Centre for Law and Democracy

Yesterday, Canada’s Information Commissioner, Suzanne Legault, released a report – Striking the Right Balance for Transparency: Recommendations to Modernize the Access to Information Act – which includes 85 recommendations for revamping Canada’s right to information system. The recommendations include tightening the regime of exceptions in Canada’s Access to Information Act, putting in place stronger oversight mechanisms, lowering the fees for access and processing requests in accordance with tighter timelines. The Centre for Law and Democracy (CLD) wholeheartedly supports these recommendations and calls on the government of Canada to conduct a holistic review of the Act, with a view to bringing it into line with international standards.

The Report is available here

“These recommendations, if adopted, would represent a bold step forward for Canada’s right to information system,” said CLD Executive Director, Toby Mendel. “And yet they are eminently achievable, as reflected in laws in countries around the world, such as those of India and Serbia, which already meet those standards.”

Legault is not the first Information Commissioner to call for major improvements to Canada’s Access to Information Act. Her predecessors, going back at least to John Reid in 2002, have issued reports with many of the same recommendations. Civil society, including CLD, has also been outspoken in calling for root-and-branch reform of the law. The RTI Rating (www.RTI-Rating.org) rates Canada’s law 57th in the world, a ranking which drops every year as other countries pass new and better laws, or reform their laws to leapfrog ahead of Canada.

Despite these calls, successive Canadian governments have refused to engage in substantive reform of the Access to Information Act, which has not been significantly improved since it was first passed over thirty years ago. We sincerely hope that, at long last, the government of Canada will heed the calls for change and prioritise reform of our access to information system. Transparency and the right to information are key pillars to democratic and accountable government. Canadians deserve a system that works and that we as a nation can be proud of.

Click here for a Joint statement from Civil Society on the Recommendations

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

Arab and international human rights and media experts world have adopted a Statement setting out a number of clear standards regarding the regulation of journalism. These include that it is not for governments to decide who is and who is not a journalist and that journalists have the right to choose freely which unions, associations and/or syndicates they wish to belong to and that they should not be required – by either the law or their employers – to belong to any particular syndicate. The Statement was developed and adopted at a regional meeting of human rights and media experts held in Tunis from 6-7 March 2015 which was organised by the Centre for Law and Democracy (CLD) working with partners the Arab Network for Human Rights Information (ANHRI), International Media Support (IMS) and Vigilance.

Click here for the Statement in English
Click here for the Statement in French
Click here for the Statement in Arabic

“The rules governing journalists in many countries in the Arab World have been designed with the aim of exerting government control over the profession, said Toby Mendel, Executive Director of CLD. “In many cases, this is achieved in part by channelling resources through mandatory membership syndicates in exchange for some degree of loyalty.”

The Statement recognises that journalism is different from other professions, inasmuch as the very substance of what journalists do – seeking and imparting information and ideas – is a fundamental human right. This means that the profession should be open to all. Some of the other important standards set out in the Statement are:
• Journalists’ syndicates and unions should not act as gatekeepers for the profession.
• Public funding and resources are legitimate only where provided through a system which is protected against interference and which is fair and transparent.
• Journalists have a right to protect their confidential sources of information.
• Systems for issuing press cards should not be used to control access to the profession, should be overseen by independent bodies and should be administered fairly.

CLD also drafted a Background Paper on these issues, available in English and in Arabic.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 997 1296
www.law-democracy.org
twitter: @law_democracy

Yesterday the European Investment Bank (EIB) formally adopted a revised transparency policy including controversial exceptions to the disclosure of internal documents. This watered down transparency policy comes right before the bank will start implementing the € 315 billion Juncker plan and risks undermining the impact of EU recovery efforts.

The new transparency policy has been met with strong criticism from civil society organisations [1] because it would allow the EIB to establish a new presumption of confidentiality to keep secret internal investigations into irregularities such as corruption and maladministration.

The exceptions also alarmed some of the Directors of the Bank (the Directors are representatives from the Member States who meet monthly to approve projects and the policies which guide the bank) who could not come to an agreement on the adoption of the final policy during their last meeting on 3 February 2015.

According to sources within the bank, it is the first time that there was no agreement on the adoption of a final policy proposed to the Board of Directors, illustrating how controversial this new policy is. During the public consultation process regarding the policy, the European Ombudsman’s representative also recommended against including the exceptions on internal documents.

Despite the controversy surrounding the new policy, the EIB decided not to take into account the concerns raised and only made a minor cosmetic change to the policy before adopting it yesterday.

Xavier Sol, Counter Balance Director, said: “Transparency is widely recognized as a precondition for good governance. The EIB’s new transparency policy comes right before the bank is expected to get Europe’s economy back on track by implementing the Juncker investment plan. The bank’s move towards secrecy might seriously undermine these efforts.”

Anna Roggenbuck from Bankwatch said: “The new policy casts serious doubts over the bank’s commitments to improve transparency and may further undermine its already bad reputation given its terrible rankings on the yearly published Aid Transparency Index [2]. A number of cases in the past have shown the bank is very reluctant to proactively disclose proactively information of public interest and only acts under external pressure such as from the European Ombudsman [3]. European citizens deserve a much more transparent and accountable public investment bank.”

Toby Mendel, Executive Director of the Centre for Law and Democracy, added: “It is most unfortunate that the Bank is moving backwards on this core democracy issue while other international financial institutions have been putting in place much stronger transparency policies. This is particularly ironic given the historic commitment of the European Union and its Member States to openness.”

Notes for editors:

[1] Read here about the critiques to the new transparency policy: http://www.counter-balance.org/eib-set-to-weaken-transparency-standards/
[2] Year after year the EIB scores very low when it comes to transparency. Last year it ranked second to last of all financial institutions on the Aid Transparency Index
[3] Read here about a recent case showing the bank reluctance to disclose crucial information: http://www.counter-balance.org/long-awaited-investigation-into-glencore-for-alleged-tax-dodging-shows-eu-banks-lack-of-transparency-and-vulnerability-to-abuse/

For more information contact:

Xavier sol, xavier.sol@counter-balance.org , +32 2 893 08 61
Anna Rogenbuck, annar@bankwatch.org
Toby Mendel, toby@law-democracy.org, _1 902 431-3688

In early 2014, Pakistan’s Ministry of Information Technology and Telecommunication introduced a draft cybercrime ordinance, the Prevention of Electronic Crimes Act. At the time, human rights advocates, including the Centre for Law and Democracy, criticised the draft as a threat to Pakistan’s burgeoning online community and cautioned that its broad language threatened to turn millions of ordinary Internet users into criminals. A slightly revised version (the draft) has now been tabled and we note with concern that few of the main problems have been fixed.

Click here for Comments on the 2014 version of the Prevention of Electronic Crimes Act
Click here to read the draft Prevention of Electronic Crimes Act, 2015

“It is troubling to see that Pakistan is considering adopting this law without having addressed many major concerns,” said Toby Mendel, Executive Director of CLD. “With its Internet community still developing, it is vitally important for Pakistan to craft legislation in this area which adequately respects human rights.”

There have been some positive changes, but these do not go nearly far enough. The rule that made it a criminal offence to create or supply any device that could be used for cybercrime now only applies to devices which are used primarily for committing offences. However, many types of legitimate software would still be covered since modifying user data to create an inauthentic result remains a criminal offence. This could criminalise programmes designed to facilitate online privacy, such as Tor, which functions by altering a user’s identifying information. The draft also makes it an offence to use a website or information system in ways which have not been authorised, effectively turning anyone who violates a website or programme’s terms of service, which are often very unclear, into a criminal. The draft also creates a new offence of harming the reputation of a woman online, essentially a criminal defamation provision.

These problems are compounded by the draft’s data retention requirement, mandating that electronic communication service providers store user data for 90 days. Parallel schemes have been found to be unconstitutional in several jurisdictions, most notably by the European Court of Justice, which held that European Union’s Data Retention Directive was incompatible with the privacy and data protection provisions of the Charter of Fundamental Rights of the European Union in April 2014.

The new draft is currently before a four-member committee of parliamentarians, who have been charged with reviewing and finalising its language. We urge the parliamentary committee to ensure that the provisions of this law are brought into line with international human rights standards before it is passed.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

A Submission by the Centre for Law and Democracy to the UN Special Rapporteur on Freedom of Opinion and Expression notes the importance of encryption and anonymity tools to online speech and sets out five key Principles which should guide future discussions on these issues. The Principles include a significant need for transparency around surveillance measures, robust procedural oversight over intelligence and surveillance authorities, controls on the export of advanced surveillance technology to repressive States and the need for surveillance activities to be limited and targeted and, in particular, to strike an appropriate balance between security needs and the rights to freedom of expression and privacy.

Click here to read the Submission

“We recognise that, in a digital world, digital surveillance is an important tool for law enforcement and intelligence authorities,” said CLD Executive Director Toby Mendel. “However, surveillance represents a restriction on freedom of expression and privacy and is therefore legitimate only where it meets strict tests of balance and proportionality.”

The Principles note that encryption and anonymity tools are necessary to protect the security of digital communications, which in turn is important to supporting the candour of speech. As with any restriction on freedom of expression, surveillance policies and practices must be assessed according to the three-part test for such restrictions found at Article 19(3) of the International Covenant on Civil and Political Rights.

The Submission was prepared in response to a call for input by the Special Rapporteur, who is drafting a Report on these issues to be presented to the Human Rights Council in June 2015.

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

The Human Rights Working Group of the International Council on Archives has prepared a set of draft Basic Principles on the Role of Archivists in Support of Human Rights. The draft Principles highlight the role Archivists can play in supporting human rights, as well as the conditions needed to allow them to do this. The Centre for Law and Democracy (CLD) has prepared a Note on the draft Principles with a view to making the final product as robust as possible.

“The preparation of these Principles is a great initiaitive by the International Council of Archives which will draw attention to the important role of archives and archivists in promoting respect for human rights,” said CLD Executive Director Toby Mendel. “We hope that our comments help hone the document so that it can be as effective as possible in achvieving its goals.”

Click here to read the Note
Click here to read the Draft Principles

Many of the recommendations in the CLD Note are technical in nature, and aim to introduce formal improvements into the draft Principles. The Note suggests that the main operative paragraph in the preamble be redrafted so as to address a wider range of stakeholders and calls for all of the substantive provisions to be presented as normative statements (which include the term ‘should’).

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 997 1296
www.law-democracy.org
twitter: @law_democracy

The Centre for Law and Democracy (CLD) and International Media Support (IMS) are launching a set of twelve Briefing Notes on key freedom of expression issues. The Notes focus on key themes – such as restrictions on freedom of expression, regulation of broadcasting, criminal content restrictions and digital rights – and aim to provide a comprehensive introduction to the subject.

Designed to be accessible to all audiences, including those with no experience or training in law, the Notes provide a summary of key standards which will also be useful to more advanced readers. Each Note also contains a section at the end on further resources, for readers who want to probe the subject more deeply. CLD and IMS have also produced a compilation report containing all twelve Notes along with an introduction and glossary.

Click here for the full Briefing Notes (in English)(in Burmese)

Click here for Note 1 on Freedom of Expression as a Human Right (in English)((in Burmese)
Click here for Note 2 on Restrictions on Freedom of Expression (in English)(in Burmese)
Click here for Note 3 on the Right to Information (in English)(in Burmese)
Click here for Note 4 on Independent Regulation of the Media (in English)(in Burmese)
Click here for Note 5 on Regulation of Journalists (in English)(in Burmese)
Click here for Note 6 on Print Media (in English)(in Burmese)
Click here for Note 7 on Broadcast Regulation (in English)(in Burmese)
Click here for Note 8 on Media Diversity (in English)(in Burmese)
Click here for Note 9 on Public Service Broadcasting (in English)(in Burmese)
Click here for Note 10 on Criminal Content Restrictions (in English)(in Burmese)
Click here for Note 11 on Civil Content Restrictions (in English)(in Burmese)
Click here for Note 12 on Digital Rights (in English)(in Burmese)

“The Notes will be useful to anyone who is interested in understanding the right to freedom of expression,” said Toby Mendel, Executive Director of CLD. “They provide a quick reference to the main international standards governing this right.”

The Notes were developed as part of CLD and IMS’ collaboration to support Myanmar’s democratic transition, with funding from the governments of Sweden, Denmark and Norway. They have been printed in English and in Burmese, and are being distributed in hard copy to government officials, journalists, civil society activists and other stakeholders around the country. They will also be printed in their full length in a serialised version in the national daily newspaper, New Light of Myanmar, starting on 1 February 2015.

“There is a strong demand in Myanmar for easy access to information on international standards related to freedom of expression, and in this compilation developed by experts from CLD you will find it all. It is accessible free of charge to those who hold an interest in these topics,” said Esben Harboe, Programme Manager for IMS’ work in Myanmar.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
twitter: @law_democracy
www.law-democracy.org

Esben Q. Harboe
Programme Manager
International Media Support
eh@i-m-s.dk
+45 5210 7805
twitter: @forfreemedia
www.i-m-s.dk

On 24 January 2015, the Centre for Law and Democracy (CLD) and the Myanmar Media Lawyers’ Network (MMLN), with the support of International Media Support (IMS), carried out a training on freedom of expression for 80 lawyers in Mandalay, Myanmar’s second largest city. The event introduced participants to international freedom of expression standards, focusing on issues that are of particular importance to Myanmar’s democratic transition, such as regulation of the print and broadcast media and criminal content restrictions.

In addition to an international perspective, the participants discussed specific freedom of expression threats facing Myanmar, including the need for reform of the country’s criminal defamation laws and laws prohibiting insults to religion, and the urgent need to put in place an independent system of broadcast regulation.

“It was wonderful to see the enthusiasm of the participants in applying their legal training to Myanmar’s freedom of expression challenges,” said CLD Executive Director Toby Mendel. “We are confident that lawyers in this city have a tremendous contribution to make in support of the country’s ongoing democratisation process.”

This was the first event held by the MMLN and CLD outside of Yangon, Myanmar’s capital. Its organisation was made possible through strong collaborative links with prominent lawyers in that city, notably U Thein Than Oo, who played a key facilitating role. Over forty of the attendees applied to join the MMLN and many expressed an interest in participating actively in the Network.

“As the media lawyer’s network continues to develop we are glad to see its reach expanding to Mandalay,” said Esben Harboe, Programme Manager at IMS. “We hope the Network will become a truly national vehicle to support reform of Myanmar’s legal framework around freedom of expression.”

For further information, please contact:

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
Email: michael@law-democracy.org
+1 902 448 5290
www.law-democracy.org
twitter: @law_democracy

Esben Q. Harboe
Programme Manager
International Media Support
eh@mediasupport.org
+45 5210 7805
www.mediasupport.org
twitter: @forfreemedia

Representatives of 80 different NGOs, from all regions of Myanmar, met in Yangon on Wednesday with the support of the Centre for Law and Democracy (CLD) and International Media Support (IMS) to discuss the importance of the right to information (RTI) to the country’s democratic transition. The workshop, which was organised by a working group of local NGOs, aimed to raise awareness among civil society about the importance of the right to information and what makes a strong RTI law.

“Civil society in Myanmar needs to have a good understanding of the key principles underlying the right to information so as to be able to engage effectively to promote a strong law,” said CLD Executive Director Toby Mendel. “The involvement of civil society in the development of such legislation is also central to its democratic credentials.”

The workshop’s 193 participants heard from international experts and local stakeholders about the benefits of the right to information and participants strongly endorsed the need to adopt such legislation in Myanmar. There was also agreement on the need to build a broad coalition to work on this issue, involving NGOs and media organisations, among others. There was, in particular, agreement that advocacy efforts will be more effective if civil society speaks with one voice.

“All stakeholders in Myanmar have an interest in the right to information being safeguarded. Citizen engagement and input into the process of formulating ways to ensure that government is open and transparent will be crucial, and this workshop was an important first step,” said Esben Harboe, Programme Manager, IMS.

The workshop was held as part of a broader discussion on Myanmar’s interest in joining the Open Government Partnership (OGP). Adoption of an RTI law is an essential step towards Myanmar’s eligibility to join the OGP.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 997 1296
www.law-democracy.org
twitter: @law_democracy

Esben Q. Harboe
Programme Manager
International Media Support
eh@mediasupport.org
+45 5210 7805
www.mediasupport.org
twitter: @forfreemedia

The Centre for Law and Democracy has filed an amicus curiae (friend of the court) brief in a constitutional appeal in Indonesia lodged by the Central Information Commission asserting that there are problems in its founding legislation in terms of the protection of its independence. While the members of the Commission have historically been independent of the public authorities they oversee, the Secretariat of the Commission is “operated by the government”, to use the very words of the legislation, Law No. 14 of 2008 on Public Information Disclosure.

Click here to read the Amicus Brief

“The Central Information Commission in Indonesia has done a great job in terms of promoting the right to information,” said CLD Executive Director Toby Mendel. “But its ability to operate truly independently is hampered by the fact that its Secretariat ultimately has loyalties to government.”

The Indonesian Central Information Commission filed a case before the Constitutional Court challenging Articles 29(2)-(5) of the Law on Public Information Disclosure last year. In addition to the statement quoted above, these provisions give the responsible Minister the power to appoint the person who oversees the Commission Secretariat. The Constitutional Court held a hearing on the matter on 13 January 2015.

The amicus curiae brief describes international standards relating to the independence of information oversight bodies and argues that these go beyond simply ensuring that the members of the governing board are independent and extends to the administrative structures of the body. To support this, the brief outlines the law and practice in this area in a number of countries, namely Canada, Mexico, Serbia and Sierra Leone.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 412 0872
www.law-democracy.org
Twitter: @law_democracy

An international delegation visiting Indonesia last week raised concerns about the current state of media freedom in the country, calling on the Widodo administration to take a new approach towards freedom of expression. Criminalisation of online speech, a climate of impunity for attacks against journalists, the concentration of media ownership among five moguls and the politicisation of media outlets are all current areas of concern.

Click here for the full text of the Observations and Recommendations of the International Partnership Mission to Indonesia

“This is a window of opportunity for the new Widodo administration to consolidate the position of Indonesia as a regional leader on freedom of expression. The time for action is now”, the mission said. “Important gains have been made in terms of media freedom but there are major issues that will continue to hold the country back if not given due priority”.

The mission met with journalists and freedom of expression groups in Jakarta and Bali as well as Indonesia’s Minister of Communications and Technology, Rudiantara. While the Minister expressed a commitment to continue the public dialogue on broadcast regulatory reform, he indicated that state-sponsored filtering of Indonesia’s internet would continue.

Journalists from across the country reported continued acts of intimidation, threats and killings by both state and non-state actors, such as police, religious hardliners, and organised violent groups, described as “thugs”, which are affiliated with political and business interests. This puts enormous pressure on journalists to self-censor.

The successful prosecution in the 2009 murder of Anak Agung Prabangsa, while welcome, is unfortunately an exception to the ongoing culture of impunity in the country. Many cases remain unsolved, notably the 1996 murder of Fuad Muhammad Syafruddin, known as “Udin”.

“The failure to hold Udin’s murderers to account, nearly twenty years on, continues to cast a pall over Indonesia’s justice system”, the mission said. “We urge President Widodo to renew efforts to find the killers”.

Authorities also deliberately obstruct international journalists’ access to sensitive regions through an opaque and overly bureaucratic process of applying for visas. In the rare instances where access is granted, journalists are accompanied by government and security officials.

Several elements in Indonesia’s regulatory framework also fall foul of international human rights standards, such as the Electronic Information and Transactions (ITE) Law and oversight of the broadcasting sector. Political domination of media outlets, which undermines editorial independence, is also a cause for concern.

For further information, please contact:

Lars H. Bestle
Head of Department for Asia
International Media Support (IMS)
lb@mediasupport.org
+45 3841 7031

Kulachada Chaipipat
Campaign Manager
Southeast Asian Press Alliance (SEAPA)
kcchacha@gmail.com
+66 2 2435579
www.seapa.org

Sumit Galhotra
Asia Research Associate
Committee to Protect Journalists
sgalhotra@cpj.org
+1.212.465.1004 (ext. 115)
@CPJAsia

Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
www.law-democracy.org
@Law_democracy

Karin Deutsch Karlekar
Project Director
Freedom House
karlekar@freedomhouse.org
+1 (212) 514-8040
www.freedomhouse.org
@karinkarlekar

Edward Pittman
Program Coordinator
Open Society Foundations
edward.pittman@opensocietyfoundations.org
www.opensocietyfoundations.org

Suwarjono
Chairman
The Alliance of Independent Journalists
sekretariatnya_aji@yahoo.com; sekretariat@aji.or.id
aji.or.id
@ajiindo

Judy Taing
Senior Programme Officer, Asia
Article 19
judy@article19.org
+1 (646) 725 1444
www.article19.org

Jane Worthington
Acting Director
International Federation of Journalists (IFJ), Asia Pacific
ifj@ifj-asia.org
+61 2 9333 0946
www.ifj.org/regions/asia-pacific/
@ifjasiapacific

On 12 November, representatives from a dozen NGOs met for a workshop in Yangon on the right to information (RTI) in Myanmar. The workshop, which was hosted by the Local Resource Centre and the Centre for Law and Democracy in collaboration with International Media Support, culminated in a joint Statement stressing the importance of RTI to Myanmar’s democratic transition and pledging to work collaboratively towards establishing and implementing an RTI law.

Click here to read the RTI Statement in English and Burmese

“The right to information is of fundamental importance to Myanmar’s democratic transition,” said Toby Mendel, Executive Director of CLD. “It is very encouraging that so many NGOs are engaging on this issue and we look forward to working with them to advance this worthy goal.”

“In this vital period, it is critical that Myanmar keeps moving forward towards better governance and human rights,” said Nyi Nyi Aung, Programme Director at Local Resource Centre. “We believe than an effective right to information is key to this.” .

“Myanmar’s government should be given credit for driving forward an ambitious media reform process, in which establishing an effective legal framework for transparency in the area of RTI would be a natural next step,” said Esben Harboe, Programme Manager for IMS’ work in Myanmar.

In addition to noting the many benefits of RTI, the Workshop Statement stresses that the advancement of this right must be achieved through collaborative efforts involving civil society, journalists and the government. To that end, the participants agreed to continue to work together to promote progress in this area.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
michael@law-democracy.org
+1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

Nyi Nyi Aung
Programme Director
Information and Communication
Local Resource Centre
info-co@lrcmyanmar.org
+95 09 540 2565
www.lrcmyanmar.org

Esben Q. Harboe
Programme Manager
International Media Support
eh@i-m-s.dk
+45 5210 7805
www.i-m-s.dk

The Centre for Law and Democracy has sent a letter to His Excellency President Abdulla Yameen Abdul Gayoom of the Maldives calling on his government to do more to fulfil its obligation to protect journalists and the media. The immediate focus of the letter is the disappearance of journalist Ahmed Rilwan, missing since 8 August in an apparent abduction related to his work as a journalist. Prior to his abduction, Mr. Rilwan received multiple death threats, which were reported to the Maldives Police Service (MPS).

Click here for the Letter

“Mr. Rilwan’s disappearance fits into a broader pattern of violence and intimidation directed towards the media,” said CLD Executive Director Toby Mendel. “The Maldives is clearly falling short of its international law obligation to create an environment in which the media can do its job of informing the public effectively and free of fear of attacks.”

The media and journalists in the Maldives have been subject to numerous assaults, and there have been vandalism attacks on two television stations and arson attacks on two more. Freedom of expression, as guaranteed under international law, places a positive obligation on States to take appropriate measures to prevent such attacks, to provide protection as needed, and to ensure effective investigations when attacks do occur.

CLD calls on the Government of the Maldives to do everything within its power to rescue Mr. Rilwan, to take effective steps to protect the media and to bring the perpetrators of crimes against journalists and the media to justice.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

Sweden passed the world’s first access to information law in 1766 but it took nearly two hundred years for the next law to be adopted, by Finland in 1951. The pace has picked up a bit since then, and this month the world celebrated a milestone, as Paraguay’s Law for Citizens’ Free Access to Public Information and Government Transparency became the world’s one hundredth right to information (RTI) law. Fully eighty-three of those laws were enacted in the past two decades. Over the same time period, the right of individuals to access information held by government has been recognised as an international human right and it has gone from a somewhat novel public service reform to being one of the cornerstones of effective and accountable government. Today, no government which does not provide for a robust right to information can credibly claim to be open and democratic.

One hundred RTI laws is a momentous achievement but, amidst the celebrations, we must bear in mind that this represents only about half of the world’s countries. Although the vast majority of the world’s population, around four-fifths, now lives in a country that has an RTI law on the books, the list of countries which have not yet passed right to information laws includes many large and influential States, such as Egypt, Myanmar and the Democratic Republic of Congo. The list of non-adopters also includes a number of relatively stable democracies, such as Costa Rica, Kenya, the Philippines and Cyprus. Moreover, the prevalence of RTI legislation varies widely from region to region. While RTI laws are almost ubiquitous across Europe and relatively prevalent in the Americas, only three of the Arab league’s 22 member States have passed RTI laws.

Furthermore, not all laws are created equal. The RTI Rating Methodology, a comparative analysis of legal frameworks for RTI developed by the Centre for Law and Democracy (CLD) and Access Info Europe (AIE) based on international standards, has been applied to all 100 laws. Out of a possible maximum of 150 points, the world’s right to information laws scored an average of just 86.5 points, or 58%. In other words, the average RTI law still lacks nearly one half of the hallmarks of an ideal legal framework.

Significantly, many of the world’s weaker RTI laws are found in developed democracies. Not a single one of the top twenty countries on the RTI Rating are developed democracies, while five of the bottom ten countries are in Western Europe. This is partly because many of the early RTI laws have not been updated to take into account advances over the past decades. However, it may also be partly because citizens of countries with long histories of democracy and stability are less vigilant about insisting on the right to information than those from countries with a recent experience of dictatorship, who have seen firsthand the abuses that an unchecked and unaccountable government can perpetrate. This is unfortunate; although corruption and official mismanagement tend to be more pervasive in the developing world they are certainly not unique to those regions, and the right to information remains critically important in established democracies. If the 2013 Internet surveillance disclosures have taught us anything, it is that governments in vibrant, healthy democracies are quite capable of carrying out flagrant abuses if their power is left unchecked.

Beyond weak legislation, poor implementation remains a problem that cuts across RTI systems in both the developed and developing world. A feeling of euphoria almost inevitably follows the difficult struggle to get governments to adopt RTI legislation. But the legislative process represents the beginning, rather than the end, of the struggle for openness. Some of the strongest RTI laws only exist on paper. Ethiopia, in 12th place globally with 114 points on the RTI Rating, has done nearly nothing to implement its law, while Yemen passed a robust RTI law but has completely refused to fund the main oversight institution, namely the Information Commissioner-General.

While implementation challenges can be more acute in the developing world, the problem is certainly not limited to emerging democracies. Indeed, the massive cultural shift that is engendered by the transition from the secretive exercise of power to open democracy is almost universal. The open data movement, for all its undeniable benefits to expanding transparency, can also present a challenge to RTI as governments try to present this as a replacement, rather than a complement, to RTI.

In other words, while the milestone of 100 laws is most certainly something to be celebrated, around the world there are still serious challenges regarding the right to information, and resistance from many powerful quarters. Although challenges lie ahead, the RTI community has demonstrated time and again that it is ready to face them. Indeed, the most important development of the past two decades has not been the passage of eighty-three RTI laws. Rather, the most important development has been the engine which has driven these advances: the robust, energetic network of civil society activists that has risen up as champions of the right to information. The RTI movement’s greatest resource is its people, the seemingly endless supply of talented and driven advocates that have sprung up across the developing world to push for the recognition, acceptance and implementation of this vital human right.

We are proud and pleased to have worked with all of you through these exciting times. Here’s to a hundred RTI laws. We look forward to working with all of you through the next hundred.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
twitter: @law_democracy

A coalition of eighteen civil society organisations, including the Centre for Law and Democracy (CLD), has submitted an analysis and set of recommendations to the European Investment Bank (EIB) on its draft revised EIB Group Transparency Policy. The proposed changes would substantially undermine openness at the EIB, among other things by limiting the scope of the Policy to information relating to the EIB’s “administrative tasks” and by expanding the scope of exceptions.

Click here to read the Joint Submission
Click here to read the draft revised Transparency Policy

“If these changes are pushed through, the EIB will go from having one of the stronger openness policies among international financial institutions (IFIs) to having a much weaker one,” said Toby Mendel, Executive Director of CLD. “This is unfortunate and signals that the EIB is heading in the opposite direction from most other IFIs.”

Some of the problems with the draft Policy identified in the joint submission include the following:
• failing to ground the Policy in the human right to access information held by public authorities;
• granting member States the power to veto the disclosure of information originating from them;
• adding in a broad exception for internal documents;
• weakening the provisions on the public interest override to exceptions;
• failing to place enhanced disclosure obligations on financial intermediaries; and
• replacing the fixed time period for future formal reviews with a vague provision mandating review only in case of changes.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy

The Centre for Law and Democracy (CLD) has responded to the consultation on Canada’s second Open Government Partnership (OGP) Action Plan by calling on the government to commit to clear and ambitious measures to advance transparency across the public sector. CLD’s Submission to Canada’s Open Government Consultations points to problems with both the consultation process and the substantive commitments the government is proposing to make. CLD’s main criticism is that the government is still refusing to amend Canada’s sorely outdated Access to Information Act, despite universal recognition among users that the system is broken.

Click here to read the CLD Submission

“Canada is in 56th place globally out of 98 countries with access to information laws and tinkering with administrative measures, as the government is proposing to do, is just not acceptable,” said Toby Mendel, Executive Director of CLD. “The people of Canada have a constitutionally protected right to information, which our legal framework fails to respect.”

The CLD Submission also proposes several new ideas for inclusion in the Action Plan. These include the establishment of a registry of beneficial owners of Canadian companies, something which has already been included in the US Plan, mandatory disclosure of all public contracts over $5,000, allowing Canada’s scientists and officials to speak freely with the public, adopting minimum standards for consultation, and a process of review and reform of the system for classifying documents.

The Submission also notes weaknesses in the consultation process around the new Action Plan, while recognising that it has been much improved since the first consultation. A key problem has been confusion around the schedule and a failure to communicate the process clearly. In addition, the process has been unduly controlled, limiting the ability of participants to engage openly. Outreach efforts have also been limited, resulting in low levels of participation, particularly among civil society.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @Law_Democracy

CLD today released an Analysis of the draft Kenyan Freedom of Information Bill, 2014, which found that, although the draft is relatively robust, it is significantly weaker than the version which was proposed in 2012. The biggest change is the decision to scrap the dedicated oversight body, the Freedom of Information and Data Protection Commission, and instead delegate oversight responsibilities to the Commission on Administrative Justice.

Click here to read the Analysis
Click here to read the draft Freedom of Information Bill, 2014
Click here for the RTI Rating Scoresheet

“For a country the size of Kenya, a dedicated information oversight body is absolutely critical to successful implementation of the right to information,” said Toby Mendel, Executive Director of CLD. “It is high time for Kenya to adopt a right to information law, but we want that law to be as strong as possible.”

The Analysis was based on the RTI Rating (www.RTI-Rating.org), according to which the new law scores 105 points out of a possible 150, placing it in a tie for 20th position globally from among the 98 laws from countries around the world which have been rated. This is a good score but the 2012 draft scored 114 points, which would have put Kenya in 11th place globally.

Another troubling change is the fact that the 2014 draft does not contain a section stating that its provisions prevail over those in other legislation to the extent of any conflict. This would leave in place the pre-existing, overbroad secrecy regime, including the Official Secrets Act.

Many of the other problems noted in the Analysis are relatively minor, however, and could easily be corrected through small drafting changes. CLD urges the relevant stakeholders in Kenya to act quickly to strengthen, and then formally adopt, the Kenyan Freedom of Information Bill, 2014.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @Law_Democracy

CLD has issued a letter to MPs in the Democratic Republic of Congo (DRC) urging speedy passage of the proposed Law on Access to Information (Loi sur l’accès à l’information). Although the right to information is protected under DRC’s 2006 constitution, this law would for the first time give practical effect to that guarantee.

Click here to read the Letter

CLD welcomes the draft Law’s positive features, such as its wide scope of application and user-friendly procedural rules. However, the proposed law is far from perfect. The regime of exceptions, found in Articles 2 and 5-11 of the draft Law, should be drafted more clearly and narrowly, so as to avoid the risk of public bodies using flexible exceptions to deny access to information which is not senstive. CLD also notes that the law lacks a proper oversight mechanism, which is critical to ensuring the proper implementation of the right to information in the DRC.

“Despite these shortcomings, we see the law as an important opportunity for the DRC to move forward in terms of respect for human rights and to strengthen democratic accountability for its people,” said Toby Mendel, Executive Director of CLD. “We urge the government to act without delay and ensure the speedy passage of the Law on Access to Information.”

CLD’s letter also notes that Africa remains one of the world’s weaker performing regions in terms of right to information legislation, but that is beginning to change. Over the past five years, the number of African right to information laws has more than quadrupled. CLD hopes that the DRC will continue this positive trend towards greater openness and transparency across the continent.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 997-1296
www.law-democracy.org
Twitter: @law_democracy

CLD has prepared an analysis of the latest version of Morocco’s draft right to information (RTI) law, Draft Law No. 31.13 on the Right of Access to Information. An assessment of the draft Law using the RTI Rating assessment tool (www.RTI-Rating.org) shows that the draft is substantially weaker than the draft published in August 2013. Specifically, the current draft scores only 65 points out of a possible 150, putting it in the bottom 20 percent of all countries (83rd place out of 98), compared to 100 points or 27th place for the 2013 draft.

Click here to read the Analysis

“We welcome the Government of Morocco’s efforts to adopt right to information legislation,” said Toby Mendel, Executive Director of CLD. “But the current draft is simply not strong enough to provide effective access to information for the people of Morocco.”

CLD believes that the draft was substantially weakened during a process of inter-ministerial consultation within government. It is important that an RTI law protect legitimate secrecy interests and avoid placing impossible burdens on the public service, but this had already been achieved in the August 2013 draft. Morocco hopes to become eligible to join the Open Government Partnership with this law, but it is unclear whether it would be accepted for that purpose.

The current draft is substantially weaker than the 2013 draft in many areas, including scope of application, procedural rules, the regime of exceptions and promotional measures. Significantly, the proposal to establish a dedicated oversight body, in the form of a national information commission, has been dropped with this function instead being added to the work of the ombudsman.

CLD urges the Government of Morocco to reconsider the current draft and, instead, to prepare a strong law which will properly implement Article 27 of the 2011 Constitution, guaranteeing the right to information, and provide the people of Morocco with an effective system for accessing information held by public authorities.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +1 902 997-1296
www.law-democracy.org
Twitter: @law_democracy

The Centre for Law and Democracy (CLD) and Global Partners Digital are launching a new publication, Travel Guide to the Digital World: Surveillance and International Standards, aimed at helping Internet users understand digital surveillance and its human rights implications. The report, part of the Travel Guide to the Digital World series, is designed to be broadly accessible and is written for a non-technical audience. It aims to provide readers with an understanding of how surveillance is being conducting, relevant international standards and better national practice, and emerging debates around surveillance.

Click here to read the Guide

“In the context of the Snowden revelations, it is abundantly clear that many governments are operating surveillance regimes which breach international human rights law,” said Toby Mendel, Executive Director of CLD. “This publication will help readers understand why these surveillance practices are problematical and how they should be improved.”

The report reviews digital surveillance practices from the perspective of international human rights standards, particularly freedom of expression and the right to privacy. Drawing on international standards and better practice legislation from around the world, the report presents a set of standards for regulating and conducting surveillance in a way which is consistent with human rights. It concludes with a discussion of emerging debates, and how the questions around online surveillance have altered the global discourse around human rights on the Internet.

“The Internet is the defining technology of our age, and internet policy and governance decisions have a real impact on human rights,” said Andrew Puddephatt, Executive Director of Global Partners Digital. “The Travel Guide to the Digital World series aims to arm a new generation of activists to fight for internet rights and freedoms”.

For further information, please contact:

Michael Karanicolas
Legal Officer
Centre for Law and Democracy
email: michael@law-democracy.org
tel: +1 902 448-5290
www.law-democracy.org
Twitter: @law_democracy