15 Jul 19 | Magazine, News and features, Volume 48.02 Summer 2019
[vc_row][vc_column][vc_custom_heading text=”Index editor Rachael Jolley argues in the summer 2019 issue of Index on Censorship magazine that it is vital to defend the distance between a nation’s leaders and its judges and lawyers, but this gap being narrowed around the world” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][vc_column_text]
It all started with a conversation I had with a couple of journalists working in tough countries. We were talking about what kind of protection they still had, despite laws that could be used to crack down on their kind of journalism – journalism that is critical of governments.
They said: “When the independence of the justice system is gone then that is it. It’s all over.”
And they felt that while there were still lawyers prepared to stand with them to defend cases, and judges who were not in the pay of – or bowed by – government pressure, there was still hope. Belief in the rule of law, and its wire-like strength, really mattered.
These are people who keep on writing tough stories that could get them in trouble with the people in power when all around them are telling them it might be safer if they were to shut up.
This sliver of optimism means a great deal to journalists, activists, opposition politicians and artists who work in countries where the climate is very strongly in favour of silence. It means they feel like someone else is still there for them.
I started talking to journalists, writers and activists in other places around the world, and I realised that although many of them hadn’t articulated this thought, when I mentioned it they said: “Yes, yes, that’s right. That makes a real difference to us.”
So why – and how – do we defend the system of legal independence and make more people aware of its value? It’s not something you hear being discussed in the local bar or café, after all.
Right now, we need to make a wider public argument about why we all need to stand up for the right to an independent justice system.
[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-quote-left” color=”custom” size=”xl” align=”right” custom_color=”#dd3333″][/vc_column_inner][vc_column_inner width=”3/4″][vc_custom_heading text=”On an ordinary day, most of us are not in court or fighting a legal action, so it is only when we do, or we know someone who is, that we might realise that something important has been eroded” font_container=”tag:h3|text_align:left” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][/vc_column_inner][/vc_row_inner][vc_column_text]
We need to do it because it is at the heart of any free country, protecting our freedom to speak, think, debate, paint, draw and put on plays that produce unexpected and challenging thoughts. The wider public is not thinking “hey, yes, I worry that the courts are run down, and that criminal lawyers are in short supply”, or “If I took a case to trial and won my case I can no longer claim my lawyer’s fees back from the court”. On an ordinary day, most of us are not in court or fighting a legal action, so it is only when we are, or when we know someone who is, that we might realise that something important has been eroded.
Our rights are slowly, piece by piece, being undermined when our ability to access courts is severely limited, when judges feel too close to presidents or prime ministers, and when lawyers get locked up for taking a case that a national government would rather was not heard.
All those things are happening in parts of the world right now.
In China, hundreds of lawyers are in prison; in England and Wales since 2014 it has become more risky financially for most ordinary people to take a case to court as those who win a case no longer have their court fees paid automatically; and in Brazil the new president, Jair Bolsonaro, has just appointed a judge who was very much part of his election campaign to a newly invented super-ministerial role.
Helpfully, there are some factors that are deeply embedded in many countries’ legal histories and cultures that make it more difficult for authoritarian leaders to close the necessary space between the government and the justice system.
Many people who go into law, particularly human-rights law, do so with a vision of helping those who are fighting the system and have few powerful friends. Others hate being pressurised. And in many countries there are elements of the legal system that give sustenance to those who defend the independence of the judiciary as a vital principle.
Nelson Mandela’s lawyer, Sir Sydney Kentridge QC, has made the point that judges recruited from an independent bar would never entirely lose their independence, even when the system pressurised them to do so.
He pointed out that South African lawyers who had defended black men accused of murder in front of all-white juries during the apartheid period were not easily going to lose their commitment to stand up against the powerful.
Sir Sydney did, however, also argue that “in the absence of an entrenched bill of rights, the judiciary is a poor bulwark against a determined and immoderate government” in a lecture printed in Free Country, a book of his speeches.
So it turned out that this was the right time to think about a special report on this theme of the value of independent justice, because in lots of countries this independence is under bombardment.
It’s not that judges and lawyers haven’t always come under pressure. In his book The Rule of Law, Lord Bingham, a former lord chief justice of England and Wales, mentions a relevant historical example. When Earl Warren, the US chief justice, was sitting on the now famous Brown v Board of Education case in 1954, he was invited to dinner with President Dwight Eisenhower. Eisenhower sat next to him at dinner and the lawyer for the segregationists sat on his other side. According to Warren, the president went to great lengths to promote the case for the segregationists, and to say what a great man their lawyer was. Despite this, Warren went on to give the important judgement in favour of Brown that meant that racial segregation in public schools became illegal.
Those in power have always tried to influence judges to lean the way they would prefer, but they should not have weapons to punish those who don’t do so.
In China, hundreds of lawyers who stood up to defend human-rights cases have been charged with the crime of “subverting state power” and imprisoned. When the wife of one of the lawyers calls on others to support her husband, her cries go largely unheard because people are worried about the consequences.
This, as Karoline Kan writes on p23, is a country where the Chinese Communist Party has control of the executive, judicial and legislative branches of government, and where calls for political reform, or separation of powers, can be seen as threats to stability.
As we go to press we are close to the 30th anniversary of the Tiananmen Square killings, when thousands of protesters all over China, from all kinds of backgrounds, had felt passionately that their country was ready for change – for democracy, transparency and separation of powers.
Unfortunately, that tide was turned back by China’s government in 1989, and today we are, once more, seeing China’s government tightening restrictions even further against those who dare to criticise them.
Last year, the Hungarian parliament passed a law allowing the creation of administrative courts to take cases involving taxation and election out of the main legal system (see p34). Critics saw this as eroding the gap between the executive and the justice system. But then, at the end of May 2019, there was a U-turn, and it was announced that the courts were no longer going ahead. It is believed that Fidesz, the governing party in Hungary, was under pressure from its grouping in the European Parliament, the European People’s Party.
If it were kicked out of the EPP, Hungary would have in all likelihood lost significant funding, and it is believed there was also pressure from the European Parliament to protect the rule of law in its member states.
But while this was seen as a victory by some, others warned things could always reverse quickly.
Overall the world is fortunate to have many lawyers who feel strongly about freedom of expression, and the independence of any justice system.
Barrister Jonathan Price, of Doughty Street Chambers, in London, is part of the team advising the family of murdered journalist Daphne Caruana Galizia over a case against the Maltese government for its failure to hold an independent inquiry into her death.
He explained why the work of his colleagues was particularly important, saying: “The law can be complex and expensive, and unfortunately the laws of defamation, privacy and data protection have become so complex that they are more or less inoperable in the hands of the untrained.”
Specialist lawyers who were willing to take on cases had become a necessary part of the rule of law, he said – a view shared by human-rights barrister David Mitchell, of Ely Place Chambers, in London.
“The rule of law levels the playing field between the powerful and [the] powerless,” he said. “It’s important that lawyers work to preserve this level.”
Finally, another thought from Sir Sydney that is pertinent to how the journalists I mentioned at the beginning of this article keep going against the odds: “It is not necessary to hope in order to work, and it is not necessary to succeed in order to hope in order to work, and it is not necessary to succeed in order to persevere.”
But, of course, it helps if you can do all three.
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Rachael Jolley is editor of Index on Censorship. She tweets @londoninsider. This article is part of the latest edition of Index on Censorship magazine, with its special report on local news
Index on Censorship’s spring 2019 issue is entitled Is this all the local news? What happens if local journalism no longer holds power to account?
Look out for the new edition in bookshops, and don’t miss our Index on Censorship podcast, with special guests, on Soundcloud.
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/3″][vc_custom_heading text=”How governments use power to undermine justice and freedom” font_container=”tag:h3|text_align:left” link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2F2019%2F06%2Fmagazine-judged-how-governments-use-power-to-undermine-justice-and-freedom%2F|||”][vc_column_text]The summer 2019 Index on Censorship magazine looks at the narrowing gap between a nation’s leader and its judges and lawyers.[/vc_column_text][/vc_column][vc_column width=”1/3″][vc_row_inner][vc_column_inner][vc_single_image image=”107686″ img_size=”full” onclick=”custom_link” link=”https://www.indexoncensorship.org/2019/06/magazine-judged-how-governments-use-power-to-undermine-justice-and-freedom/”][/vc_column_inner][/vc_row_inner][/vc_column][vc_column width=”1/3″][vc_custom_heading text=”Subscribe” font_container=”tag:h3|text_align:left”][vc_row_inner][vc_column_inner][vc_column_text]In print, online. In your mailbox, on your iPad.
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24 Jun 19 | China, News and features, United Kingdom, United States, Venezuela, Volume 48.02 Summer 2019, Volume 48.02 Summer 2019 Extras
In the Index on Censorship summer 2019 podcast, we focus on how governments use power to undermine justice and freedom. Lewis Jennings and Rachael Jolley discuss the latest issue of the magazine, revealing their top picks and debating what rating they would be under China’s social credit rating system. Guests include best-selling Chinese author Xinran, who delves into surveillance in China; Italian journalist Stefano Pozzebon, who reveals the dangers of being a foreign journalist in Venezuela; and Steve Levitsky, the co-author of The New York Times best-seller How Democracies Die, discusses political polarisation in the US.
Print copies of the magazine are available on Amazon, or you can take out a digital subscription via Exact Editions. Copies are also available at the BFI, the Serpetine Gallery and MagCulture (all London), News from Nowhere (Liverpool). Red Lion Books (Colchester) and Home (Manchester). Each magazine sale helps Index on Censorship continue its fight for free expression worldwide.
The Summer 2019 podcast can also be found on iTunes.
21 May 19 | Artistic Freedom, News and features, Press Releases, Risks, Rights and Reputations
[vc_row][vc_column][vc_column_text]UK-based freedom of expression organisation Index on Censorship has launched a new service to support arts organisations facing censorship. Building on a successful program of workshops for senior managers and boards in 2018, Index is setting up the Arts Censorship Support Service as part of its Artistic Freedom programme.
The Arts Censorship Support Service will provide assistance to colleagues in the cultural sector facing issues of censorship. The service is open to anyone in the cultural sector, employed or self-employed and the initial consultation will be free of charge. [/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/4″][vc_icon icon_fontawesome=”fa fa-times” color=”custom” background_style=”rounded” background_color=”black” size=”xl” align=”right” custom_color=”#dd3333″][/vc_column][vc_column width=”3/4″][vc_column_text]
The Arts Censorship Support Service is part of a broader programme of work offering resources to the arts sector in the UK.
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]Index on Censorship staff as well as a network of senior-level cultural sector and legal professionals with significant experience in managing complex ethical, reputational and legal issues, are available to offer advice on a wide range of issues, including:
- Checking at the earliest stage of production of a new work whether there is the potential of a legal challenge
- Advising on a communications strategy in support of provocative work
- Advising how to manage hostile media attention
- Providing moral support and guidance on how to deal with the emotional stress associated with controversy.
The Arts Censorship Support Service is part of a broader programme of work offering resources to the arts sector in the UK. Index also offers bespoke training and consultancy at all levels, from one-to-one consultancy to boards and staff training, from schools workshops to development of bespoke guidance on freedom of expression.
A resource centre on the Index website also provides information via case studies that examine examples of how arts organisations have handled highly sensitised, contentious and complex issues in today’s society. Collectively, the case studies aim to equip arts organisations and artists with insight into what worked and what didn’t, what was contested, and what lessons were learned.
Five booklets covering Art and the Law give clear information about criminal laws governing freedom of expression and the protections available to arts organisation in mounting challenging work.
For more information, please contact: Sean Gallagher, Index on Censorship, [email protected][/vc_column_text][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1558424600419-80bbdd93-e9cd-4″ taxonomies=”15469″][/vc_column][/vc_row]
18 Apr 19 | Magazine, News and features, Volume 48.01 Spring 2019
[vc_row][vc_column][vc_custom_heading text=”Responding to violations of media freedom in Hungary has become a conundrum for the EU. With populist parties poised for large gains in the next European election, Sally Gimson explores in the spring 2019 issue of Index on Censorship magazine what the EU could do to uphold free speech in member countries” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][vc_column_text]
![Hungarian prime minister Viktor Orbán. Credit: EU2017EE Estonian Presidency / Flickr](https://www.indexoncensorship.org/wp-content/uploads/2019/04/Viktor-Orban.jpg)
Hungarian prime minister Viktor Orbán. Credit: EU2017EE Estonian Presidency / Flickr
Dutch MEP Judith Sargentini is enemy number one in the eyes of the Hungarian government. The Green politician incurred that government’s anger when she persuaded the European Parliament to the country losing voting rights.
She accused Hungary, among other democratic failings, of not ensuring a free and uncensored press. But since the vote last September, nothing has happened, except that the Hungarian government launched a campaign against her on state television – and she no longer feels safe to travel there.
“[The government] has been spreading so much hate against me, and if the government is spreading hate, what if there is a lunatic around? I’m not taking the risk,” she said.
“The Hungarian government spent 18 million euros on a publicity campaign against me, after I won the vote – with TV commercials and a full-page advertisement with my face on it.” The other vocal critic of Hungary, Belgian Liberal MEP and former Belgian prime minister Guy Verhofstadt, as well as the philanthropist George Soros were targeted in the same campaign.
With the European elections coming up in May 2019, and the possibility of large gains by nationalist, populist parties, the question is what the EU can do to curb freedom of expression violations on its territory.
The problem according to Lutz Kinkel, managing director of the European Centre for Press and Media Freedom, is the EU has no specific competences over media freedom. No country can join the EU without guaranteeing freedom of expression as a basic human right under Article 49 of the Lisbon Treaty. Article 7 is triggered when there is “a clear risk” of a member state breaching EU values. Although this can lead to a country’s voting rights being taken away, to get to that point, all the other EU countries have to agree.
As Camino Mortera-Martinez, a senior research fellow at the think-tank Centre for European Reform in Brussels, said: “Article 7 is never going to work because it is so vague. [All the other] member states are never going to argue to punish another one by suspending voting rights.”
Historian Tim Snyder, author of The Road to Unfreedom, a book about how Russia works to spread disinformation within the West, told Index he thought Hungary should have been thrown out of the EU a long time ago. But, with Britain’s exit from the EU, it is difficult to start expelling countries now.
“The tricky thing about the European Union, and this goes not just for eastern Europe but everyone, is that there might be rules for how you get in, but once you are in the rules are a lot less clear,” he said.
[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-quote-left” color=”custom” size=”xl” align=”right” custom_color=”#dd3333″][/vc_column_inner][vc_column_inner width=”3/4″][vc_custom_heading text=”It’s like joining a sorority with very strict rules for entering, but when you are there you can misbehave and it is covered up by the group” font_container=”tag:h3|text_align:left” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][/vc_column_inner][/vc_row_inner][vc_column_text]
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Hungary is the most prominent country in Europe to put restrictions on media freedom. Not only is public service media directly under government control, and critical journalists have been fired, but the government has also made sure that private media has either been driven out of business or taken over by a few oligarchs close to Prime Minister Viktor Orbán. The only independent media are very small operations, publishing almost exclusively on the internet.
Snyder told Index: “I think Europeans generally made the mistake of thinking that it doesn’t matter if we have one small country which is going the wrong way [and that] Hungary can’t possibly affect others. But the truth is – because it is easier to build authoritarianism than democracy – one bad example does ripple outwards and Hungary isn’t just Hungary and Orbán isn’t just Orbán; they represent a kind of mode of doing things which other people can look to, and individual leaders can say: ‘That’s possible’.”
This is borne out by Index on Censorship’s Mapping Media Freedom project which tracked media freedom in 43 European countries and found patterns that showed countries following Hungary’s example including Poland.
Anita Kőműves is an investigative journalist in Hungary who works for non-profit investigative outlet Átlátszó.hu which won an Index award for digital activism in 2015. She says not only does Brussels do nothing to challenge Hungary’s undermining of the free press but people in the commission are persuaded it is not all that bad.
She said: “Orbán is walking a fine line with Brussels. He knows that he cannot go too far. Whatever happens here, it must be deniable and explainable. Orbán goes to Brussels, or sends one of his henchmen, and he explains everything away. He has bad things written about him every single day in Hungary and nobody is in jail, so everything is fine… everything is not fine. Freedom of speech, the fact that I can write anything I like on the internet and nobody puts me in jail, is not the same as freedom of media when you have a strong media sector which is independent of the government.”
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/4″][vc_icon icon_fontawesome=”fa fa-quote-left” color=”custom” size=”xl” align=”right” custom_color=”#dd3333″][/vc_column][vc_column width=”3/4″][vc_custom_heading text=”I think Europeans generally made the mistake of thinking that it doesn’t matter if we have one small country which is going the wrong way” font_container=”tag:h3|text_align:left” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]
The solution for Brussels, she argues, is not Article 7 but for the EU to use European competition law to challenge the monopoly on media ownership the government and government-backed companies have in Hungary.
Kinkel says that this would be a warning to other countries, such as Bulgaria and Romania, which are trying to control the media in similar ways and in the case of Bulgaria giving EU funds only to government-friendly media.
“Governments try to get hold of public service media: this is one step,” he said. “And the other step is to throw out investors and media they don’t like and to give media outlets to oligarchs who are government-friendly and so on and so on, and to start new campaigns against independent investigative journalists.”
In Poland, the European Commission invoked Article 7 because of the government’s threats to the independence of the judiciary. The government so far controls only the state media but, as journalist Bartosz Wieliński , head of foreign news at the Gazeta Wyborcza newspaper, points out, the government used that state media to hound the mayor of Gdańsk, Paweł Adamowicz, for months before he was assassinated in January this year.
Wieliński believes it was only after Britain voted to leave the EU that countries realised they would face little sanction if they chipped away at freedom of expression. Although the EU did not collapse as they expected, the initial disarray gave them an opportunity to test European mechanisms and find them wanting.
Maria Dahle is chief executive of the international Human Rights House Foundation. She believes financial sanctions could be the way to stop countries from crossing the line, as Poland and Hungary have.
“When allocating funding, it should be conditional,” she said. “If [member states] do violate the rule of law, it has to have consequences … and the consequences should be around financial support.”
But Mortera-Martinez warns if the EU starts punishing countries too much financially, it will encourage anti-EU feeling which could be counter-productive, leading to election wins for populist, nationalist parties. The effect of any populist gains in the May elections concerns Kinkel, also: “What is clear is that when the populist faction grows, they have the right to have their people on certain positions on committees and so on. And this will be a problem… especially for press and media freedom,” he said.
Back at the European Parliament, Sargentini is impatient. “It’s about political will, and the EU doesn’t have it at the moment,” she said. “It’s like joining a sorority [with] very strict rules for entering, but when you are there you can misbehave and it’s covered up by the group.”
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Sally Gimson is the deputy editor of Index on Censorship magazine.
Index on Censorship’s spring 2019 issue is entitled Is this all the local news? What happens if local journalism no longer holds power to account?
Look out for the new edition in bookshops, and don’t miss our Index on Censorship podcast, with special guests, on Soundcloud.
[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column width=”1/3″][vc_custom_heading text=”Is this all the local news?” font_container=”tag:h3|text_align:left” link=”url:https%3A%2F%2Fwww.indexoncensorship.org%2F2018%2F12%2Fbirth-marriage-death%2F|||”][vc_column_text]The spring 2019 issue of Index on Censorship magazine asks Is this all the local news? What happens if local journalism no longer holds power to account?
With: Libby Purves, Julie Posetti and Mark Frary[/vc_column_text][/vc_column][vc_column width=”1/3″][vc_row_inner][vc_column_inner][vc_single_image image=”105481″ img_size=”full” onclick=”custom_link” link=”https://www.indexoncensorship.org/2018/12/birth-marriage-death/”][/vc_column_inner][/vc_row_inner][/vc_column][vc_column width=”1/3″][vc_custom_heading text=”Subscribe” font_container=”tag:h3|text_align:left”][vc_row_inner][vc_column_inner][vc_column_text]In print, online. In your mailbox, on your iPad.
Subscription options from £18 or just £1.49 in the App Store for a digital issue.
Every subscriber helps support Index on Censorship’s projects around the world.
SUBSCRIBE NOW[/vc_column_text][/vc_column_inner][/vc_row_inner][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]This article has been updated on 18 April 2019 to reflect that the name of organisation Lutz Kinkel works for had been written incorrectly. The article read “European Centre for Press and Media Reform”, when it should have read “European Centre for Press and Media Freedom”.[/vc_column_text][/vc_column][/vc_row]