Centre for Law and Democracy

Centre for Law and Democracy (CLD), the International Federation of Journalists (IFJ) and Lawyers’ Rights Watch Canada (LWRC) are pleased to note that Mam Sonando, a Cambodian broadcaster who had been detained for exercising his right to freedom of expression, has been released. He was released only after spending eight months in prison.

At an Appeal Court hearing on 14 March 2013, at the prosecutor’s request, the more serious charges against Mam Sonando, namely insurrection and incitement to take up arms against the State, were dropped, while charges of obstruction of officials and unlawful interference in the discharge of public functions were maintained, and a charge of and occupation of forestry land was added. The Appeal Court cut his sentence to five years, suspended the remainder of his sentence, but placed him on probation for three years. The probation may place Mam Sonando at heightened risk of further arbitrary detentions for peacefully exercising his right to freedom of expression.

We believe that the charges against Mam Sonando were politically motivated and unsubstantiated, as we made clear in a letter to His Excellency, Prime Minister Hun Sen on 5 October 2012 (available at: http://www.law-democracy.org/live/media/letters/).

Mam Sonando is the owner of one of Cambodia’s few independent radio stations and has been a prominent critic of the Cambodian government. His arrest was announced last July, the day after he appeared at the International Criminal Court to make a presentation to the Office of the Prosecutor on behalf of the Khmer People Power Movement on alleged crimes against humanity by the Cambodian government. Mam Sonando had been arrested twice before on spurious, politically motivated charges, both times after publicly criticising the Cambodian government.

We call on the Government of Cambodia to request that Mam Sonando be pardoned in relation to all charges. We also call on the government to respect the right of everyone, including those who criticise government, to freedom of expression.

In February 2013, the Centre for Law and Democracy was contacted by the Canadian Press regarding a Memorandum from the Treasury Board disputing CLD’s RTI-Rating of Canada. The Memo makes two key points in defence of Canada’s performance on RTI. The first is that the RTI Rating only measures the letter of the law and not the strength of its implementation and the second is that, notwithstanding problems in the legal framework, Canada’s overall commitment to openness, and to open data in particular, is strong. CLD Executive Director, Toby Mendel, responds to both points and calls for Root and Branch reform of the Canadian Access to Information Act, along with major shifts in official attitudes towards openness.

Click here to read the Letter

“CLD welcomes Canada’s commitment to transparency as demonstrated through its strong proactive disclosure policies and membership in the Open Government Partnership (OGP). However, this has no bearing on the serious structural deficiencies at the heart of Canada’s right to information framework, which is what the RTI Rating exposes”, writes CLD Executive Toby Mendel. “If the Government of Canada were to put in place a process to reform the ATIA, CLD would be more than happy to participate in and support this. Only in this way could we return Canada to a position in the global rankings that is becoming of a democracy of its stature.”

The authorities in Myanmar are drafting three pieces of media legislation as part of the process of transition to democracy: a print law (currently being prepared by the Interim Press Council); a broadcasting law (currently being prepared by Myanmar Radio and Television, MRTV); and a public service media law (currently being prepared by the Ministry of Information, MoI). Over the last week, the Centre for Law and Democracy (CLD) and Mizzima Media jointly hosted three workshops for different stakeholders – the media, civil society, political parties and members of parliament – to discuss international standards relating to freedom of expression and principles on media regulation.

“The huge interest in these workshops shows that different stakeholders in Myanmar appreciate the important role of freedom of expression and a free media in a democracy,” said Toby Mendel, Executive Director of CLD. “I was particularly impressed that over 40 parliamentarians attended the workshop in Nay Pyi Taw, most of whom stayed for the whole day.”

The workshops are part of a broader programme of providing support for the development of democratic media legislation, which CLD has been undertaking jointly with International Media Support (IMS), and which has involved workshops, technical advice meetings and written submissions on the three laws and related issues (such as the constitutional guarantees for freedom of expression and the draft code of ethics being prepared by the Press Council).

“Raising awareness about democratic systems of media regulation is a crucial part of the transition process”, said Thin Thin Aung, Director, Training and Education, Mizzima Media. “Without such understanding, the different stakeholders will not be able to play their part in ensuring that the laws which get adopted help to foster a strong, independent and diverse media in Myanmar.”

The Government of Indonesia is proposing to replace its authoritarian 1985 law on civil society organisations (CSOs) with a new Law Pertaining to Mass Organisations. While this is generally a welcome development, an analysis by the Centre for Law and Democracy (CLD) highlights a number of serious problems with the draft Law, which is currently before the National Assembly.

Click here to read the Analysis

“One of the great successes of Indonesia’s transition to democracy is the extremely vibrant civil society that has flourished since the end of the Suharto regime in 1998,” said CLD Executive Director Toby Mendel. “The 1985 law should be replaced, but certainly not by a law that affords an even greater degree of government control over the activities of civil society.”

In practice, the 1985 law has not been applied since Suharto’s fall. Some of the more problematical aspects of the draft Law include:
• Broad powers vested in government to impose sanctions on CSOs without going to court.
• Illegitimate restrictions on the activities of CSOs.
• Unduly prescriptive rules regarding the way in which CSOs should be structured and managed.
• Rules which give the government a significant measure of control over the activities of foreign CSOs.

We call on the Government of Indonesia to reconsider the approach taken in the draft Law and to revise it to bring it more closely into line with international standards. The provisions which give officials greater control over CSOs are particularly problematical.

Weak civil society demand for information, combined with a lack of understanding about how to make requests for information, can be a major implementation weakness in countries seeking to implement new right to information (RTI) laws. To help address this problem in Indonesia, the Centre for Law and Democracy (CLD) and the Alliance of Independent Journalists (AJI) have just completed a training of trainers programme in Jakarta. Trainees from across Indonesia will follow up by conducting training programmes for civil society organisations in their home provinces of West Java, South Sumatra, West Nusa Tenggara and North Sulawesi. Those groups will then be expected to lodge a minimum of ten requests for information related to the areas in which they work, while the trainers will provide support to them through this process.

“Experience in many countries shows that weak demand for information is one of the key factors undermining successful implementation of RTI regimes,” said Toby Mendel, Executive Director of CLD. “We are seeking to build a core of groups in different parts of the country that have experience in making requests, which we hope will demonstrate the potential benefits of RTI for other groups working in their sectors.”

“Although it has been in effect since 1 May 2010, implementation of the RTI Law is still very weak”, said Eko Maryadi, President of AJI. “Public bodies have not taken the necessary steps to implement the law and they are still trapped in culture of secrecy.”

The training program is part of a broader programme sponsored by Open Society Foundations aimed at boosting the right to information in Indonesia. The programme also includes supply-side interventions, grassroots activities and the production of resource materials.

More information on the programme, as well as versions of the training manual in both English and Bahasa Indonesia and other resources, are available at: http://www.law-democracy.org/live/projects/rti-in-indonesia/.

The 15th Philippine National Congress failed to pass a right to information (RTI) law, despite promises by the Aquino administration – to the Philippine people and in its Open Government Partnership (OGP) Action Plan – to ensure the adoption of this key democratic legislation. The Centre for Law and Democracy (CLD) and the Philippine based Institute for Freedom of Information have written to the OGP Steering Committee asking it to take action on this signal failure by the Philippine administration to live up to its promises and commitments. Efforts to adopt a right to information law, which continued until the very last minute, were ultimately unsuccessful, in circumstances reminiscent of the similar failure of the previous Congress.

Click here to read the Letter

“We have written to the OGP Steering Committee asking them to take action to signal to the Government of the Philippines that its actions are not in accordance with the norms and expectations of the OGP,” said Toby Mendel, Executive Director of CLD. “We believe that all Participating States should be expected to move decisively towards the adoption and proper implementation of an RTI law.”

The Philippine OGP Action Plan explicitly states that the FOI Act which the government had placed before Congress is a “critical component” of its Public Access to Information Initiative. Despite this, President Aquino failed to take the necessary steps to push for the enactment of the law by Congress, although this was well within his power. The situation is rendered even more unacceptable by the fact that the Philippines was an original OGP State and has been a member of the Steering Committee since the very beginning.

“We sincerely hope that the OGP Steering Committee takes decisive action in response to this fact that the Philippines still does not have an RTI law”, said Nepo Malaluan, Co-Director of the Institute for Freedom of Information. “If it does not, we believe that the credibility of the OGP will be at risk.”

The CLD/Institute for Freedom of Information letter includes as an annex a statement by the national campaign, The Right to Know, Right now! Coalition expressing deep disappointment about the failure of the Philippine authorities to adopt an RTI law.

Canada’s right to information system is broken and comprehensive legal reform is now an urgent priority. There has for some time been consensus on this among journalists, civil society, Information Commissioners and even Parliamentary committees. But successive governments have refused to take action to resolve the problem. On International Right to Know Day, 28 September 2012, Canada’s Information Commissioner launched a consultation to solicit broad national input into this issue. The Centre for Law and Democracy today released its Response to the consultation, calling for ‘root and branch’ reforms to bring Canada’s right to information into line with international standards.

Click here to read the Response

“We commend the Information Commissioner for launching this worthy initiative,” said CLD Executive Director Toby Mendel. “We hope that the federal government will finally undertake the long overdue reforms that are required to turn the Access to Information Act into the effective mechanism of government accountability that Canadians deserve.”

Canada was a global leader on this issue when it first adopted its legislation in 1982, but international standards have developed very significantly since then, and the country has fallen behind. It is now just in 55th place among the 93 countries which have adopted right to information legislation (see www.RTI-Rating.org).

Some of the key recommendations in CLD’s Response are the need to extend the scope of the law to cover the Cabinet, Parliament and the judiciary, the removal or tightening of several problematic exceptions and the introduction of a broad public interest override, the elimination of fees for lodging requests, the imposition of binding maximum timelines for responding to requests and empowering the Information Commissioner to make legally binding decisions. Perhaps most importantly, the Report recommends a wholesale change in attitudes towards disclosure, which remain adversarial and which fail to treat this issue as a human rights concern.

The Centre for Law and Democracy, as part of the International Media Mission to Nepal, has written to Dr Baburam Bhattarai, the Rt. Honourable Prime Minister of Nepal, urging him not to obstruct the murder case against Dekendra Thapa, a journalist who was brutally tortured and then murdered in 2004. From 3-5 January 2013, the police arrested five suspects in the case. However, reports suggest that the Prime Minister has sought to halt the investigation, on the basis that political crimes committed during the ten-year conflict period should, pursuant to the 2006 peace agreement, be dealt with by a truth commission. This is troubling in light of the danger that journalists face in Nepal, with their attackers often enjoying immunity from justice.

Click here to read the letter to Prime Minister Bhattarai

“This is a hugely important case,” said CLD Executive Director Toby Mendel. “While we respect the formal terms of the peace agreement, it has been six years since the agreement was signed and the truth commission has yet to be established. It would simply not be acceptable to halt an investigation into the murder of a journalist on the basis that it should be referred to the truth commission.”

Attacks on journalists and a prevailing climate of impunity have been one of the key foci of the International Media Mission to Nepal (IMM). The other has been legal and policy reform. The IMM visited Nepal in February 2012 and has since been engaged in various forms of support for freedom of expression in the country, working with our local partners, in particular the Federation of Nepali Journalists (FNJ).

Click here for the Joint Statement issued by the IMM at the end of its February mission.

Click here for detailed comments by the IMM on the constitutional proposals affecting freedom of expression and the media.

The Centre for Law and Democracy is today releasing its analysis of the provisions in the draft Egyptian Constitution that protect freedom of expression, information and the media, as the days tick down to the constitutional referendum scheduled for 15 December. Although the draft contains reasonably solid positive protections for freedom of expression, it leaves the scope for restrictions wide open, subject only to the “Principles of Islamic Sharia”. Providing strong constitutional protection for freedom of expression is essential if democracy is to be established in Egypt.

Click here to read the Analysis in English
Click here to read the Analysis in Arabic

“The draft Constitution contains some encouraging provisions, such as a guarantee of freedom of expression using any medium, recognition of the right to information and a shift away from licensing of newspapers,” said CLD Executive Director Toby Mendel. “But the draft signally fails when it comes to constraining the ability of the State to restrict freedom of expression where, instead of a clear and modern test based on necessity in line with international standards, there are references to principles deriving from one religious tradition and a range of general political, social and economic goals.”

Some of the more serious problems cited in the Analysis are that the draft Constitution:
• protects only the right to impart, but not to seek and receive, ideas;
• fails to clarify that the right of access applies to information held by public bodies;
• fails to establish a clear obligation on the State to grant licences for commercial and community stations to broadcast over the airwaves;
• envisages legal regulation of the establishment of Internet media;
• envisages restrictions on freedom of expression being justified by reference to the Principles of Islamic Sharia and a range of social goals; and
• imposes a number of broad and problematical direct restrictions on freedom of expression, including by prohibiting “insult or abuse” of religious messengers.

It is imperative that at least the more serious of these problems be addressed. We call on the authorities to revise these provisions before the Constitution is adopted.

Immediately after it was passed on 12 September 2012, the Philippines’ Cybercrime Prevention Act was met with a flurry of legal challenges from journalists and civil society organisations in the Philippines. An Analysis released today by the Centre for Law and Democracy confirms and supports their concerns, finding that the law perpetrates significant violations of international standards on freedom of expression.

Click here for the Analysis

“There is a widespread tendency for lawmakers to seek to apply rules to the Internet which fail to take into account its unique nature, thereby violating freedom of expression online,” said CLD Executive Director Toby Mendel. “It is possible to address legitimate concerns in a way which protects the free flow of information online; unfortunately, this law fails to do that.”

Some of the more serious problems cited in the Analysis are that the Cybercrime Prevention Act:
• extends existing criminal rules, including the country’s already problematic criminal defamation laws, to the Internet with no consideration of the specific implications of this, in most cases imposes even harsher penalties;
• grants law enforcement sweeping surveillance powers and requires the Department of Justice to block websites in cases of prima facie breach of the Act;
• grants Philippine authorities vast jurisdiction to police the Internet;
• criminalises mere recklessness and cybersquatting; and
• imposes very extensive data retention requirements on service providers.

The implementation of the Cybercrime Prevention Act has been suspended by the Supreme Court for 120 days, in order to allow the challenges against the law to proceed. We call on the Court to recognise the ways in which the Act breaches the right to freedom of expression, and for lawmakers in the Philippines to amend it so as to strike an appropriate balance between addressing crimes and respecting fundamental human rights.

The Centre for Law and Democracy, in collaboration with four other civil society groups – the BC Freedom of Information and Privacy Association (FIPA), Canadian Journalists for Free Expression (CJFE), Lawyer’s Rights Watch Canada (LRWC) and Pen Canada – provided a Submission to the UN Human Rights Council’s Universal Periodic Review (UPR) process on Canada. The Submission focuses on freedom of expression and the right to information issues in Canada.

Click here to read the Submission

“Canada generally has a strong record on human rights,” said CLD Executive Director Toby Mendel. “But it also has some significant weaknesses, including in relation to freedom of expression and access to information, which need to be addressed if democracy is to continue to flourish.”

Some key problem areas identified in the Submission include:
• Weak protection for the confidentiality of sources of information.
• A failure to respect the rights of journalists covering demonstrations.
• The retention of criminal defamation laws.
• Poor legal guarantees for the right to information.
• Limited protection for whistleblowers.
• Insufficient attention to promoting universal access to the Internet, particularly among First Nations communities.
• An emerging practice of passing repressive laws during protest events, only to repeal them after the demonstrations have ended.

On 15 July 2012, Mam Sonando, a prominent Cambodian broadcaster, was arrested and charged with attempting to form a secession movement in the province of Kratie. The charges were wholly without merit, and the arrest was announced the day after Mr. Sonando appeared at the International Criminal Court for a presentation by the Khmer People Power Movement to the Office of the Prosecutor on alleged crimes against humanity by the Cambodian government. As a result of the timing of the arrest, the lack of evidence against Mr. Sonando, and the fact that Mr. Sonando had been arrested twice before on spurious charges after publicly criticising the Cambodian government, many in the international community believed that Mr. Sonando was arrested for exercising his right to freedom of expression.

At that time CLD, along with Lawyers’ Rights Watch Canada and the International Federation of Journalists, wrote a letter to Cambodia’s Prime Minister Hun Sen protesting the arrest. On October 1, Mr. Sonando was convicted of the charges and sentenced to 20 years in prison. The Cambodian authorities have still not presented any evidence justifying Mr. Sonando’s detention, nor have they given due consideration to his advanced age (he is 70 years old) or his ill health in their treatment of him.

CLD, along with the International Federation of Journalists, have now drafted another letter calling for Mr. Sonando’s immediate release, and calling on the Cambodian government to respects its international human rights obligations.

Click here to read the Open Letter

Egypt is in the midst of a vitally important phase in its democratic transition, and a vibrant debate is ongoing over the nature of its constitutional protections for human rights. In order to provide support to this discussion, the Centre for Law and Democracy today released a set of Comments, in English and in Arabic, on the Freedom of Expression and Information Clauses in the Draft Constitution for Egypt.

Click here for the Comments
Click here to read the Comments in Arabic

“The fact that Egypt is having a democratic debate about the content of its new constitution is an extremely positive sign of the profound changes that have taken place,” said CLD Executive Director Toby Mendel. “At the same time, the specific proposals on freedom of expression and access to information, while an improvement over the 1971 Constitution, need to be amended to bring them more fully into line with international standards.”

Specific areas for improvement indentified in the Comments include:
• Stronger positive guarantees for freedom of expression, which also protect the rights to seek and receive information and ideas.
• The need for the Constitution to set clear limits on the scope of permissible restrictions on freedom of expression, rather than leaving this important question open.
• The need to guarantee the independence of both bodies with regulatory powers over the media and the public media.
• Defamation should be fully decriminalised.
• There should be clear and unambiguous protection for the right to information.
• The right to engage in criticism of religion without inciting hatred against the believers of that religion should be protected.

The Centre for Law and Democracy (CLD) is celebrating the 10th anniversary of International Right to Know Day by launching two comparative publications and by hosting a debate on the right to know. “Incredible progress has been made on the right to information in the last the years,” said CLD Executive Director Toby Mendel. “But far more needs to be done. Implementation languishes in many countries and much remains to be done in terms of pushing information out to citizens. Our Right to Know Day work reflects both of these recurring themes.”

Study on Better Practices by election commissions
CLD is today launching a study on better practice approaches to the provision of information by bodies which oversee elections (election commissions). The study provides a comparative view of how election commissions perform in seven key areas – including voter education, informing the electorate about parties and candidates, being open themselves and the controversial issue of releasing election resuts – along with recommendations for better practice.

Click here to read the Election Commissions Study (in English) (in Bahasa Indonesian)

Study on Canadian Jurisdictions
The RTI Rating is an objective and scientific tool for assessing the quality of legal frameworks for the right to information. CLD has rated the legal frameworks for information in all 14 Canadian jurisdictions (federal, provincal and territorial). All 14 jurisdictions fall seriously short in terms of protecting the right to information, with the federal system rating 55th globally when compared to other countries. It is time for Canadians to stand up and protest against this miserable performance.

Click here to see the Canadian Rating and accompanying Analysis

Debate on the Status of the Right to Know
To mark Right to Know Day, CLD is hosting a debate on the status of the right to know in Canada and globally. Join the conversation by sending comments to @law_democracy on Twitter or debate@law-democracy.org, or follow us on #righttoknow or Facebook: http://www.facebook.com/pages/Centre-for-Law-and-Democracy/164303533623512. Those in Halifax can join us at the Hub, 1673 Barrington Street.

FOIAnet’s 10-10-10 Statement
CLD would like to thank the Freedom of Information Advocates Network (FOIAnet) for its tremendous work over the last ten years, and for serving as a centre of support and motivation for groups working on the right to information. FOIAnet’s 10-10-10 Statement on its achievements over the last ten years, the challenges that it faces and its priority goals for the next ten years encapsulates the work of the organisation.

Click here to read the Statement

The Centre for Law and Democracy (CLD) and International Media Support (IMS) today released an Analysis of the guarantees for freedom of expression in the 2008 Constitution of the Republic of the Union of Myanmar. Although the 2008 Constitution represented an important step forward in terms of democracy and human rights, the Analysis highlights shortcomings in terms of both the positive guarantees for freedom of expression and the relatively wide latitude it allows for restricting that right.

Click here to read the Analysis

“Myanmar has made a strong commitment to reforming its law and practice on freedom of expression and other foundational rights for democracy,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “Part of that should include bringing the Constitution more fully into line with international standards, along the lines recommended in our Analysis.”

The CLD/IMS Analysis makes a number of recommendations to strengthen the Constitutional guarantees, including the following:
➢ The right to freedom of expression should apply to everyone, to all information and ideas, and regardless of frontiers.
➢ It should include not only the right to impart, but also the rights to seek and receive information and ideas.
➢ “Community peace and tranquillity” should not be included as grounds for restricting freedom of expression.
➢ Restrictions on freedom of expression should only be allowed where they are necessary to protect one of the interests listed in the Constitution.

“Myanmar has taken significant steps in the past year towards greater media freedom and freedom of expression for its citizens. A major challenge now is to ensure that repressive media laws are replaced and constitutional guarantees for freedom of expression are improved,” said Jesper Højberg, Executive Director of International Media Support (IMS).

We urge the Myanmar authorities to hold discussions with local stakeholders with a view to improving the constitutional guarantees for freedom of expression.