Azhar Cachalia
A SECOND LOOK
The Human Rights Commission’s (HRC) hearings into racism in the media is over. The dust has settled and most members of the media seem to agree that the process was a productive one. The hearing provoked vibrant discussion both inside and outside the media industry.
The industry must tackle those vestiges of racism which impede its ability to report the news fairly and accurately. The press in particular has a vital role to play in the front line of the battle to maintain democracy. As our courts have said: “The function of the press in a democratic society is to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators. The press must reveal dishonest, mal- and inept administration. It must contribute to the exchange of ideas, and must advance communication between the governed and those who govern. The press must act as the watchdog of the governed.”
One of the issues that had arisen prior to the commencement of the hearings and that threatened to derail the entire process was the commission’s decision to invoke its power of subpoena in order to secure the presence of representatives of the media at the hearing.
The HRC had apparently issued the subpoenas fearing that representatives of the media would not attend the hearings voluntarily. At the time, political parties entered the fray with some senior politicians supporting the commission’s decision to embark on this course of action from what appeared to be an ill- informed position.
The President’s Office issued contradictory responses, with the president’s representative stating correctly that it was inappropriate for the government to become involved in a dispute between a constitutionally independent body, such as the HRC, and the media. The president’s legal adviser, on the other hand, surprisingly contradicted this by publicly supporting the commission’s decision to issue the subpoenas.
While there were considerable differences of opinion on the part of media practitioners on how to respond to the subpoenas, there was general agreement that the commission should not have issued them.
It is, of course, to the credit of the HRC and particularly its chair, Dr Barney Pityana, that it reversed its earlier decision and withdrew the subpoenas after representations from the media industry. In so doing it diffused the tension and damage that the issue was causing and turned the inquiry into a productive exercise.
Why was the media opposed to the subpoenas? It was not, as some alleged, because it was afraid to deal with the issue of racism in the media.
First, the use of a coercive mechanism was both unnecessary and counter-productive and, second, the use of the power of the subpoena in the context of the present inquiry violated certain constitutional rights, including the right to freedom of expression. The media did not recklessly arrive at this position, but did so after having taken legal advice from some of the most eminent legal counsel in the country.
The commission sought to justify issuing the subpoenas on the ground that it had the power to do so. It is true that the law gives the HRC the power to issue a subpoena but only in relation to “an alleged violation of fundamental rights”. To require members of the media to appear before the commission to testify generally on matters relating to racism in the media in the absence of any alleged violation of fundamental rights was improper, as it went beyond the commission’s powers. Our courts have said that where a subpoena constitutes an abuse of a process of the court, “the court will not hesitate to say so and to protect both the court and the parties affected thereby from such abuse”.
It is necessary to understand that while some editors had reservations about appearing before the inquiry, their objection related to the nature of the inquiry and the process that had been embarked upon. No one was averse to addressing the question of racism in the media in a different and non-adversarial manner.
The editors had also been advised that the HRC had not exercised a proper discretion in issuing the subpoenas. It is clear that the commission thought it may issue subpoenas simply because it had the power to do so. Our courts have emphasised that in exercising such a serious power, public officials must exercise a proper discretion. In particular, they should investigate less intrusive means to secure the attendance of a person at a hearing before resorting to a power of subpoena. None of the editors had indicated that they would not attend the hearings at the time that the subpoenas were issued.
The HRC should have taken guidance from a less adversarial approach the government has taken in dealing with the issue of subpoenas to journalists who may be required to give evidence as witnesses in cases involving the commission of a crime.
Last year the ministries of safety and security and justice arrived at an agreement with the South African National Editors’ Forum in terms of which the government agreed to use the power of subpoena against journalists judiciously. It was agreed that the national director of public prosecutions would carefully weigh up the administration of justice against the freedom of expression before issuing any subpoena against a journalist. The government did so in recognition of the fact that the issue of subpoenas against journalists has historically been a very sensitive matter for the media. This is because the apartheid government frequently resorted to this power to intimidate journalists who were perceived to be sympathetic to the anti-apartheid struggle.
Members of the media were also very concerned about the possible infringement of its freedom of expression and, in particular, the “chilling effect” that the subpoenas would have for media reporting. The terms of the subpoenas were extremely wide and open-ended, requiring those subpoenaed “to testify on your products’ policies and guidelines on the reporting of, and commenting on, national and international events, which impact on racism and possible incidents of racism”. The subpoena concluded with the ominous threat that failure to comply with the notice constituted an offence. It was never suggested that any of those upon whom subpoenas were served were suspected of committing any offence against the laws of the land. Nor were adequate reasons given for furnishing the subpoenas as was required by law.
These were the circumstances where the editors felt they would be threatened by self- censorship. Whenever there is a threat of imposing penalties, whether financial or criminal, for certain types of speech there is inevitably a “chilling effect”, with the result that free expression is undermined and a propensity to self-censorship is introduced. South African and foreign courts have frequently acknowledged this phenomenon.
In the circumstances of what was perceived at the time to be an adversarial and coercive inquiry, the threat that newspapers may be intimidated into opting for a non-confrontational course, and to avoid articulating controversial or even important points of view for fear of the consequences, was therefore very real.
The saga around the issuing of the subpoenas to the editors and their subsequent withdrawal provides a salient lesson to officials in the government or other organs of state who are responsible and accountable for the exercise of public power. Public officials should be circumspect when using powers that Parliament has given them, especially when such powers are coercive. The building of real power and integrity of any political or social system is a consequence of the state exercising restraint in the use of power, rather than utilising such power as a blunt instrument.
Azhar Cachalia is an attorney at Cheadle, Thomson and Haysom