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FREEDOM OF SPEECH AND EXPRESSION AND SEXUAL AND REPRODUCTIVE HEALTH AND RIGHTS: Connections and Contemporary Context in the Asia Pacific Region.

By Sai Jyothirmai Racherla

Deputy Executive Director, ARROW

Email: sai@arrow.org.my

The Global Expression Report 2018-19 documents over 90% of the people in the Asia and the Pacific region live in countries which saw a decline in Freedom of Expression over the last decade. (1) Threats to freedom of expression and access to information including sexual and reproductive health and rights (SRHR), particularly online expression, are on an increase in the Asia Pacific region. (2) A rise in populism, fundamentalism, misogynistic, sexist and homophobic environments, hate speech normalising violence against women, young people and gender nonconforming persons, and socio-cultural barriers steeped in patriarchy continue to exclude young people, women and marginalised communities from exercising their right to freedom of expression, access to information as well as engagement in civic space.

At the policy level, this stifling of freedom of expression, opinion and information, is orchestrated via the enactment and implementation of laws in respective countries. The colonialera penal provisions such as sedition, obscenity acts, penal codes, and national security measures in the form of criminal defamation and cyber security legislations, further impede the right to freedom of expression and access to information, including on sexuality. In the current COVID-19 crisis this right is under threat as an excuse to adopt aggressive laws, including emergency, that restricts freedom of expression, peaceful assembly and association. Internet shutdowns are frequent and have been documented in countries like Sri Lanka, India, Singapore, Thailand, and Vietnam in the recent past, further restricting freedom of expression and access to information. (3)

The right to freedom of expression and access to information is established in international conventions, treaties, UN conferences, and has its origins in the first session of the United Nations' General Assembly as "a fundamental human right". (4) Furthermore, the right to freedom of expression and access to information has been guaranteed globally through Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights. (5)

Article 19 in the Universal Declaration of Human Rights establishes, "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." This right is fundamental to participation, accountability, sustainable development and exercise of all other rights, including SRHR, and extends to the realm of online and offline settings in the contemporary context in the Asia Pacific region.

Sexuality and SRHR information and services, have clear connections in the established right to freedom of expression and access to information. This builds from the fact that all human rights--political, civil, social, cultural and economic-are equal in importance and none can be fully enjoyed without the others.

At the 1994 International Conference on Population and Development (ICPD) Programme of Action, (6) and the Beijing Platform for Action (table), governments endorsed the right to be informed on SRHR. Furthermore, the UN Committee on Economic, Social and Cultural Rights, noted in its general comment in 2000 that the right to health is connected and dependent on the realisation of rights such as the right to information. The Committee further recommended that States should implement "all possible Measures". (7) The reference to "all possible measures" can expand to include the right to information around comprehensive sexuality education, gender equality, sexuality, contraception, abortion, infertility, pregnancy including risk of early pregnancy and closely-spaced pregnancies, childbirth and well-being, reproductive tract infections, sexually transmitted diseases including HIV/AIDS, and cancers of the reproductive system among other sexual and reproductive health and rights.

KEY TRENDS IN THE REGION THAT ARE NEGATIVELY IMPACTING OBLIGATIONS OF THE STATES TO COMPLY WITH INTERNATIONAL COMMITMENTS AND CONSTITUTIONAL PROVISIONS PERTAINING TO RIGHT TO FREEDOM OF EXPRESSION, AND ACCESS TO INFORMATION INCLUDING SRHR.

Firstly, countries in the region are witnessing a systematic crack down on critical and progressive voices. Human rights defenders, activists, and NGOs in the region increasingly face criminal charges of "sedition" and "defamation" for expressing critical opinions. Civil society in many countries in the region face the challenge of fighting threats to freedom of expression from content restrictions, imposing legal and administrative requirements and other censorships. For example, the recent adoption of the Indian Foreign Contribution (Regulation) Amendment Bill 2002 (FCRA) in India, fails to comply with India's international obligations and constitutional provisions around the right to freedom of expression, association and assembly. Restrictions in the bill will further threaten and harass civil society, human rights advocates, and restrict access to funding including for smaller youth-led, youth-serving SRHR and women organisations and this will have an impact at the grassroots and around sustainable, human rights-based development work. (11)

Secondly, restrictive donor policies around SRHR information and services, such as the Global Gag Rule, introduced in 2017, requiring NGOs receiving funding from United States to certify that they do not engage in abortion-related activities, including counselling, referral and advocacy on the access to safe abortion information and services. This rule is having a major impact on women and girls in the region.

Further to this, all human rights treaties/ frameworks (refer to the table on page 31), expound the right to freedom of expression and access to SRHR information for all persons in all their diversity. This implies States should take measures to ensure SRHR information does not discriminate against groups such as unmarried women, young people, ethnic, indigenous and minority groups, gender non-conforming or any other groups or individuals. It is the core obligation of States to ensure the repeal of laws, policies and practices that criminalise, obstruct or undermine access to sexual and reproductive health information and services. (12)

In Indonesia, the Constitutional Court received a petition seeking to criminalise consensual, same-sex behaviour and increase penalties for sexual activity out of wedlock. The proposed amendments to the Penal Code included limits on the distribution of contraceptive supplies anc on the provision of information about contraception, which goes against human rights obligations of the state. (13) This petition was narrowly but successfully rejected by Indonesia's constitutional court in 2017, and shines positive light on the ability of rights activists to challenge rights violations and over-criminalisation of sexuality. (14)

Thirdly, across the region, gender and sexuality is encountered with threats and violence. In the recent past we have witnessed online harassment and persecution of women human rights defenders, and lesbian, gay, bisexual, trans and queer (LGBTIQ+) activists across countries in the region, particularly in Indonesia, Malaysia, Pakistan, and Bangladesh. (15) While Pakistan's recent Transgender Persons (Protection of Rights) Act, is one step forward, organised criminal gangs have continued to target transgender communities for their work on human rights through sexual violence, gang rapes, and murder. In Indonesia, in 2018, policemen raided beauty salons in Aceh, detaining 12 trans rights activists and forcing them to publicly undress and have their hair cut. (16) Restrictive laws and regulations relating to expression of sexual orientation and gender identity have also contributed to increased stigma and harassment in health-care settings for LGBTIQ persons seeking sexual health care and services, including refusal of admission of services and a lack of comprehensive health services tailored to their needs. (17)

The right to freedom of expression, and access to information is crucial to the realisation of SRHR in its entirety for all persons in all their diversity. These rights are inter-dependent and cannot exist in silos and the realisation of one right is squarely dependent on the realisation of all other rights. The connection is best expressed in Yogyakarta Principle 19, which succinctly looks at the linkages of freedom of expression and access to information to sexuality, sexual and reproductive health and rights: "Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity. This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers." (18)

Notes & References

(1.) Article. "Global Expression Report. ASIA PACIFIC: Regional Overview." 2019. Article19.org. https://www.article19.org/reader/global-expression-report-2018-19/ regional-overviews/asia-pacific-regional-overview/.

(2.) Articles. Asia Pacific, https://www.3rticle19.org/regional-office/asia-pacific.

(3.) Ibid.

(4.) Retrieved from UN General Assembly Resolution 59(1), 14 December 1946.

(5.) Article 19. "Time For Change: Promoting and Protecting Access To Information and Reproductive and Sexual Health Rights in Peru." January 2006. https://www.article19.org/data/files/pdfs/publications/peru -time-for-change.pdf.

(6.) Programme of Action of the International Conference on Population and Development, Cairo, 5-13 September 1994, UN doc. A/CONF.171/13, 18 October 1994, para. 7.2. The Conference was global, being attended by representatives from 183 countries, of whom 155 made statements (UN doc. A/CONF.171/13, 18 October 1994). This statement is replicated in paragraph 96 of the Beijing Platform for Action: Fourth World Conference on Women, 15 September 1995, A/CONF.177/20 (1995).

(7.) Article19. "Time For Change: Promoting and Protecting Access To Information and Reproductive and Sexual Health Rights in Peru." January 2006. https://www.article19.org/data/files/pdfs/publications/peru-time-for-change.pdf.

(8.) Retrieved from UN doc. A/CONF.171/13, 18 October 1994.

(9.) UN Women. The United Nations Fourth World Conference on Women. September 1995. UN. https://www.un.org/womenwatch/daw/beijing/platform/health.htm.

(10.) The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfil that precious birth right.

(11.) Seiderman, Ian. "India: FCRA Amendment 2020 will undermine the work of Civil Society." September 24, 2020. International Commission of Jurists, https://www.icj.org/india-fcra-amendment-2020-will-undermine-the-work-of-civilsociety/.

(12.) Boram, Jang. "ICJ webinar highlights States' international human rights obligations to decriminalize abortion and ensure access to safe and legal abortion." September 29, 2020. International Commission of Jurists, https://www.icj.org/icjs-international-safe -abortion-day-webinar-highlightedstates-international-human-rights-obligations-to -decriminalizeabortion-and-ensure-access-to-safe-and-legal-abortion/.

(13.) United Nations General Assembly. "Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on his mission to Indonesia." April 5, 2018. https://documentsdds-ny.un.org/doc/UNDOC/GEN/G18/084/20/PDF/G1808420.pdf?OpenElement.

(14.) Beo Da Costa, Agustinus. "Indonesia court rejects petition to bar consensual sex outside marriage." December 14, 2017. Reuters, https://www.reuters.com/article/us-indonesiacourt-adultery-idUSKBN1E80BI.

(15.) Article-19. "Global Expression Report. ASIA PACIFIC: Regional Overview." 2019. Article19.org. https://www.article19.org/reader/global-expression-report-2018-19/regional -overviews/asia-pacific-regional-overview/asiapacific-countries-in-focus/country-in-focus-malaysia/.

(16.) Ibid.

(17.) United Nations General Assembly. "Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on his mission to Indonesia." April 5, 2018. https://documentsdds-ny.un.org/doc/UNDOC/GEN/G18/084/20/PDF/G1808420.pdf?OpenElement.

(18.) Yogyakarta Principles. The Yogyakarta Principles plus 10. https://yogyakartaprinciples.org/.
INTERNATIONAL HUMAN RIGHTS FRAMEWORKS THAT AFFIRM THE RIGHT TO
FREEDOM OF EXPRESSION AND INFORMATION WITH FOCUS ON SEXUAL AND
REPRODUCTIVE HEALTH INFORMATION AND SERVICES
International Human Rights     Specific Article References
Treaties UN Conference
on the Right to Information
Including SRHR Information
Universal Declaration of       Articles 19 (Right To Infor-
Human Rights                   mation) and 25 (Right To Health).
International Covenant on      Article 1; Article 2 (para 2);
Economic, Social and           Article 3 (Non-Discrimination),
Cultural Rights                Article 10 (Right To Family, and
                               And Consent And Choise to Marriage)
                               Article 12 (Right To Health).
International Covenant on      Article 19 (Right To Information);
Civil and Political Rights     Article 20; Article 26 (Non-
                               Discrimination and Equality Before
                               The Law); Article 23 (Equality in
                               Marriage).
                               ... that people are able to have a
                               satisfying and safe sex life and
                               that they have the capability to
                               reproduce and the freedom to decide
                               if, when and how often to do so ...
                               implicit in this last condition are
                               the right ... to be informed (Para 7.2);
International Covenant on      Specifically, Governments ... by
Civil and Political Rights     removing unnecessary legal, medical,
                               clinical and regulatory barriers to
                               information ...  (Para. 7.20);
                               ... obligation to maintain ethical and
                               technical standard for SRHR services in
                               the context of fertility in particular
                               (para 12.16). (8)
                               The human rights of women include their
                               right to have control over and decide
                               freely and responsibility on matters
                               related to their sexuality, including
                               sexual and reproductive health, free of
                               coercion, discrimination and violence
                               (Para. 96). (9)
Beijing Platform for Action:    The Paragraphs 89-105:
Fourth World Conference on      --Strategic objective C.1. Increase
Women, 15 September 1995,       women's access throughout the life
                                cycle to appropriate, appropriate,
                                affordable and quality health care,
                                information and related services;
                                --Strategic objective C.4. Promote
                                research and disseminate information
                                on women's health.
Transforming our world: The     Target 3.7: By 2030, ensure universal
2030 Agenda for Sustainable     access to sexual and reproductive
Development (Resolutin 70/1)    health-care services, including for
                                Family planning, information and
                                Education, and the integration of
                                Reproductive health into national
                                Strategies and programmes.
The Yogyakarta Principles       (Principle 19: The Right to Freedom
(10) Plus 10 (2017)             of Opinion and Expression.
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Title Annotation:factfile
Author:Racherla, Jyothirmai
Publication:Arrows For Change
Geographic Code:0PACR
Date:Mar 1, 2020
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