The documents listed here provide legal analyses of various draft laws (and sometimes adopted laws). The focus on the analyses is the extent to which these draft laws meet the human rights standards set out in the constitution and under international law.
Statement by the Nepal International Media Partnership
Analysis of Constitutional Proposals on Freedom of Expression, Media Freedom and the Right to Information
23 July 2015
prepared by the Centre for Law and Democracy
The government of Nepal has recently released a new version of the draft Constitution, which is now being considered by Parliament. This Joint Statement by the Nepal International Media Partnership (NIMP) provides an analysis of the draft Constitution from the perspective of international guarantees of freedom of expression. It is intended to support the government and Parliament of Nepal, as well as other local stakeholders, with a view to ensuring that the final version of the Constitution is as fully in line with international standards as possible.
The international community has been supporting the promotion of freedom of expression in Nepal for more than ten years, including through eight International Missions to Nepal, the most recent of which took place from 19 to 23 April 2015. The NIMP is founded on a shared long-term objective of promoting freedom of expression in cooperation with local stakeholders, including public sector actors and civil society.
This Joint Statement focuses on three of the constitutional proposals on human rights, namely those relating to freedom of expression, media freedom and the right to information. It should be read in conjunction with the March 2012 International Fact Finding and Advocacy Media Mission to Nepal: 23-27 February 2012: Analysis of Constitutional Proposals on Freedom of Expression, Media Freedom and the Right to Information, which it largely echoes, given that the constitutional proposals in these areas have hardly changed since that time.
The comments in this Joint Statement are based on the International Covenant on Civil and Political Rights (ICCPR) a legally binding international treaty which Nepal ratified in May 1991. The ICCPR is the main international human rights treaty guaranteeing the rights to freedom of expression, in particular in its Article 19. It is abundantly clear from authoritative interpretation of Article 19 that it embraces freedom of expression broadly, including media freedom and the right to access information held by public authorities (the right to information).
It is also clear that the right to freedom of expression is not absolute; Article 19(3) of the ICCPR lays down a strict three-part test for assessing the legitimacy of any restrictions on freedom of expression. This test only recognises as legitimate restrictions which a) are provided by law; b) protect one of the interests listed in Article 19(3), namely the rights or reputations of others, national security, public order (ordre public), public health or public morals; and c) are necessary to protect that interest.
I. Guarantee of Freedom of Expression
Article 22 of the draft Constitution guarantees freedom of expression stating, simply: “Every citizen shall have the following freedoms: (a) Freedom of opinion and expression”. While this is useful, it lacks some of the positive attributes of international guarantees inasmuch as it only applies to citizens whereas international law and better comparative constitutional practice provides protection to everyone.
More important is the fact that Article 22 would allow for far greater restrictions on freedom of expression than is permitted under international law. The most important area of difference between international law and the draft Constitution in this regard is the grounds for restricting freedom of expression. Instead of simply protecting national security, the draft Constitution protects “nationality, sovereignty, independence and integrity”. It is not clear what exactly is meant by “nationality” but it is hard to see how a mere expression could harm nationality, or what sort of expression might legitimately be restricted to protect this ‘interest’. The term “integrity” is also problematical and international law protects as legitimate advocacy in favour of separation as long as it does not incite to violence as part of this. International law also does not permit restrictions on freedom of expression which protect “the harmonious relations subsisting among the federal units”, which would cover important political speech.
Article 20(2) of the ICCPR requires States to ban advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (‘hate speech’). Article 22 of the draft Constitution goes far beyond this by prohibiting any statement which would “jeopardize the harmonious relations … among peoples of various castes, tribes, religions or communities”. This fails to respect international standards in this area and could easily be abused for political reasons. It would, for example, prohibit legitimate public debate about the complex and often difficult issue of racism.
Three of the grounds for restrictions on freedom of expression in Article 22 – namely “any act of defamation, contempt of court or incitement to an offence” – do not protect legitimate interests but, instead, types of laws. The interest protected by defamation laws, for example, is the reputation of others. This is problematical because it suggests that these laws are themselves legitimate. Instead of referring to types of laws, the Constitution should refer to relevant interests, such as reputation, the independence and authority of the judiciary and public order.
There are also important differences between the standard of harm required to justify restrictions under international law and those found in Article 22. International law requires restrictions to be necessary, which is interpreted as imposing a high standard including that restrictions are clearly and narrowly defined, that they serve a pressing social need, that they are the least intrusive measure which will be effective in protecting the legitimate interest, that they are not overbroad and that they are proportionate. In stark contrast, Article 22 uses the much more permissive terms of ‘may undermine’ or ‘may jeopardize’.
II. Guarantee of Media Freedom
Article 24 of the draft Constitution is welcome inasmuch as it explicitly rules out censorship of all types of media, as well as the closure, cancellation of registration or interruption of media outlets, although it does envisage the regulation of the media. However, it also suffers from imposing unduly broad restrictions on freedom. The criticisms above regarding Article 22 essentially apply in the same way to Article 24, which includes a very similar provision on restrictions.
III. The Right to Information
The guarantees for the right to information in Article 32 of the draft Constitution are unduly narrow. First, under international law this right, like the general right to freedom of expression, is enjoyed by everyone, not just citizens. Second, under international law the right applies to all information, not just information deemed to be of interest to the citizen or the general public. One might reasonably assume that if someone is seeking information, that information is of concern to him or her. More importantly, this limitation might be interpreted in an unduly restrictive manner by the authorities, for example to refuse access to information which they do not deem to be of concern to a citizen or the public.
The approach to restrictions on the right to information in Article 32 is very problematical inasmuch as the right does not extend to “any matter of which secrecy is to be maintained by law”. This effectively recognises limitation on the right, as long as it is found in a law, and effectively fails to place any limits or conditions on laws which restrict the right to information.
To bring the provisions on freedom of expression, freedom of the media and the right to information in the draft Constitution into line with international law, we suggest the following:
➢ The rights to freedom of expression and information should apply to everyone, not just citizens.
➢ The terms “nationality”, “integrity” and “harmonious relations subsiding among federal units” should be removed as grounds justifying restrictions on freedom of expression.
➢ The references to “harmonious relations subsisting among … peoples of various castes, tribes, religions or communities” should be replaced by the idea of incitement to violence, discrimination or hatred against these groups.
➢ The references to types of laws – namely defamation, contempt of court and incitement to an offence – should be replaced with references to types of interests, such as ‘reputation’, the ‘independence and authority of the judiciary’ and ‘public order’.
➢ The weak standards in Articles 22 and 24, such as “may undermine” or “may jeopardize”, should be replaced by stronger tests, such as “would be likely to undermine”.
➢ The right to information should cover all information, not just information deemed to be of concern to a citizen or the public.
➢ A test for restrictions on the right to information should be introduced into article 32, which should be modelled along the same lines as the test for restrictions on the general guarantee of freedom of expression.
Possible Constitutional Provisions
Based on these recommendations and other comments in this Analysis, the following is a possible form for the constitutional proposals on the rights to freedom of expression, media freedom, and the right to information:
22. Right to Freedom
(2) Everyone shall have the following freedoms:
a. Freedom of opinion and expression, which include the right to seek, receive and impart information and ideas through any media;
1. Nothing in sub-clause (a) shall be deemed to prevent the making of laws which impose reasonable restrictions on expressive activities which are likely to undermine the sovereignty or independence of Nepal, which incite to hatred, discrimination or violence against people based on their caste, tribe, religion or community, or which are likely to harm the rights or reputations of others, the independence or authority of the judiciary, public order or public morality.
24. Right to Mass Communication
(1) No publication, broadcasting or printing of any news item, editorial, feature, article or other written or audio-visual material through any means whatsoever including via electronic means, broadcasting or printing shall be subject to prior censorship.
(2) No radio, television, on-line or other form of digital or electronic equipment, press or other means of communicating, publishing, broadcasting or printing any material shall be closed nor shall registration thereof be canceled due to the content it has disseminated.
(3) No means of communication including via the press, electronic means, broadcasting or telephone shall be interrupted except in accordance with law.
Provided that nothing this Article shall be deemed to prevent the making of laws to regulate radio, television, online or any other type of digital or electronic equipment, press or any other means of communication which otherwise meet the conditions of Article 22.
32. Right to Information:
Everyone shall have the right to demand and receive any information from a public body.
Provided that this shall not be deemed to prevent the making of laws which impose reasonable restrictions on the disclosure of information where this is likely to undermine the sovereignty or independence of Nepal, to incite to hatred, discrimination or violence against people based on their caste, tribe, religion or community, or to harm others’ rights or reputations, the independence or authority of the judiciary, public order or public morality.
For more information, please contact:
+1 902 431-3688
CLD released an Analysis of the draft Pakistani Right to Information Act, finding that the “remarkable” draft has a “superlative” score on the RTI Rating, and urging the Pakistan Parliament to move forward with adopting the draft law.
CLD released an Analysis of the draft Tanzanian Media Services Act, 2015, which found that it does not conform to international standards of respect for freedom of expression. The new regulations are unduly intrusive on the media, overseen by entities controlled by the government, and in some cases not realistic on a practical level.
Note on the Sri Lankan draft Constitutional Proposal on the Right to Information, April 2015 (link to the Note)
The government of Sri Lanka has put in place a process to prepare a right to information (RTI) law and proposed a set of constitutional amendments which would provide fundamental rights protection for access to information. An analysis by CLD, released today, suggests that the proposed constitutional guarantee needs to be strengthened.
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. CLD prepared a Note on the draft Principles with a view to making the final product as robust as possible
18 civil society organizations, including CLD, drafted this Joint Submission to the European Investment Bank (EIB) on its draft revised EIB Group Transparency Policy, including recommendations for bringing the policy in line with international standards for international financial institutions.
Submission to Canada’s Open Government Consultations, September 2014 (link to the CLD Submission)
CLD responded to the consultation on Canada’s second Open Government Partnership 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 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. Many of the other problems noted in the Analysis are relatively minor, however, and could easily be corrected through small drafting changes.
Note on Morocco’s Draft Law No. 31.13 on the Right of Access to Information, September 2014 (link to the Note)
CLD has prepared an analysis of the latest version of Morocco’s draft right to information law, Draft Law No. 31.13 on the Right of Access to Information, which finds that the draft scores only 65 points out of a possible 150 on the RTI Rating. It is notable that this is substantially weaker than a previous draft published in August 2013. 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.
CLD prepared this Submission analysing the problems with Newfoundland and Labrador’s access law, and proposing reforms.
CLD has released Comments on the Media Law currently awaiting Presidential signature in East Timor. An analysis of the Law reveals serious problems in terms both of human rights and of the stated goals of the law.
CLD released an Analysis of the main problems with Bill 1, Newfoundland and Labrador’s proposed whistleblower protection law. The Analysis provided several concrete recommendations, including extending whistleblower protection to the private sector and removing an exception for Cabinet documents.
The Centre for Law and Democracy (CLD) has done an analysis of the latest draft of the Access to Information Law being prepared by the Palestinian authorities which indicates that the law has been substantially weakened since our last analysis in December 2013. Using the RTI Rating (www.RTI-Rating.org), the December draft obtained a score of 92 points out of a possible 150, which has now declined to just 85 points, well into the bottom half of all countries globally with right to information (RTI) laws.
The CLD released Comments on a new cybercrime law, the draft Prevention of Electronic Crimes Act, 2014, which is being considered by the government of Pakistan. The CLD Comments highlight the fact that the draft Act threatens to undermine the development of the Internet in Pakistan. The draft Act does contain some positive aspects, such as rigorous procedural protections regarding cybercrime investigation and limitations on intermediary liability, but its broadly defined crimes threaten to turn almost every Pakistani Internet user into a criminal.
Note on the Kurdistan Region of Iraq Right to Access Information Law, January 2014 (link to the Note)
The CLD and the International Federation of Journalists (IFJ) prepared this Note analysing the Right to Access Information Law, No. 11 of 2013, adopted by the government of the Kurdistan Region of Iraq. The Law is a relatively progressive piece of legislation, garnering 98 points out of a possible 150 on the RTI Rating (www.RTI-Rating.org), which would put it in 28th place globally out of 95 countries, as of the time of publication.
CLD carried out an assessment of Palestine’s draft Law on the Right of Access to Information using the RTI Rating which found that the draft would obtain a rather modest score of 92 points out of a possible 150.
The Trans-Pacific Strategic Economic Partnership Agreement (TPP) has been a magnet for controversy since its inception, largely due to the excessive secrecy in which it is being negotiated and rumours that its intellectual property provisions would threaten Internet freedom. The Centre for Law and Democracy prepared an Analysis of the TPP, based on a draft version of the intellectual property chapter released by Wikileaks, which notes several significant problems with the treaty from a freedom of expression perspective.
Comments on the Bhutanese draft Right to Information Bill, October 2013 (link to the Comments)
The Government of Bhutan has posted a draft of the Right to Information Bill, 2013, for comment. As part of a joint project with International Media Support, CLD prepared Comments on the draft Bill based on the RTI Rating, a methodology for assessing the strength of legal frameworks for the right to information, developed by the Centre for Law and Democracy (CLD) and Access Info Europe. The RTI Bill measures up extremely well, garnering 125 points out of a possible total of 150. This score would place Bhutan in 5th place globally.
GCF: Comments on Proposed Information Policy, October 2013 (link to the Analysis)
The Green Climate Fund (GCF), an international financial institution (IFI) which uses lending to promote compliance with the UN Framework Convention on Climate Change (UNFCCC), has prepared a draft policy on information disclosure for consideration by the Board at its fifth meeting in Paris from 8-10 October 2013. The Global Transparency Initiative (GTI) has prepared a Note analysing the draft policy, prepared by CLD.
CLD released an Analysis pointing to major problems with Nova Scotia’s transparency framework, the Freedom of Information and Protection and Privacy Act (FOIPOP). Among major recommendations are that the Review Officer should have the power to make binding orders, and an expanded mandate including investigative powers, that timeline extensions for response should be capped at 30 days, that unnecessary and overly broad exceptions should be removed or revised, and that the rules on release of information in the public interest should be strengthened.
Russia: Internet Freedom is Under Severe Threat, July 2013 (link to the Analysis)
The Centre for Law and Democracy is releasing an analysis today of key recent changes to Russia’s internet policy.In recent years, freedom of expression in Russia has come under severe attack. A number of pieces of legislation have been adopted limiting the ability of opposition voices to make themselves heard. The analysis demonstrates that, even against this troubling backdrop, the recent decision by Russia’s government to create an Internet blacklist is a particularly ominous development.
European Union: Data Retention Directive not Justifiable, July 2013 (Link to the Analysis)
The Centre for Law and Democracy has released an Analysis of the European Union’s 2006 Data Retention Directive, assessing it from the perspective of the right to freedom of expression. The Directive has attracted a lot of criticism, mostly on the basis that it fails to respect privacy. CLD’s Analysis highlights the ways the Directive exerts a chilling effect on freedom of expression, and its failure to pass muster as a restriction on free speech.
Global Right to Information Update: An Analysis by Region, July 2013 (Link to the Analysis)
The Freedom of Information Advocates Network (FOIAnet) launched a major global analysis of the development of the right to information (RTI) movement, broken down by region. The publication follows FOIAnet’s celebration of its 10th anniversary on International Right to Know Day, 28 September 2012. The analysis is a comprehensive effort to incorporate access to information issues from across the world and the different challenges that civil rights advocates face. CLD Executive Director Toby Mendel is also the chair of FOIAnet.
South Korea: Copyright Act Restricts Freedom of Expression, June 2013 (Link to the Analysis)
The Centre for Law and Democracy released an Analysis of the South Korean Copyright Act. The Act attracted a lot of criticism for 2009 amendments introducing a three strikes system whereby users could have their Internet services cut off after being warned three times about copyright infringements. Further amendments in 2011 failed to address the most serious problems with the system.
Jordan: Press Law Amendments Seriously Threaten Online Speech, June 2013 (Link to the Analysis)
On 2 June 2013, Jordan’s Press and Publications Department issued an order blocking hundreds of websites due to their failure to register with the government. The order drew international condemnation, mainly because it is the first high-profile case of implementation of Jordan’s new legal regime for the print media, which was amended in 2012 to extend onerous registration and other requirements to the Internet. The Centre for Law and Democracy released Comments on the Law Amending the Press and Publications Law of 2012, which highlights the severe problems with these amendments from the perspective of freedom of expression.
The Centre for Law and Democracy is released a Note analysing the freedom of expression provisions in the new draft Constitution for Tunisia, dated 1 June 2013. As the foundational document for the system of governance in post revolutionary Tunisia, it is very important that the Constitution provide strong guarantees for human rights and particularly those rights, including freedom of expression, which were roundly abused under the previous regime.
Global Climate Fund Proposes Openness Policy, June 2013 (link to the Note)
The Global Climate Fund (GCF), a new international financial institution (IFI) which aims to use lending to promote compliance with the United Nations Framework Convention on Climate Change (UNFCCC), is proposing to adopt an information disclosure policy. The Global Transparency Initiative (GTI) has prepared a Note on Better International Practices on Access to Information for the GCF Board, which will discuss this issue at its next meeting in Songdo, Republic of Korea, 25-28 June 2013. The Note was prepared by Toby Mendel, Executive Director of CLD, with comments from GTI members.
Morocco: Concerns Remain over Media Law Reform, June 2013 (link to the analysis)
The Centre for Law and Democracy (CLD) today released an analysis of four draft press laws in Morocco. While positive aspects do exist, the law has a number of seriously concerning elements with freedom of expression implications. The analysis points to a number of provisions, including requirements for press council membership, minimum requirements to become a journalist and overly harsh defamation laws as needing of revision.
The new right to information (RTI) legislation being proposed by the Danish government, the Act on Openness in Administration, signally fails to address the very serious problems in the current regime. The Danish proposals have come under significant fire for their restrictive treatment of ministerial information. However, an analysis by CLD demonstrates that this problem is just the tip of the iceberg. In addition to several new exceptions, the major problems with the current system – including its limited scope, flexible time limits for responding to requests, the absence of a public interest override for exceptions and the lack of a dedicated administrative appeals body – have not been addressed.
The Centre for Law and Democracy has prepared a set of Comments on the draft Access to Information Law published by the Afghan government. There have been discussions in Afghanistan about a right to information law for some time. The Centre for Law and Democracy welcomes efforts to adopt a right to information law in Afghanistan, and urges the government to bring the draft law more fully into line with international standards before it is adopted.
Submission on Access to Information Reform in Quebec, April 2013 (link to the Submission)
Given the steady stream of corruption and mismanagement allegations that have emanated from the province in recent months, it is hardly revelatory to suggest that Quebec has a problem with transparency. This Submission was prepared for a general consultation and public hearing being held by the Province of Quebec’s Committee on Institutions that is meant to address, among other issues, the implementation of Quebec’s Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information. The Submission identifies a litany of deficiencies, including overly broad exceptions, the limited scope of the law, routine breaches of timelines and overcharging of requesters. It also notes that several public authorities, including ministers’ offices, municipalities and members of the National Assembly, are under no firm obligation to disclose any information, instead having the discretion to release information only when they feel this would be expedient.
Myanmar: Draft Law is a Step Forward, March 2013 (link to the Comments)
In association with International Media Support, the Centre for Law and Democracy released official comments on a draft law in Myanmar. The law represents a significant step forward for Myanmar and its commitment to ongoing democratisation and compliance with International standards. The law creates a registration system, regulates content and governs import and distribution of publication. The comments conclude that the law needs to be improved to meet established standards on government independence and its various procedures can be potentially confusing and can be used to limit press freedoms.
Submission on the Transparency Policy of the International Monetary Fund, March 2013 (link to the Submission)
The International Monetary Fund (IMF) has launched a review its Transparency Policy, last revised in 2009. As part of the Review, the Centre for Law and Democracy (CLD) has produced a Submission assessing the current policy against the standards developed by the Global Transparency Initiative (GTI) (www.ifitransparency.org). Some international financial institutions (IFIs) – including the Asian Development Bank, the World Bank and the Inter-American Development Bank – have made significant progress on transparency in the recent years; the IMF Policy, in contrast, remains limited to a proactive disclosure list approach.
Indonesia: Analysis of Draft Law on NGOs, February 2013 (link to the Analysis)
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.
Somalia: Analysis of Legal Framework for the Media, January 2013 (link to the Analysis)
The Centre for Law and Democracy, working with the African Union/United Nations Information Support Team (IST), and in partnership with UNESCO, released the Somalia: Media Law and Policy Review, analysing the legal framework for media regulation in Somalia. There has been important progress in Somalia in recent months, with the drafting of an interim constitution, and the election of a parliament and a president. The Review is designed to help the new government move forward to implement media reforms in line with the interim constitution.
Canada: Right to Information Law Needs Major Overhaul, January 2013 (link to the Analysis)
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 released its Response to the consultation, calling for ‘root and branch’ reforms to bring Canada’s right to information into line with international standards.
Egypt: Draft Constitution Leaves Wide Scope to Limit Rights, December 2012 (link to the Analysis)
The Centre for Law and Democracy released an 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.
UPDATE: August 2013: The Analysis is now available in Arabic
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 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. 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.
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 released a set of Comments on the Freedom of Expression and Information Clauses in the Draft Constitution for Egypt.
Failing to Measure Up: An Analysis of Access to Information Legislation in Canadian Jurisdictions, September 2012 (link to Analysis)
This Analysis discusses the strengths and weaknesses of Canada’s federal, provincial and territorial access to information laws based on an assessment of these laws using the RTI Rating. The Analysis points to severe problems with access to information frameworks across the country. The three biggest problems, all of which recur in every Canadian law, are limits on scope in terms of public authorities, procedural weaknesses, and overly broad regimes of exceptions. The Analysis probes these and other weaknesses in Canada’s access laws, providing specific recommendations on how to bring these laws more fully into line with international standards.
Myanmar: Analysis of Constitutional Guarantees, August 2012 (link to the Analysis)
The Centre for Law and Democracy (CLD) and International Media Support (IMS) 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.
Egypt: Statement on the Need for Real Reform of Defamation Laws, August 2012 (link to the Statement)
On 23 August 2012, Egypt’s newly elected President, Mohamed Morsi, passed his very first decree after having wrested back legislative powers from the Supreme Council of the Armed Forces (SCAF) earlier that month. The decree cancelled the possibility of pre-trial detention for journalists charged with insulting the president, leading to the release of Islam Afifi, editor-in-chief of Al-Dustour newspaper. This is a positive measure, which has earned the President kudos. The laws on defamation, however, are in need of far more profound reform if they are to be brought into line with international standards. A Statement on the issue released today by the Centre for Law and Democracy describes the wider needs and offers recommendations for reform.
Yemen: Comments on the Law on the Right of Access to Information, May 2012 (link to the Comments)
The Centre for Law and Democracy has conducted an analysis of Yemen’s new RTI law using the RTI Rating. The law’s strongest features include its broad scope and applicability and its strong promotional regime. At the same time, the law has important weaknesses, including the lack of proper recognition of the human right right to information and the absence of a public interest override.
UPDATE: July 2012
The RTI Law rated by CLD in the Comments above was amended prior to passage.
Click here for a translation of the Law as amended
Click here for an updated RTI Rating of the Yemeni Law
Click here for a Note outlining the Amendments
CLD published an analysis of the draft Somali Communications Act of 2012. The draft, which was prepared by the African Union/United Nations Information Support Team, at the request of the Minister of Information, Posts and Telecommunications, provides only a very framework set of rules for broadcasting, focusing instead largely on telecommunications. We understand that the idea is to adopt a full broadcasting law later on.
This study, conducted using the RTI-Rating, found significant differences between the overall strengths of the provincial laws, while concluding that all four had deficiencies. The province of British Columbia topped the rankings, scoring 97 points out of a possible 150, while Alberta came in last, with 80 points. CLD plans to apply the RTI Rating to all 14 Canadian jurisdictions – the federal level, the ten provinces and the three territories, all of which have adopted right to information laws – in order to provide a comprehensive picture of the situation in the country.
These Comments were prepared at the request of some of the participants in the ongoing discussions over Montenegro’s proposed RTI reforms. The Comments find that, although the draft Law improves the RTI appeals mechanism, problematic changes in the exceptions regime mean that the draft Law is hardly an improvement.
These comments on the constitutional proposals on freedom of expression, media freedom and the right to information were prepared by Toby Mendel of the Centre for Law and Democracy on behalf of the International Media Mission to Nepal. The Comments highlight the positive nature of the proposals, while also identifying shortcomings, in particular their failure to sufficiently limit the scope of permissible restrictions on these rights. By letter of 26 March 2012, the comments have been sent to a number of key stakeholders in Nepal, including the Prime Minister, the Deputy Prime Minister, leaders of the main political parties, and the Chair and key members of the Constituent Assembly.
A recent analysis by CLD of a draft right to information law for Egypt, prepared at the request of the group of civil society actors who developed the draft law, concludes that it largely reflects international standards, scoring 129 out of a possible total of 150 on our RTI Rating. The draft is particularly strong in terms of its wide scope, progressive requesting procedures, narrow regime of exceptions and extensive promotional measures. At the same time, the CLD analysis points to a number of ways in which the draft could still be improved, including a number of areas where clarification is needed, imposing overall time limits, say of 20 years, on exceptions and further bolstering the independence of the Information Commissioner.
The Centre for Law and Democracy has published its analysis of the draft Kenyan Freedom of Information Bill. The draft Bill has a number of strengths, including its wide scope, the narrow regime of exceptions and the establishment of an independent and powerful oversight body. A number of CLD’s recommendations are fairly technical in nature, and should be relatively uncontroversial to implement. It is hoped that the current process will finally bring to fruition the long-standing campaign for right to information legislation in Kenya.
Although the human rights situation in Iraq improved in the aftermath of the removal of Saddam Hussein, recent years have witnessed a troubling erosion of the fundamental freedoms which the new constitution was meant to have established. This report examines five pieces of legislation (one of which has already been passed) which have the potential to negatively impact freedom of expression and the right to assembly, and contrasts the restrictions and regulations contained therein with constitutional and international human rights standards. CLD hopes that this report will bring attention to the problems with these laws, particularly with regards to the legislative proposals that are still up for debate.
The Open Government Partnership, a global transparency initiative jointly sponsored by US President Obama and Brazilian President Rousseff, must significantly improve its internal access to information policy to meet the standards it is advancing according to an analysis by CLD and Access Info Europe. Two months after its launch in September 2011, when 46 countries pledged to work towards greater openness, the OGP is struggling with its own transparency rules according to the expert analysis submitted as part of a one-month public consultation.
The Centre for Law and Democracy published an analysis of a draft Sri Lankan Freedom of Information Act. The draft Act was prepared by UNP Deputy Leader Karu Jayasuriya, an opposition Member of Parliament. Mr. Jayasuriya has been trying for some time, so far without success, to have this Bill introduced into Parliament. Although the draft Act is unlikely to move forward, it has generated important debate in Sri Lanka about this key human rights issue and is being discussed at a National Seminar on the right to information on 18 November 2011.
Comments on the draft Afghan Access to Information Law, November 2011 (link to the Comments)
The Centre for Law and Democracy has published its analysis of a draft Afghan Access to Information Law. The draft Law was created from two previous drafts, one prepared by civil society and one by government. The aim is to present a consensus version in the hope that this will help ensure that it becomes a legislative priority.
Note on the Pakistani NGO Draft Right to Information Act, 2010, October 2011 (link to the Note)
This Note contains comments by the Centre for Law and Democracy on a Draft Right to Information Act prepared by members of the NGO community in Pakistan. It provides recommendations for reform as relevant, with a view to helping to ensure that the NGO community can put forward a law which gives effect, as fully as possible, to the fundamental human right to information.
The draft Model Law for African Union Member States is being prepared by the Special Rapporteur on Freedom of Expression and Access to Information in Africa, in partnership with the Centre for Human Rights at the University of Pretoria. The African Commission on Human and Peoples’ Rights is calling for feedback on the draft Model Law and CLD, in partnership with the Egyptian Initiative for Personal Rights (EIPR), prepared these comments on it.
Towards a Presumption of Openness AfDB: A Long Way to Go: Comments by the Global Transparency Initiative on the Draft Policy on Disclosure and Access to Information of the African Development Bank, August 2011 (link to the Comments)(Link to the draft Policy)
The African Development Bank (AfDB) is currently holding consultations with interested stakeholders regarding the ongoing review of its 2005 access to information policy. As part that process, a new draft policy, the African Development Bank Group Policy on Disclosure and Access to Information, was posted on the Bank’s website in June 2011. The Global Transparency Initiative (GTI) is a global network of civil society organisations, which includes CLD, and which advocates for greater transparency at the international financial institutions (IFIs). GTI has provided these comments on the draft Policy. As the Comments make clear, the new draft is a significant advance over the existing policy, but still fall far short of better practice by other IFIs and certainly the GTI’s own standards, as set out in the Transparency Charter for International Financial Institutions: Claiming our Right to Know.
The parliament of Kazakhstan is preparing a right to information law, following on from years of discussion about this important issue. These Comments by CLD analyse the most recent draft, noting that it has a number of important positive features, but also highlighting some significant shortcomings, such as the lack of an oversight body and an overbroad regime of exceptions.
ADB Public Communications Policy Working Paper, July 2011 (link to the paper)
This paper, entitled Missing an Opportunity to Take the Lead, offers comments on the Asian Development Bank’s communications policy. It was prepared by CLD Executive Director Toby Mendel and Nepomuceno Malaluan,
Co-Director of the Institute for Freedom of Information.
A Journalist Protection Law, prepared by the Iraqi Syndicate of Journalists and endorsed by the government of Iraq, has been laid before the Iraqi Parliament for its consideration. This Note by CLD notes that the draft Law includes a number of important protections for journalists. But it defines a journalist as a member of the statutory Syndicate of Journalists, the same body which drafted the law, and also grants a number of powers exclusively to the Syndicate.
One of the first priorities of the new Tunisian High Commission for the Realisation of the Objectives of the Revolution and Democratic Transition has been to prepare a new press law to replace the repressive 1975 law that has been used for over 30 years as a mechanism of control. Unfortunately, despite its name, the draft Press Law released by the Commission in March 2011 fails to deliver on the goals of the revolution. These Comments by CLD highlight a number of both strengths and weaknesses in the draft Law.
UPDATE: The Tunisian government has since published a new draft, available in Arabic here
In January 2011, the Mongolian Ministry of Justice submitted to Parliament a Draft Law of Mongolia on Information Transparency and Freedom of Information. This is the latest development relating to ongoing discussions around adopting a right to information (RTI) law that have been taking place in Mongolia for many years now. This Comment by CLD highlights a number of both strengths and weaknesses in the draft Law.
UN Human Rights Committee: Note on Draft General Comment No. 34 on Article 19 of the ICCPR (Upon Completion of the First Reading by the Human Rights Committee), January 2011 (link to the Note) (link to draft Comment)
In November 2010, the UN Human Rights Committee published draft General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights (ICCPR). When it has been adopted, the new General Comment will replace an earlier Comment on Article 19, adopted by the Committee in 1983. As part of a process of public consultation, the Committee was seeking submissions on the draft Comment until 31 January 2011. CLD has prepared a Note detailing its recommendations for the draft.
In August, a draft right to information law being prepared by the Spanish authorities was leaked to the press. The government has not been forthcoming with an official draft since that time. In the meantime, CLD has reviewed the draft Law and its analysis and recommendations are contained in these Comments.
Securing the People’s Right to Information: ADB Must Do More: Comments by the Global Transparency Initiative on the Second Consultation Draft of the Public Communications Policy of the Asian Development Bank, 26 December 2010 (link to the Comments) (link to draft Policy published in November)
Following on from its Comments on the ADB’s existing Public Communications Policy (PCP) policy, published in April 2010, and Speaking Notes on the first draft of the new policy, published in June 2010, CLD, working with the Access to Information Network (ATIN) of the Philippines, prepared detailed Comments on the second draft policy on behalf of the Global Transparency Initiative (GTI).
Slovenia adopted a new Radio and Television Corporation of Slovenia Act on 20 October 2010, replacing a 2005 law adopted by the opposition party when it was in power. The Act will be the subject of a national referendum on 12 December 2010, in which the Slovenian public is being asked to either uphold it or call for it to be revised. CLDs analysis assesses the Act against international standards, with a particular focus on issues which have been a matter of debate locally.
Pakistan adopted a Freedom of Information Ordinance in 2002 which remains in effect. In April 2010, the Constitution of Pakistan was amended to provide for a right to information and there have, as a result, been various attempts to introduce new right to information legislation. These Comments are based on a July 2010 draft Right to Information Law was moved in the National Assembly of Pakistan by MP Sherry Rehman.
In 2008, the Maldives ratified a new constitution that enshrined the right to access any information held by government. The Maldives is in the process of preparing legislation to give effect to these guarantees. These Comments relate to the draft Right to Information Act that was tabled in the Majlis (legislature) in November 2009.
Securing the People’s Right to Information: Will the ADB Rise to the Challenge? Speaking Notes by the Global Transparency Initiative on the June 2010 Consultation Draft of the Public Communications Policy of the Asian Development Bank, 14 June 2010 (link to the Speaking Notes) (link to the draft Policy published in June)
Following on from its initial consultation inviting submissions on its existing information disclosure policy, the Asian Development Bank (ADB) issued a first draft of its new policy on 2 June 2010. Due to the fact that this draft was very close to the existing policy, on which the Global Transparency Initiative (GTI) had already comments, a decision was made simply to produce Speaking Notes for groups participating in the ADB consultations. CLD, working with the Access to Information Network (ATIN) of the Philippines, prepared the Speaking Notes on behalf of the GTI, of which both CLD and ATIN are members.
Comments on the Proposed Constitution of the Kyrgyz Republic, May 2010 (link to the Comments) (link to the version of draft Constitution analysed)
After the overthrow of the Government of Kyrgyzstan in April 2010, the Interim Government quickly published a draft Constitution, which was ultimately put to a referendum on 27 June 2010. These Comments relate to the freedom of expression provisions in the draft Constitution.
The Bermudan government first released a Consultation Draft of the Public Access to Information Bill of Bermuda in October 2009 for public comment. A revised draft was released on May 2010, and this Statement relates to that draft.
The Thai Computer-Related Offences Commission Act was adopted in July 2007 and, since that time, has been used extensively to prosecute various offences, including the dissemination of information over the Internet. This Analysis describes the main provisions in the Act and assesses the first three years of implementation as against international and constitutional standards.
In Mongolia, the Special Advisor to the President prepared a draft Law on Freedom of the Press to replace the skeletal 1997 Law on Freedom of the Media, which contains only four provisions. A draft of the Law was released for public input and CLD provided these Comments as part of that process.
Securing the People’s Right to Information: Will the ADB Rise to the Challenge? Comments by the Global Transparency Initiative on the Public Communications Policy of the Asian Development Bank, 15 April 2010 (link to the Comments) (link to 2005 Policy analysed)
In mid-February 2010, the Asian Development Bank began a review of its Public Communications Policy, which was adopted about five years earlier, in September 2005. The first stage of the review was to solicit initial comments on the existing policy. CLD, along with the Access to Information Network (ATIN) of the Philippines, prepared these detailed Comments on the existing policy, on behalf of the Global Transparency Initiative (of which both CLD and ATIN are members).
A group of civil society organisations are working to prepare right to information legislation in Paraguay. They asked CLD to provide an analysis of their draft against international standards in this area, so as to ensure that it met international standards, as far as possible.
In Sierra Leone, civil society groups have been working with the government to prepare an access to information law. The working group asked CLD to comment on the Bill, with a view to helping them ensure that the law they put forward conforms as far as possible to international standards.
Comments on the Media Regulations for the 2010 Elections for the Iraqi Council of Representatives, January 2010 (link to the Comments) (link to the Media Regulation) (link to the Media Regulation, VRU Period)
These Comments provide an analysis of two sets of draft regulations governing the media adopted by the Iraqi election commission in advance of the second set of elections for the Council of Representatives (parliament). They were prepared as part of UNDP’s support for the democratic election process.