‘We have to strongly assert our rights now’

In this instalment of The Daily Star's interview series that aims to give readers an idea of what changes to expect in a post-Covid-19 world, Dr Shahdeen Malik, advocate at the Supreme Court of Bangladesh, talks to Eresh Omar Jamal about the right to freedom of speech and expression and the limiting of human rights by governments.

David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, warned in his report to the UN Human Rights Council on April 23 that there has been several incidents of journalists and human rights defenders around the world being intimidated, detained, harassed and questioned for their work during the lockdown. Free speech, it seems, has taken a backseat during the outbreak. What are your thoughts on that?

The fact that freedom of speech has taken a backseat in this corona time is not surprising. Historically, in times of national emergencies of any kind, states have assumed more power. And this assumption of power have been justified under the excuse that states need greater power to rescue the nation—to take drastic measures, etc. Exercise of freedom of speech or other freedoms in such times, have been viewed as obstacles to the state's necessity, and hence, these freedoms have been sacrificed or become less important.

Generally, popular governments in times of crisis enjoy the support of their populace. And people generally also tend to think that the exercise of these freedoms may jeopardise or hinder the national process. The best example is of course in war time, when the government usually manages to excite the people against the enemy and take emergency measures.

Now we don't have war, we have pandemic. But still war like language is often being used. There have been mentions of us fighting an invisible war—meaning the coronavirus. And hence freedom of speech is once again the usual casualty.

Some human rights defenders believe that the right to free speech is the most important right, as it allows people to negotiate and determine other rights and even express when rights are violated. What is your opinion on that?

Generally I am against any hierarchy of rights. I think all rights are equally important. Yes freedom of speech is more important in terms of holding the government accountable. But I mean, rights against say unjustified incarceration, the taking away of one's liberty arbitrarily without due process, is no less fundamental—neither is the right to not be tortured. So I think all rights are essential, for different purposes and in different situations.

During the lockdown, we have seen different quarters globally, such as governments, big social media platforms and even journalists in some cases, call for restricting the speech of others. Who do you think should determine what restrictions should be placed on the right to free speech? And what dangers might arise from granting someone the right to do so?

Certainly I don't agree with such calls. If anything, during this particular time of crisis, greater exercise of freedom of speech or expression will better help facilitate the taking of right decisions. In the absence of freedom of speech, the government may end up taking whimsical, unwise decisions—decisions without the participation of the populace that often tend to be wrong.

I am appalled by this practice that we have become used to, of watching our TV at 2 30 in the afternoon, where we have the health bulletin of how many people were tested positive and passed away in the last 24 hours. These so called briefings without any opportunity to question or challenge almost reminds me of our practice during martial law regimes.

We are not allowed to ask any questions when there are so many questions to ask about the government's efficiency and success—to hold the government accountable in terms of its efforts to control the virus. And now we know that the government has miserably failed. If the government had allowed the relevant journalists, particularly those covering the health sector, to ask challenging questions, the government would have had to justify its decisions. And I am sure that would have helped the government come up with much better responses than it is managing now. So to my mind, the poor response from the government so far, to a large part, is down to the fact that it has decided to remain silent and silence those who ask questions. And so, in a way, it has refused to face up to the people.

By taking questions, it could have involved the entire population in this struggle. But now it is clearly only a government effort. And every afternoon the people are just made to listen to some sermon on what we should do and what we should not, without being a party to those decisions.

Historically, people have always been more prone to accept restrictions on their rights and even support restrictions on the rights of others, during times of crisis as you yourself alluded to. Why do you think that is and how does that usually pan out in the long run?

No I didn't mean to say that people have been more willing to accept restrictions on their rights. In these periods, so-called national interests have been prioritised over individual interests.

Unlike America, we have a very state-centric view of our well-being. And this state-centric view of our well-being has been generated by the state. The state has been able to put out the view that the state is always taking measures for the good of the people, which is not necessarily true, and is the least true in the present time.

Most of the measures of the state have been dictated by those at the helm of power, in an effort to perpetuate their power and perpetuate the benefits of their power. And their self-centred, self-promoting effort are facilitated by restricting our rights. So it is very normal that to ensure the perpetuity of their power and the benefits of that power, they are limiting our rights. If this trend of limiting rights continue, then not only will we lose our rights, but this corona crisis will go on for a longer period with enormous cost to all sectors—health, education and the economy in general.

I must add here that I am really baffled by the judiciary. To me it seems that it has totally abdicated its role of holding the government accountable. Virtually right now we don't have a judiciary. Our judiciary has essentially been in hibernation mode since the end of March.

The function of the judiciary and the parliament and to an extent the press, is to hold the government accountable. The parliament is not in session, even the budget is being pushed through after having very few discussion sessions. And the judiciary is in complete lockdown. I mean nobody else is in that kind of lockdown anymore. Why is the judiciary still in complete lockdown? It is letting the government do what it wants to, basically with no accountability. The limitation of rights, coupled with the abdication of its role by the judiciary, will always foster a more abusive government—which will lead to a more prolonged health disaster, among other disastrous consequences.

Based on that, and the regression of rights we have seen recently, what are your thoughts on the right to free speech in a post-Covid-19 world?

We have to strongly assert our rights now, and not wait for a post-Covid world. I am encouraged by some recent comments and news reports that I have seen in our media, which is increasingly becoming more critical, but also realistic about the government's almost utter failure in dealing with this crisis. The government can for the time being ignore the criticism. But I think more trenchant use of freedom of speech, particularly by those who care for the nation, will have a tremendous positive role in pursuing the government to take better measures.

It is incumbent upon those who are supposed to hold the government responsible to now openly exercise their right to free speech more sharply and with greater focus, to compel the government to change course when it is doing wrong. And to encourage it to do what is right and to take more efficient measures. I think people should be more vocal about the corruption, lack of coordination and the self-pursuit of people in power, and the establishment of special medical facilities for the so-called important persons, while the rest of the population is ignored—and it is essential that people start doing that now.