Centre for Law and Democracy

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

Yesterday, Michael Karanicolas testified on behalf of the Centre for Law and Democracy (CLD) before an independent panel reviewing Newfoundland and Labrador’s Access to Information and Protection of Privacy Act (ATIPPA), presenting CLD’s formal Submission to the review. Premier Marshall has stated that he wants an access law which would “rank among the best” internationally. CLD noted that this would require root and branch reform of the law, outlining the changes to ATIPPA that would be required if Newfoundland wishes to be a global leader in transparency.

Click here to read CLD’s full Submission
Click here to read ATIPPA

“We appreciate having had the opportunity to provide inputs to the review panel,” said Toby Mendel, Executive Director of CLD. “However, the real question is whether the panel and then government are prepared to move forward with the major reforms that would be required to implement Marshall’s promises.”

CLD’s main recommendations are regarding needed reforms of the regime of exceptions, which is currently very overbroad, including by unnecessarily classifying enormous amounts of deliberative information. This problem is compounded by the fact that the Information and Privacy Commissioner lacks the power to review some of these exceptions. Other problems include the following:
• The Commissioner does not have binding order power and can only make recommendations.
• The absence of clear maximum timelines for responding to requests.
• Charging a fee simply for filing an access to information request, as well as for employee time spent responding to a request.

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

UPDATE – August 2014: The B.C. Freedom of Information and Privacy Association (FIPA) has also made a submission to the independent review panel, in which they wholly endorse CLD’s recommendations.
Click here to read FIPA’s Submission

Earlier this week a group of lawyers in Myanmar with an interest in media law came to an important decision: to form the Myanmar Media Lawyers’ Network. The decision was made at a workshop for media lawyers, the third such meeting facilitated by the Centre for Law and Democracy (CLD) and International Media Support (IMS), as part of their capacity building work in Myanmar. The 30 lawyers who attended the meeting were unanimous in their interest in and enthusiasm for the idea.

“We are extremely pleased that lawyers in Myanmar will have a dedicated network focusing on media law issues,” said Toby Mendel, Executive Director of CLD. “We hope the network will serve as a focal point for building the capacity of its members and creating a core of media law experts.”

“In our experience from other parts of the world, networks such as this ensure that the lawyers can benefit from one another’s skills and experience and use this knowledge to provide the best possible support to media practitioners in need of legal advice,” said Esben Harboe, Programme Manager for IMS’ work in Myanmar.

CLD prepared a background paper for the workshop that reviewed how different lawyers’ associations around the world approached questions such as their mandates, governing structures, membership and funding. These were discussed during the workshop, including in small group sessions, and consensus was reached on many issues. The participants decided that the Network will carry out a range of activities with a view to building the knowledge and expertise of its members, providing policy insight on key freedom of expression issues and intervening in important freedom of expression debates in the country. Lawyers’ associations in many countries have been a force for the promotion and protection of human rights and democratic values.

Click here to read the background paper

To take this work forward, participants chose a six-member steering committee and gave them a mandate to prepare draft constitutional documents for the Network and to plan activities. The participants also made a joint commitment to expand membership to include other lawyers with an interest in these issues.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
toby@law-democracy.org
+1 902 431-3688
www.law-democracy.org

The Centre for Law and Democracy (CLD) and Lawyers’ Rights Watch Canada (LRWC) have sent a letter to Bangladesh’s Prime Minister, the Honourable Sheikh Hasina, urging her government to reconsider passage of the proposed Foreign Donations (Voluntary Activities) Regulation Act, 2014 (the Bill). The Bill would grant the NGO Affairs Bureau, a department under the Prime Minister’s Office, extensive powers over NGOs, including a veto over their ability to receive foreign contributions of any kind. The law would also put in place an onerous registration system and given the NGO Affairs Bureau the power to forcibly dissolve non-compliant NGOs.

Click here to read the Letter
Click here to read the translation of the Draft Act

“The Bill signally fails to respect international standards on freedom of association,” said Toby Mendel, Executive Director of CLD. “Its substantive provisions cannot be justified and it fails to respect the need to provide for independent oversight. We urge the government of Bangladesh to fundamentally reconsider its approach to this issue.”

International human rights norms relating to freedom of association include the right to seek and secure funding internationally. Moreover, where there is a need for regulatory functions to be done, they should be carried out by an independent body rather than one which operates under the Prime Minister’s Office. The proposed law was approved by Cabinet on 2 June 2014 and is currently before Parliament.

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

On 6 June 2014, the United Nations Environment Programme (UNEP) adopted its first ever Access-to-Information Policy, giving individuals a right to access the information it holds. The event was unimpressive not only for its tardiness – the World Bank adopted its first access to information policy in 1994 – but also for the surprisingly weak guarantees in the Policy. The latter not only fail to live up to international standards and better practice by other inter-governmental organisations (IGOs), but also the very standards which UNEP has recommended to States in this area in its Guidelines for Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (the Bali Guidelines). CLD has written to Achim Steiner, UNEP Executive Director, calling on UNEP to do better when the current Policy, which has a one-year shelf life, is replaced.

Click here to read the Letter

“To say we were disappointed with the Policy, especially coming from an environmental agency which should understand the value of transparency, is putting it mildly,” said CLD Executive Director, Toby Mendel. “Frankly, the hypocrisy of UNEP recommending strong standards for States, which we support, and then adopting such a poor policy itself is hard to understand.”

A serious problem with the Policy is its vastly overbroad regime of exceptions. The exceptions are almost schizophrenic in nature, with model statements of exceptions being undermined by vastly overbroad statements. The Policy grants third parties a veto over the disclosure not only of information provided by them but also provided to them with an expectation of confidentiality, so that any document UNEP shares which is marked confidential could be covered by the exceptions. Other unfortunate wording in the exceptions would render secret any communication which contained a “report” or which related “to the exchange of ideas”.

The Policy also fails to establish an independent appeals mechanism, in contrast to the approach taken in better practice policies adopted recently by other IGOs, including the World Bank, the Asian Development Bank and the Inter-American Bank.

CLD urges UNEP to take advantage of the year before this Policy expires to conduct widespread consultations with a view to developing a much stronger right to information policy.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +977 984 1714936
www.law-democracy.org
Twitter: @law_democracy

In East Timor, as in many States emerging from long periods of undemocratic rule, unprofessional reporting by journalists is a widespread problem. A Media Law adopted in May of this year by the National Assembly, which is currently awaiting Presidential signature, was justified in part as being necessary to address this problem. Comments on the Law published today by the Centre for Law and Democracy (CLD) reveal serious problems in terms both of human rights and of the stated goals of the law.

Click here to read the Comments
Click here to read a translation of the Media Law

“The Media Law has some positive features, such as explicit protection for freedom of speech and prohibitions on censorship,” said CLD Executive Director, Toby Mendel. “However, the main regulatory systems it establishes not only represent serious breaches of the right to freedom of expression but, as experience in other countries has amply demonstrated, will do little to improve professionalism.”

The most serious problem with the law is the licensing regime it imposes on individual journalists, which includes setting conditions on who may be a journalist, requiring aspirant journalists to undergo onerous internships, giving the Press Council the power to license journalists and forbidding newspapers from hiring anyone who has not been approved by the Council. This is a clear breach of the right to freedom of expression, pursuant to which everyone has the right to practise journalism, which is a human right.

The Comments also note that there have been moves in recent years to establish a self-regulatory system for the media in East Timor and that such systems, where they are effective, are preferable to statutory systems.

Some of the other key problems noted in the Comments are:
• The Law defines media broadly to cover bloggers and even advertisers.
• The Law imposes vague and illegitimate obligations on journalists, such as to contribute to a democratic society and to exercise their profession independently.
• The rules relating to the Code of Conduct are very general, and fail to specify what sorts of provisions should go in the Code or what the penalty for breach will be.
• More could be done to promote the independence of the Press Council.

CLD urges East Timor’s President to consider these problems before signing the Media Law.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Tel: +977 984 1714936
www.law-democracy.org
Twitter: @law_democracy

The Centre for Law and Democracy notes with concern continuing moves by the Hungarian government to restrict the ability of NGOs to operate and to receive funding, including from foreign sources. The actions of the government, which include apparently politically motivated audits of organisations which disburse Norwegian funding, are a clear breach of the right to freedom of association as guaranteed under international law.

“A vibrant civil society sector is vital to the maintenance of a healthy democratic system,” said Toby Mendel, Executive Director of CLD. “This is the latest in a long series of human rights abusive measures by the Hungarian government, which collectively have had a serious impact on democracy there.”

The Hungarian government recently launched a full-scale investigation into Norwegian funding of NGOs, including audits against three of the four Hungarian organisations which disperse Norway’s grants. One of the organisations was given a week’s notice of the audit, while the other two were given no notice at all. For those NGOs, government officials appeared unannounced, demanding access to a range of documents related to the grantmaking process, including internal emails and lists of recipients and applicants. If they refuse to cooperate, the NGOs face fines and the potential suspension of their tax registration number, effectively paralysing them. Under an agreement between Norway and the European Union, which is legally binding on Hungary, the Norwegian government maintains responsibility for auditing these funds. A public audit by the Norwegian government had been scheduled for the fall of 2014.

Earlier, in May, the state secretary at Hungarian Prime Minister Viktor Orbán’s office published a list of thirteen NGOs which it claimed were problematic for having “leftist political ties”. The list includes some of the country’s most respected human rights organisations, including the Hungarian Civil Liberties Union, Transparency International and NANE, a leading women’s rights group.

Hungary’s actions are a breach of the right to freedom of association, which includes the right to seek and obtain funding, including from foreign sources.[1] The Special Rapporteur on the rights to freedom of peaceful assembly and of association noted in a 2012 report:

Any associations, both registered or unregistered, should have the right to seek and secure funding and resources from domestic, foreign, and international entities, including individuals, businesses, civil society organizations, Governments and international organizations.[2]

The Special Representative of the Secretary-General on the situation of human rights defenders has supported that position, stating: “[G]overnments must allow access by NGOs to foreign funding as a part of international cooperation, to which civil society is entitled to the same extent as Governments”.[3]

The fact that the Prime Minister’s office is making allegations of political bias against respected Hungarian human rights organisations is also a matter of concern. This is a tactic that is often used by governments who wish to deflect legitimate criticism of their actions, which appears to be the case here. In Hungary, NGOs with Public Benefit Organisation (PBO) status are tax exempt and are also barred from engaging in “direct political activity”. Any genuine concerns about political engagement on the part of PBO status NGOs should be addressed through an investigation by an independent body on the basis of objective and fair criteria, rather than allegations by senior political figures. The Special Rapporteur has noted that any oversight of NGOs should be carried out by an independent body and that “such a procedure should not be arbitrary and must respect the principle of non-discrimination.”[4] The Special Rapporteur has further noted that oversight bodies should not be entitled to demand access to NGO premises without advance notice.

The Hungarian government’s moves to disrupt the funding of organisations which it alleges to be “leftist” seem to be aimed at exerting a chilling effect on the willingness of NGOs to speak out to defend democracy, which is a core function of NGOs. The Centre for Law and Democracy calls on the Hungarian Government to stop its harassment of civil society and to respect the right to freedom of association. Specifically, Hungarian NGOs and civil society at large should be free to receive funding from foreign donors and any public auditing measures should respect the principles of independence, non-discrimination and non-arbitrariness.

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

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1. This right is guaranteed in Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the European Convention on Human Rights, both of which Hungary has ratified.
2. A/HRC/20/27, 21 May 2012. Available at: www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-27_en.pdf.
3. A/59/401, 1 October 2004. Available at: www.refworld.org/pdfid/4267bfd84.pdf.
4. Note 2.

Centre for Law and Democracy notes with concern that Pierre-Claver Mbonimpa, a prominent human rights defender, has been detained by the Burundian government. Mr. Mbonimpa has been charged with spreading false rumours to incite the population to rise up against the authorities, threatening external security and forgery. The charges stem from a radio broadcast in which Mr. Mbonimpa participated on 6 May, and in which he stated that members of the Imbonerakure, the youth wing of Burundi’s ruling party, the National Council for the Defense of Democracy – Forces for the Defense of Democracy (CNDD-FDD), are receiving arms and military training in the Democratic Republic of Congo. It is worth noting that Mr. Mbonimpa has offered photographic evidence in support of these allegations, and that Parfait Onanga-Anyanga, UN Secretary- General Ban Ki-moon’s Special Representative and Head of the United Nations Office in Burundi, warned the UN Security Council on 14 May that there was a risk of violence between politically-affiliated youth groups in the upcoming elections in Burundi.

According to Principle 46 of the Global Principles on National Security and the Right to Information (Tshwane Principles), the leading international statement on freedom of expression and national security, speech deemed harmful to national security should only be penalised if: a) the person’s intent was to harm national security; and b) the disclosure poses a real and identifiable risk of causing significant harm. Mr. Mbonimpa’s detention clearly fails this test. He did not act with intent and, far from being harmful to national security, his statements seek to protect Burundi’s security by avoiding bloodshed in the upcoming elections.

In the opinion of CLD, Mr. Mbonimpa’s arrest, prosecution and continued detention violate international human rights law and in particular Article 19 of the International Covenant on Civil and Political Rights, which Burundi ratified on 9 May 1990. CLD has now authored a letter calling on the government of Burundi to release Mr. Mbonimpa and to drop all charges against him. CLD further calls on the Burundian government to fulfil its obligations under international human rights law, as well as Burundi’s own constitution, and guarantee that Mr. Mbonimpa, along with all human rights defenders, are allowed to operate freely in Burundi.

Click here to read the Letter in English
Click here to read the Letter in French

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