Freedom of thought and conscience, and of speech.
Freedom of thought (also called the freedom of conscience or ideas) is the freedom of an individual to hold or consider a fact, viewpoint, or thought independent of others’ viewpoints. It is different from and not to be confused with the concept of freedom of expression .’Freedom of thought’ is the derivative of and thus is closely linked to other liberties: freedom of religion, freedom of speech, and freedom of expression. It is a very important concept in the western world but nearly all democratic constitutions protect these freedoms. For instance, the U.S. Bill of Rights1 contains the famous guarantee in the First Amendment2 that laws may not be made that interfere with religion “or prohibiting the free exercise thereof”. A US Supreme Court Justice (Benjamin Cardozo) reasoned in Palko v. Connecticut3 (1937) that: Such ideas are also a vital part of international human rights law. In the Universal Declaration of Human Rights4 (UDHR), which is legally binding on member states of the International Covenant on Civil and Political Rights, freedom of thought is listed under Article 185: The Human Rights Committee states that this, “distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected5 unconditionally.” Similarly, Article 19 of the UDHR guarantees that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference…”
1The Bill of Rights is the name by which the first ten amendments to the United States Constitution are known. They were introduced by James Madison to the First United States Congress in 1789 as a series of legislative articles, and came into effect as Constitutional Amendments on December 15, 1791, when they had been ratified by three-fourths of the States.
5. “General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18) : . 30/07/93. CCPR/C/21/Rev.1/Add.4, General Comment No. 22. (General Comments)”. United Nations Human Rights Website – Treaty Bodies Database. Office of the United Nations High Commissioner for Human Rights. 1993-07-30. Retrieved 2007-10-21
2. LINKED LIBERTIES OF FREEDOM OF THOUGHT AND CONSCIENCE, AND OF SPEECH :
The fundamental rights of freedom of thought, conscience and religion and freedom of expression as cornerstones of a democratic society
Freedom of speech is the freedom to speak freely without censorship6 or limitation, or both. The right to freedom of speech is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR recognizes the right to freedom of speech as “the right to hold opinions without interference. Everyone shall have the right to freedom of expression”. Further more freedom of speech is recognized in European, inter-American and African regional human rights law. It is different from and not to be confused with the concept of freedom of thought.
Concepts of freedom of speech can be found in early human rights documents and the modern concept of freedom of speech emerged gradually during the European Enlightenment. England’s Bill of Rights 16897 granted ‘freedom of speech in Parliament’ and the Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right10. The Declaration provides for freedom of expression in Article 11, which states that: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.” This freedom of expression protects not only: “the information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broad-mindedness without which there is no democratic society.”8
6. Censorship is the suppression of speech or other communication which may be considered objectionable, harmful, sensitive, or inconvenient to the general body of people as determined by a government, media outlet, or other controlling body.
7. The Bill of Rights (a short title) is an act of the Parliament of England, whose title is An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown. It is often called the English Bill of Rights.
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any religion. Thomas Jefferson said (1807) “among the inestimable of our blessings, also, is that…of liberty to worship our Creator in the way we think most agreeable to His will;”
In a country with a state religion, freedom of religion is generally considered to mean that the government permits religious practices of other sects besides the state religion, and does not persecute believers in other faiths. For a current overview, see section Contemporary situation of religious freedom in the world.
Historically freedom of religion has been used to refer to the tolerance of different theological systems of belief, while freedom of thought was defined as freedom of individual action. Each of these has existed to varying degrees. While many countries have accepted some form of religious freedom, this has also often been limited in practice through punitive taxation, repressive social legislation, and political disenfranchisement. Compare examples of individual freedom in Italy or the Muslim tradition of dhimmis9, literally “protected individuals” professing an officially tolerated non-Muslim religion.
8.ECHR, Handyside v. the United Kingdom, 1976; ECHR, Sunday Times v. the United Kingdom, 1979; ECHR, Lingens v. Austria, 1986; ECHR, Oberschlick v. Austria, 1991; ECHR, Thorgeir Thorgeirson v. Iceland, 1992; ECHR, Jersild v. Denmark, 1994;ECHR, Goodwin v. the United Kingdom, 1996; ECHR, De Haes and Gijsels v. Belgium, 1997; ECHR, Dalban v. Romania,1999; ECHR, Arslan v. Turkey, 1999; EHCR, Thoma v. Luxembourg, 2001; ECHR, Jerusalem v. Austria, 2001; ECHR, Maronek v. Slovakia, 2001; ECHR, Dichand and Others v. Austria, 2002.
9.dhimmi, is a non-Muslim subject of a state governed in accordance with sharia law. The dhimma is a theoretical contract based on a widely held Islamic doctrine granting special status to Jewish, Christian, and other non-Muslim subjects.
3. THE ANALYSIS OF FREDOM OF THOUGHT ,conscience and speech
The analysis will involve reference to historical, political and social factors. We recognizes and believes that all persons have the right to freedom of thought, conscience and religion;1 that the right to freedom of opinion and expression includes the right to hold opinions without interference and to seek, receive and impart information and ideas via any media and regardless of frontiers and, therefore, we can say the following :
– All persons have the right to freedom of thought and speech related to their sexual and reproductive lives.
– All persons have the right to protection against restrictions on grounds of thought, conscience and religion to their access to education and information related to their sexual and reproductive health.
– Health care professionals have the right to conscientious objection with regard to providing contraception and abortion services only if they can refer the client to health professionals willing to provide the service immediately. No such right exists in emergency cases where lives are at risk.
AND further commits itself to taking all steps to ensure the attainment of the following right:
– All persons have the right to be free from the restrictive interpretation of religious texts, beliefs, philosophies and customs as tools to curtail freedom of thought on sexual and reproductive health care and other issues.
1. Universal Declaration of Human Rights, 1948, Art. 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Ibid, Art. 26.2: “Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.” International Covenant on Civil and Political Rights, 1996, Art. 18.1: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship observance, practice and teaching.”
4. Bangladesh purpose:
The basic structure of the Constitution” is an imprecise and elastic concept. There was no unanimity among the Judges regarding the components of the basic structure of the Constitution .Article 39 of the Bangladesh Constitution has provided freedom of thought, and conscience, and of speech. Article 39(1) has guaranteed freedom of thought and conscience in absolute language as state or any other authority cannot impose any restriction on any citizen the way she/he thinks. The state cannot make any law curbing thought and conscience of citizens, it cannot pass any instruction to which line the citizens should direct their thinking. Thought and conscience is the inherent attribute of human being and it is a continuous process through which human personality sprouts. So the Constitution very correctly recognizes this indispensable right of every citizen and keeps this right beyond any restriction.
The freedom of speech and expression and freedom of press have been guaranteed by Article 39(2)1 of the Constitution. Though freedom of press is implicit in the freedom of speech and expression but considering the importance of print media, freedom of press has been mentioned separately. But these freedoms are subject to any reasonable restrictions imposed by law in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, in relation to contempt of court, defamation or incitement to an offence. All the citizens of Bangladesh can exercise their freedom of speech and expression by remaining within the constitutionally stated horizon. If anybody oversteps the boundary she/he will be considered to have violated the constitutional provision and will be subject to sanction of law
Freedom of press, an offshoot of freedom of thought, conscience and speech, has become instrumental for establishing a democratic state where fairness, transparency and free expression constitute skeleton of that polity. Every segment of the above right is very important as freedom of thought and conscience is essential for developing human personality, knowledge and civilization. Freedom of speech and expression including freedom of press is the very foundation of democracy. Without ensuring free expression, criticism and open discussion democracy cannot function smoothly. But this freedom, like other rights, is not unfettered as it has been given to the citizens subject to a number of conditions including the right of the persons to remain unsoiled by the press reports. Freedom of press is important but right to reputation is also important, as it is the most dearly valued property and attribute of a citizen. So law has to accomplish the delicate task of maintaining a balance between two very important but conflicting rights.
1. Bangladesh constitution article number 39
Md Abdul Hoque ,advocate, supreme court of Bangladesh
Freedom of thought and conscience, and of speech is the reflection of people’s wishes and desires .The government should think very carefully before making any fundamental changes in it. However, the discussion and concern on the point is important. The propriety of freedom of thought, conscience and of speech can be determined by the fact that how efficaciously it can regulate the behavior of different segments of society. But sometimes law has to maintain a middle course to keep balance between different rights if they collide with each other, but not at the expense of justice. All the rights and provisions should be given effect to by the courts by harmonious interpretation if necessary. The Constitution guarantees rights of freedom of thought, conscience and of speech to the citizens and different professional groups, but limits the enjoyment of rights by security of states, welfare of society and rights of others. A check and balance system has been provided by the Constitution, now state machinery should ensure smooth exercise of citizens’ rights. At the same time judiciary, civil society and press should be cautious so that none can be harassed by manipulating state apparatus and citizens’ rights remain protected.
1. Coliver, S. (ed) (1995) The Right to Know: Human Rights and Access to Reproductive Health and Information (for Article 19) pp164-165
2. Development Studies Network (2000) ‘Adolescent Reproductive and Sexual Health in the Developing World’ Development Bulletin (56)
3. UNFPA (2000) The State of World Population p17
4. Timeline: a history of free speech” The Guardian. February 5, 2006
5. Andrew Puddephatt, Freedom of Expression, The essentials of Human Rights, Hodder Arnold, 2005, pg.128
8. Sanders, Karen (2003). Ethics & Journalism. Sage. pp. 67.
9. Goddard, Hugh (2000). A History of Christian-Muslim Relations. Edinburgh University Press. p. 100
10. de Sola Pool, Ithiel (1983). Technologies of freedom. Harvard University Press. pp. 14
11. Boisard, Marcel A. (July 1980). “On the Probable Influence of Islam on Western Public and International Law”. International Journal of Middle East Studies 11
12. Brett, Sebastian (1999). Limits to tolerance: freedom of expression and the public debate in Chile. Human Rights Watch. pp. xxv
13. Smith, David (2006-02-05). “Timeline: a history of free speech”. The Guardian (London). Retrieved 2010-05-02.
14. Lee Bollinger, The Tolerant Society, Oxford University Press, Oxford, 1988
15. Glanville, Jo (17 November 2008). “The big business of net censorship”. London: The Guardian
17. “II. How Censorship Works in China: A Brief Overview”. Human Rights Watch. Retrieved 2006-08-30.
18. Hutton, N (1999), ‘Sentencing, Inequality and Justice’, 8 Social and Legal Studies 233