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Maldives: Failing to Protect Journalists

Coat_of_arms_of_Maldives.svgThe 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

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100 RTI Laws: Much to celebrate but still a long way to go

cropped logoSweden 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

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Civil Society Calls for Transparency at European Investment Bank

European_Investment_Bank_(emblem)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

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Canada: Bold Action Needed on Open Government

W. Lloyd MacKenzie, via Flickr @ http://www.flickr.com/photos/saffron_blaze

W. Lloyd MacKenzie, via Flickr @ http://www.flickr.com/photos/saffron_blaze

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

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Kenyans Deserve a Robust Right to Information System

900px-Flag_of_Kenya.svgCLD 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

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Congo: CLD Urges Speedy Passage of Right to Information Law

800px-Dem_congo_satCLD 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

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Morocco: CLD Urges Government to Improve Draft RTI Law

Flag_of_Morocco.svg_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

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Report on Surveillance and International Standards Launched

Screen Shot 2014-08-13 at 7.35.07 PMThe 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

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CLD Calls for Bold Improvements to Newfoundland Access Law

Photo by Aconcagua

Photo by Aconcagua

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

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Myanmar: Media Lawyers Agree to Form Network

Flag_of_Myanmar.svgEarlier 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

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Draft Bangladesh Law Allows Government Control Over NGO Funds

Image by Souvik.arko

Image by Souvik.arko


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

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UNEP: Practice What You Preach

Picture by Neil Palmer (CIAT)

Picture by Neil Palmer (CIAT)

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

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East Timor: Media Law Raises Serious Concerns

900px-Flag_of_East_Timor.svg-2In 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

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Hungary: Stop Harassing Civil Society

Image by tisza_

Image by tisza_

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

——————————————-
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.

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Letter Calling for the Release of Pierre-Claver Mbonimpa

Pierre-Claver MbonimpaCentre 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

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Short Notes Outline International Standards on Criminal Content Restrictions

Ali-AnouzlaIn many countries, criminal restrictions on the content of what may be published or broadcast seriously undermine respect for the right to freedom of expression. Often they ban far too much speech in the first place while in other cases they are drafted in vague terms which render them susceptible of overbroad application. The Centre for Law and Democracy (CLD) is today releasing a set of short Notes on international standards for criminal restrictions in five key areas, with the aim of helping interested stakeholders better understand the issues involved.

Click here for the Note on Alternatives to Criminal Rules (in English) (in Arabic)
Click here for the Note on Defamation (in English) (in Arabic)
Click here for the Note on Hate Speech (in English) (in Arabic)
Click here for the Note on National Security and Terrorism in (English) (in Arabic)
Click here for the Note on Privacy in (English) (in Arabic)
Click here for the Note on Protection of the Sacred and Blasphemy (in English) (in Arabic)

The Notes were prepared for the workshop: Toward Media Regulatory Reform in the Middle East and North Africa: Workshop on Criminal Restrictions on Media Content. The event – which brought together experts from across the region in Beirut, Lebanon, from 24-25 April 2014 – was hosted jointly by CLD, International Media Support and Maharat Foundation. The Notes discuss major issues and international standards in five key thematic areas, namely defamation, hate speech, national security, blasphemy and privacy.

“The Middle East and North Africa is going through a tremendous transition, as a range of local actors, including media outlets, civil society and increasingly political players are demanding legal frameworks which conform to international human rights standards,” said CLD Executive Director, Toby Mendel. “The purpose of these Notes is to provide these actors with a clear, concise statement of relevant international standards in the area of criminal content restrictions.”

Despite recent improvements, the Middle East is among the world’s worst regions in terms of respect for freedom of expression. Although the Notes focus on issues which are of particular relevance in that region, the standards they outline are derived from international law and are, as a result, applicable everywhere in the world.

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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Newfoundland Needs Strong Whistleblower Protection

Kings_Cove_Head_Lighthouse1Newfoundland and Labrador’s government has introduced a bill to protect those who expose serious wrongdoing and threats, i.e. whistleblowers, but is seeking to maintain a veil of secrecy around the Cabinet, even in the context of potentially criminal behaviour. The exception for cabinet documents was one of the key problems identified in an analysis released today by the Centre for Law and Democracy (CLD).

Click here to read the Analysis
Click here to read Bill 1

Newfoundland and Labrador is one of only two provinces in Canada which has still not adopted legislation to protect whistleblowers. Bill 1 aims to rectify that problem, but it has important shortcomings.

“Blowing the whistle on acts of corruption or mismanagement is an incredibly brave act, which can expose employees to serious personal and professional risks,” said Toby Mendel, Executive Director of CLD. “Governments need to put in place robust legal regimes to protect people who disclose information for the public good.”

Other major problems identified in the analysis include:
➢ It is limited to employees in the public sector, whereas better practice, for example as reflected in the UK’s Public Interest Disclosure Act, covers the private and voluntary sectors as well.
➢ It only protects disclosures to the Citizens’ Representative, an ombudsman, instead of recognising that in some cases public disclosures are needed.
➢ It is limited to wrongdoing committed after the law comes into force.
➢ It provides insufficient protection to whistleblowers.

CLD calls on Newfoundland and Labrador’s House of Assembly to review the Bill in light of our analysis and to amend it to bring it into line with better practice both across Canada and internationally.

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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EU Expression Guidelines Fail to Recognise the Right to Information

Flag_of_Europe.svgOn 12 May 2014, the Council of the European Union adopted the EU Human Rights Guidelines on Freedom of Expression: Online and Offline (Guidelines). The initiative to adopt the Guidelines, which provide “political and operational guidance” to EU staff regarding this important area of EU foreign policy and assistance, is welcome.

At the same time, there are certain problems from the perspective of freedom of expression in the Guidelines. It is, in particular, very problematical that the Guidelines fail to recognise the right of the public to access information held by public authorities as an element of the right to freedom expression and as an operational priority for the EU.

This omission seriously undermines the effectiveness of the Guidelines. The right to access information held by public bodies, or the right to information, has been recognised unequivocally at the international and European level, including by the United Nations Human Rights Committee and the European Court of Human Rights, as well as by regional human rights bodies including the African Union and the Organisation of American States. It is not clear why such an important aspect of the right to freedom of expression – an area in which the EU has been active – should have been entirely left out of the Guidelines.

Paragraph 14 of the Guidelines recognise that, in certain circumstances, human rights outcomes may “be assisted” by the disclosure of information held by the State and that this “can serve to promote justice and reparation”, but they fall short of recognising a right to information. The Guidelines also largely fail to recognise promotion of the right to information as a priority area for action, although paragraph 32 does call for support for the adoption of freedom of information laws.

A further concern is that a document of this importance should have been the subject of an open and meaningful process of consultation before it was finalised. Instead, only limited and essentially internal consultations took place. While internal consultations are an appropriate part of the process, the Guidelines should have been the subject of an open public consultation before being adopted in a final version. At a minimum, this would require a formal draft version of the Guidelines to be posted online, with an opportunity for stakeholders to provide comments.

We do not believe the Guidelines are complete without a clear reference to the right to information and a strong commitment to priority action in this area. We therefore call on the relevant EU actors to reconsider the Guidelines with a view to addressing these concerns. Alternatively, we call on the EU to adopt a dedicated set of guidelines on the promotion of the right to information as an element of freedom of expression.

Signatories:

ARTICLE 19
Centre for Law and Democracy
European Federation of Journalists
Free Press Unlimited
Global Forum for Media Development
Index on Censorship
International Media Support
Internews – Europe
Vivarta

For further information please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
Mob: +1 902 997-1296
Office: +1 902 431-3688
www.law-democracy.org
Twitter: @law_democracy
Skype ID: toby-mendel

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BLOG: Think Tanks and the Right to Information

Originally posted on the Transparify blog by Michael Karanicolas, Legal Officer, Centre for Law and Democracy. Views expressed here represent those of the author, and do not necessarily represent those of the organisation.

The right to information is internationally recognised as a human right which lies at the core of democratic accountability. Since State institutions are funded by public money, it is only natural to expect that the people have a right to know how their resources are being spent. In a democratic society, access to information held by the government is vital to ensuring that the electorate is fully and accurately informed, and can properly engage in the decision-making process. The right to information also fosters trust in government, and promotes efficiency through robust public oversight.

The right to information is not limited to State institutions. International standards hold that the right to information should apply to any private organisations that receive State funding or perform a public function to the extent of that funding or function. It is clear that, where an NGO – a category that includes most think tanks – is substantially funded from a State budget, a duty of transparency should apply.

However, many think tanks and other NGOs are not supported by State funds, and here the question becomes more difficult. Most right to information laws do not apply to NGOs, but there are exceptions. Indonesia’s Public Information Disclosure Act applies to NGOs which receive funding from public donations or from foreign sources, as well as any that receive money from the State budget. South Africa’s Promotion of Access to Information Act, 2000 allows for requests to any private organisation, including NGOs, if the information is required for the exercise or protection of any right. Sierra Leone’s Right to Access Information Act, which was passed in late 2013, includes a similar provision.

Several countries also impose additional transparency requirements on organisations which claim charitable status. This makes sense as charitable status is, in essence, a tax subsidy provided by the State.

Transparency is generally a good thing. However, there are legitimate reasons why NGOs may be wary of these requirements. For one thing, many smaller or developing world organisations lack the resources to respond efficiently to access to information requests, particularly if their records are not digitised. Another issue is that NGOs will sometimes require a certain amount of space to operate. Advocacy strategies, for example, will often need to be kept under wraps in order to ensure their efficacy. Although it is conceptually dangerous to start expanding the legitimate limits of exceptions to the right to information, these ideas require development to be properly applied to the NGO sector.

But beyond the legal requirements of what NGOs must publish, there are legitimate operational reasons to want to push more information into the public domain. If an NGO seeks to pressure governments or corporations into being more transparent, while simultaneously guarding the secrecy of its own documentation, it runs the risk of being labelled a hypocrite.

Good advocacy means practicing what you preach, even if this may lead to some operational difficulties. Strictly speaking, the right to know does not generally extend to information that is held by NGOs. But if an NGO seeks to be an effective voice for transparency, it may need to lead by example.

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International Mandates: Universality and Freedom of Expression

joint-statement1-300x117Today, the 17th annual Joint Declaration by the four specialised mandates tasked with promoting and protecting freedom of expression at the UN, OAS, OSCE and African Commission was launched in Paris, France. This latest Declaration, prepared with the assistance of the Centre for Law and Democracy and ARTICLE 19, highlights issues relating to the universality of the right to freedom of expression.

Click here to read the Joint Declaration in English
Click here to read the Joint Declaration in Arabic
Click here to read the Joint Declaration in French
Click here to read the Joint Declaration in Russian
Click here to read the Joint Declaration in Spanish

“The universality and inter-dependence of all human rights has long been recognised by international bodies, including the United Nations,” said Toby Mendel, Executive Director of CLD, who participated in the launch event. “But this is the first time that a statement has been adopted highlighting the specific attributes of universality in the context of the right to freedom of expression.”

The Joint Declaration focuses on two related aspects of universality in relation to freedom of expression, namely the right of all individuals and groups in society to enjoy this foundational right and the illegitimacy of imposing restrictions on freedom of expression which seek to impose the traditions, culture and value of dominant groups on others. To achieve these ends, the Joint Declaration recognises that certain laws, customs and practices may need to be modified or even eliminated.

Some of the other key points made in the Declaration include the following:
• States should put in place positive measures – including the promotion of public service broadcasting and community media – to ensure that all individuals and groups in society can enjoy the right to freedom of expression.
• States have little or no power to restrict certain types of speech, most importantly political speech.
• Laws which restrict speech to protect religions, which prevent minorities from speaking out about issues of concern to them or which provide special protection to officials and State symbols are illegitimate and should be repealed.
• The international community should do more to promote dialogue and debate about the universality of freedom of expression.

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

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