come from two categories: one group based on an idealistic vision that deviates from existing reality or ignores established facts on the ground and attempts to judge government authorities according to imaginary standards of what the exercise of public freedoms should be like, and the other group based on political backgrounds dominated by the literature of “political activism,” characterized by a loud voice and the ability to mobilize politically without knowledge of the legal rules governing the disputed issues.

However, under the pretext of political support or professional fanaticism, they bypass objective requirements and exploit issues by transferring them outside their regulatory and legal context to the arenas of “alleged struggle.”

Rights in international conventions are divided into absolute rights that cannot be restricted, such as the right to freedom from forced labour or torture, for example, and rights that can be restricted to achieve a higher goal than the right subject to restriction. The most prominent example of this is the right of expression, in which international conventions have focused on achieving a balance between freedom and responsibility. While they have focused on affirming freedom of expression and considering it a fundamental right, they have called for not exploiting this freedom to harm others.

Article (19) of the International Covenant on Civil and Political Rights states, “The exercise of rights carries with it special duties and responsibilities. Accordingly, it may be subject to certain restrictions, provided that they are specified by law and are necessary for respect of the rights and reputations of others.” Paragraph (b) of the article states: “For the protection of national security, public order, public health, or public morals.”

The concept of restricting freedom of expression was clearly stated in the European Convention for the Protection of Human Rights, where Article 10 of it states the following: “The exercise of these freedoms may be subject to certain treatments, conditions, or penalties provided for by law and which are necessary in a democratic society for national security, territorial integrity, public safety, the protection of public order, the prevention of crime, the protection of health or morals, the protection of the reputation or rights of others, the prevention of the disclosure of confidential information, or the maintenance of the authority and impartiality of the judiciary.”

Were it not for the nature of this article, which is limited to a certain number of words, we would have expanded on citing the restrictions placed by international and regional conventions on freedom of expression. Still, we conclude this paragraph with what was stated in The constitutional document also adopted the principle of restriction, as stated in Article (57), which states the following: “Every citizen has an unrestricted right to freedom of expression, to receive and disseminate information and publications, and to access the press, without prejudice to public order, safety, and morals, in accordance with what is determined by law.”

Who Has the Power to Exercise the Restriction Authority?

International conventions require that any intervention to restrict freedom of expression be based on applicable law (i.e., that it aims to protect a legitimate interest recognized under international law and that such restrictions be necessary to protect that interest). Some argue that this right to restrict should not be enforced by government authorities but rather reviewed by the courts.

This confusion reflects a lack of full understanding of the nature of the work of modern state authorities. The executive authority is responsible for implementing the rules approved by parliament to ensure the proper state administration.

To this end, the state relies on implementing certain laws approved by parliament. The government is also fully responsible for implementing the provisions of administrative law, which resolves administrative disputes between the state and individuals and institutions. An important aspect that must be noted is that the President of the Republic, in a presidential system, possesses legislative powers according to specific rules.

This is known in Sudan as “constitutional decrees.” We saw this when former US President Joe Biden signed a law banning TikTok in the United States based on security reports (viewed with suspicion). (The relationship between the Chinese government and the Communist Party and the company).

Last year, the British Home Office issued a warning to National Iranian TV demanding that it shut down the channel, citing concerns about Iranian threats to bomb the channel’s headquarters. The channel’s director protested, asking, “Is it the duty of the British police to deport journalists or to provide protection for them?” In 2015, the French Ministry of the Interior did not hesitate to shut down five websites based on anti-terrorism laws.

In 2020, the Broadcasting Regulatory Authority revoked the BBC’s broadcast license in China, banning it from broadcasting within the country because it published material that violated Chinese law.

Several countries have banned TikTok by administrative decision, most notably France, the UK, the Netherlands, and European Union institutions. India preceded them in doing so. All of these entities justified their decisions by citing security concerns regarding the app’s operation or the social aspects of what it broadcasts.

We have provided these examples to emphasize that the power to restrict is an administrative authority exercised by governments through the Ministries of Interior, Information, security agencies, or broadcasting license regulating bodies. In Sudan, we have a case in point: the ban on BBC Radio broadcasting by the decision of the Minister of Information in 2010, as a result of the BBC violating licensing requirements by opening an office in Juba without consulting the Ministry of Information. The ban was not lifted until 2019. From this, we conclude that the entity holding the license has the right to withdraw it.

However, for governments to prevent abuse of the right to restriction, their work must be based on law, and affected parties must have access to the courts, either to have the decision permanently revoked or to be suspended pending a final decision from a competent court.

In conclusion, I say that we need a constructive dialogue between the government and the media to reach a specific formula that preserves the country’s national security, respects its sovereignty, and provides the media with the appropriate environment to fulfil its role while taking into account the current circumstances our country is experiencing.

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