Freedom of Speech violations under Jordanian Penal Code
Author: Raid Almflh
University of East London
Freedom of expression is widely acknowledged as a fundamental right in a liberal and democratic society. Therefore, this right has been enshrined in articles (19 of Universal Declaration of Human Rights), article (19 of International Covenant on Civil and Political Rights), article (10 of the European Convention on Human Rights), article (13 of the American Convention on Human Rights), article 9 of the African Charter on Human and People Rights), and article (10 of Human Rights Act 1998).
There are, however, important and legitimate reasons why freedom of expression may need to be restricted in order to protect other important rights, freedoms and interests. The protection of national security and right of an individual to have a fair trial are both areas in which freedom of expression might legitimately be restricted. Protection the rights of others can also involve restricting, for example, advertisements with controversial views.
In this essay, I would like to examine the scope and nature of this right in view of article 10 of Human Rights Acts 1998 and article 19 of International Covenant of Civil and Political Rights. In addition to throwing some light on the restrictions on this right according to the articles above.
In the second part of the essay, I would like to compare between some articles in Jordanian Penal Code and article 10 (HRA) and 19 (ICCPR) to clarify which articles contradict and violate the freedom of expression and overstep the scope of it.
Freedom of expression:
Most of the conventions mentioned above enshrine this right using quite the same words (everyone has the right to freedom of expression … including holding opinions and receiving and impart information and ideas without interference). The term of Interference includes executive orders which prevent publications or the confiscation of published material.
However, Human rights Act 1998 (article 10) and International Covenant on Civil and Political Rights (article 19 and 20) have given more details about practicing this right, these details are related to duties and responsibilities when practicing this right. Thus, we should through some light on the nature and the scope of this right in view of the two conventions above.
The nature and scope of freedom of expression:
First of all, expression is a wide term. It is potentially wider than speech, covering a range of non-verbal forms of expression . This can be seen clearly in articles 19(2) which show expression term can be orally, in writing, in the form of art, or may use any other mediums (such as press, broadcasting and electronic media). Free expression is a term which is intrinsically sufficiently expansive to encompass an infinite range of arts and media, and has been interpreted by the HRC as extending to commercial advertising in a language of one choice.
The text of article 10 (HRA) and 19/20 (ICCPR) make it clear that there is no absolute right to freedom of expression , this right like other rights can be restricted if certain conditions are present. The nature and scope of this right is established in the first paragraph (article 10/1 -HRA) and the exclusive conditions are identified in the second paragraph .
According to article 10/1 HRA everyone has this right and to hold opinion, receive, impart information and ideas without interference, in return states can require some licenses of some activities. Therefore, article 10 protects freedom of expression, not just freedom of speech. It can, for example, extend to expressive acts that do not involve words at all, such as the playing of music, dancing, the wearing of particular clothes, despite of the fact that an expressive act can give rise to issues under article 8 (the right to private life) and article 9 (the right to freedom of thought, conscience and religion). In general, all types of speech (political, artistic and commercial) can be protected under the terms of this article considering paragraph 2. However, political speech is given a wider protection here which includes, for instance, participating in political demonstrations.
Furthermore, this article includes freedom to receive information, access to information held by government and other bodies which is essential for an effective political democracy. Receiving information is the most important aspect to freedom of expression since the overwhelming majority of people have no realistic access to the media in order to express their views and opinions. Freedom of media was embodied in the United Nations Conference on Freedom of Information held in Geneva in 1948 which ,also, freedom of media is essential for democracy, and democracy is the system which best upholds human rights. The press and audio-visual media are the main mechanisms for imparting ideas on public matters which public have a right to receive. Similarly, thought states are allowed to regulate the media, they must also ensure that there is a pluralism, a reasonably wide range of knowledge and ideas available to public, and so it must protect against too much concentration of media power in too few hands. However, the freedom to receive and impart information does not confer a right to access to information which considers confidential.
Restrictions under article 10/2:
As we have mentioned earlier, this right is not absolute which means many duties and responsibilities set out in article (10/2 HRA) when practicing this right on hand, on the other hand, any restrictions on this right should be deemed as violations unless states can prove that the restriction is justified on terms of paragraph (2). Some philosophers express this restrictions by (Harm Principle) or (Offense Principle), such as John Stuart Mill, Joel Feinberg and Bernard Harcourt who wrote (The Collapse of The Harm Principle). Indeed, It is a philosophical issue, but it is worthy to be mentioned in this context in quick. For example, John Mill assured this principle as he supported not to harm others while practicing your freedom of expression. While Feinberg criticized this view saying that this does not provide enough protection against the wrongful acts of others. Harcourt does not believe in this principle and this right should be given a wide protection.
There are principles governing the proper judicial scrutiny of the justification for any interference with this right in paragraph (1), which have been laid down by the (ECtHR) in many cases and adopted into UK law under the HRA in some cases . These are as follows:
– There must be an interference.
– The interference is prescribed by law meaning that there must be a basis in law for the restriction, the law must be accessible to the individual to be affected by it, the terms of the law must be precise for the individual to be able to regulate the conduct without breaking it and the law must not be arbitrary and incompatible with the rule of law. 367
According to Article 10/2 restrictions can be legitimate if for one of the purposes listed in it, restrictions for other reasons are not permissible, such as national security, territorial integrity or public safety, prevention of disorder or crime, protection of health or morals, protection of the reputation or rights of others, prevention the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. These restrictions should be legal not judicial or political restrictions, and this restriction is necessary in a democratic society.
Moreover, the Johannesburg Principles on National Security, Freedom of Expression and Access to Information came to make a balance between right of states when imposing these restrictions on hand, and the right of expression on the other hand, this can be clearly seen in principle (1/b) which imposes a responsibility of governments to demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government, also, the authority’s reasons must be subject to scrutiny by a court.
By the same token, this right has been enshrined in articles 19 and 20 of the international Covenant on Civil and Political Rights using quite the same words used in article 10 HRA. Also, it mentioned that practicing this right carries duties and responsibilities. It may therefore be subject to certain restrictions, and these are provided by law and are necessary to protect the rights of others and their reputation and to protect national security or public order or public health or morals.
Defamation is an important restriction on this right, many countries rely on this restriction to bring journalists and activists to courts under this charge, the tort or delict of defamation allowing people to recover damages when reputations are lowered, it is a justifiable restriction of this freedom. However, in some occasions courts can be in favour of some politicians or in their grip, thus, this weapon can be used from those people to pretend their reputations were hurt. Courts have no mechanism to decide if this defamation or no, only to follow the claimant’s claim. On the other words, courts decide defamation exist or no, and courts in some repressive regimes act in favour of these regimes.
Freedom of expression includes freedom of speech including commercial, artistic and political speech, however, political speech has been given more protection as a democratic necessity, thus the ECtHR has emphasised the importance of protection political speech , restrictions on speech which, for instance, involve criticism of government policy will be hard to justify. The political or public dimension to speech can trigger article 10 HRA/19 ICCPR protection even if there may be other aspects to it (such as commercial self-interest) which, without the political aspect, might make restriction easier to justify. However, political speech is given a broad protection under human right law, article 10 HRA/19 ICCPR permit states to adopt appropriate measures to guarantee public order and in particular, to use criminal laws to suppress incitement to violence, which means that restrictions on political speech in some cases do not violate these articles. The ECtHR does recognise the right of states to suppress such speech in certain circumstances to protect national security.
Article 20 of ICCPR headed (Prohibition of Propaganda for War and Advocacy of Hatred), this article imposes a duty on the state to take legal measures to ensure that the kind of propaganda which inflamed prejudices and released racist and belligerent feelings.
Moreover, article 10/1,2 of the European Convention on Human Rights has used the same formulation mentioning the same duties and responsibilities and restrictions and this right subject to some conditions and formalities and penalties.
Freedom of Expression in Jordanian Penal Code:
Having been discussed the scope and nature of freedom of expression and its aspects including the political speech, we should examine the articles in Jordanian Penal Code which overstep this ambit and constitute violations to this right to expose unreasonable restrictions.
Jordan has legislations that threaten freedom of expression and extend executive control over online media outlets. Freedom of expression and association are circumscribed in the laws and practice, and security services enjoy a large degree of impunity for arbitrary arrests, torture and ill-treatment which include some acts contravening the humanitarian standers and international law.
Jordan criminalizes speech that is critical of the King, government, officials and institutions, as well as speech deemed defamatory to other persons. Penal code increases penalties for some speech offenses by criminalizing defamation, against entities (not individuals) such as government institutions, symbols and makes any violation a criminal offence, punishable by imprisonment.
The 2010 Law on Information System Crimes extends these provisions to online expression by prescribing fines of US $140-$2,800 for sending or publishing anything defamatory of another person through information systems, including email, text messages, or the internet.
Here some articles in penal code which Jordanian authorities rely on to limit freedom of expression:
To begin with, article 149 /1 Panel Code which states:
“Any person who has done anything that undermines the system of political governance in the Kingdom or incites to oppose it, also, any person who has done any individual or collective action with a view to changing the state’s economic or social system or the basic conditions of society shall be punished by hard labour”.
149/5: “Crimes that undermine national unity or disturb the purity of the nation”.
This article considers an overt contradiction to article 10 HRA as the courts rely on this article to bring the people asking for changing the constitution by democratic methods under this charge (Inciting to change the political system), also, this charge falls into The State Security Court’s jurisdiction . Therefore, many activities have been prisoned under this article . According to Human right law the protection offered by article 10 HRA extends to groups or individuals who are seeking constitutional change, such as the abolition of the monarchy or even the possible breakup of the state or at least considerable autonomy for certain regions, such this expression should be protected even when it takes place against a background of violent disorder .
In fact, many articles in Jordanian penal code violate human rights standards. However, we should mention the most notorious article, one of then article (118) which the authorities rely on it to silence the opposition. This article is connected to the charge ((disturbing relations with a foreign state)), and the punishment is five years in prison if you write anything or say words against any country, regardless of being correct or incorrect. Therefore, many activists have been jailed under this article. On the other words, if you oppose the political regime, they will create a charge to halt you.
Also, article 122 is connected to the previous article, the punishment is five years if someone insult any foreign country, its army, its national flag or emblem publicly. defamation that is publicly committed against the head of a foreign state or its ministers or political representatives in the Kingdom .
Moreover, lengthening the tongue is a charge under article 132 which states: ((Any Jordanian who broadcasts abroad and is aware of false or exaggerated reports that would impair the prestige or status of the State shall be punished by imprisonment for a term not less than six months and a fine not exceeding fifty dinars)).
A term of not less than one year shall be imposed if the aforesaid is directed against the King, the Crown Prince or one of the guardians of the Throne). Indeed, the same charge will be given to any person writing or speaking against the kind or the crown prince, even if what written or said is correct. Many cases in the court against journalists published correct reports against the king and his privileges. This act is still in the scope of freedom of expression and it does not fall into the limitations set out in articles 10/HRA and 19,20/ICCPR .
Furthermore, according to this article 161, anyone who encourages others by speaking or writing or by any other means to carry out any of the acts considered illegal under Article 159 of this Law shall be liable to imprisonment for a term not exceeding two years. The acts mentioned in article 159 are: The overthrow of the Constitution of the Kingdom revolution or sabotage and the overthrow of the government based in the Kingdom under the Constitution using force and violence. We have mentioned earlier that by article 10 HRA extends to groups or individuals who are seeking constitutional change, such as the abolition of the monarchy or even the possible breakup of the state or at least considerable autonomy for certain regions, such this expression should be protected even when it takes place against a background of violent disorder. Which means this article of Jordanian Penal Code contradicts human rights standards.
Article 195 constitutes a violation to this right, it is connected to the charge of lengthening the tongue, which means that sending a written, oral or electronic message or any picture or comic drawing to His Majesty the King, or place such message, picture or drawing in a manner that would prejudice the dignity of His Majesty or that he shall apply the same penalty if he commits any other person to perform any such acts.
The penalty provided for in paragraph (1) of this article shall be punished if the contents thereof are directed against Her Majesty the Queen or the Crown Prince or one of the guardians of the throne.
This article is used to charge the people who criticize the policy of the king and his family member. For example, the king was supporting the military coup in Egypt and was the first leader visiting Egypt after one week of the coup. Some journalists and activists criticizing this visit sent to the court under the charge (lengthening the tongue).
Article 152 relating to charge (undermine the state’s financial position)
Accordingly, any speech, shouting, writing, drawings pictures, and images of all kinds, if presented in a public place or place that is open to the public about the financial situation of the state to undermine confidence in the strength of the state
or to undermine confidence in the strength of the state’s criticism and bonds and all related support for public financial trust shall be punished by imprisonment from six months to three years and a fine not More than one hundred dinars.
Article 163 violates also this right which stating:
(Any person who prints, publishes, sells, offers for sale or sends a book, prospectus, circus, declaration, statement, publication or newspaper of an unlawful association or for its benefit shall be liable to imprisonment for a term not exceeding six months or a fine not exceeding 50 dinars).
In slander and slander and defamation, article 191 is related to political speech which has been given a wide protection under human rights laws. This article states:
(A penalty of imprisonment from three months to two years shall be imposed if he is directed to the parliament or one of its members during his work or because of what he has done by virtue of his work or to one of the official bodies, courts, public administrations or the army).
In fact, these cases are only for examples about the violations to the freedom of expression in the Jordanian Penal Code, also, many violations can be found in the Publications and Publications Law.
It is clear that freedom of expression has been enshrined in Human Rights laws as a fundamental right, no one or authority can interrupt you while practicing this right within the limitations laid down in article 10 HRA/19 ICCPR, no authority can punish you as long as you do not pass the restrictions set forth in the articles above. However, some articles in Jordanian Penal Code violate this right and impose unreasonable restrictions for political considerations.
In light of this, the person practicing this right will face many charges under this law: Disturbing relations with a foreign country, defamation, undermining the political regime in the kingdom or inciting opposition to it, lengthening the tongue, Insulting the state, subverting the ruling regime, inciting resistance to the regime, diminishing the prestige of the state, libelling (Parliament or its members), insulting foreign leaders, engaging in acts of terrorism, strife between people and disparaging parliament, government agencies.
Also, these charges fall into the state Security Court’s jurisdiction which is a military court consisting of military judges and civilian judges with military prosecutors. Thus, the Jordanian law allows civilians to be prosecuted by a military court for practicing their freedom of expression which considers a violation to human rights standards.
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(Mohamad Said, Jordanian Penal Code in details (Amman: Wael Press,2016)).
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