Centre for Law and Democracy

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. It is a positive step that the government has published official draft legislation with a view to obtaining public comments on it.

“The draft provides a good basis for discussion about this key issue,” said Toby Mendel, Executive Director of CLD. “But it could still be improved in important ways to give fuller effect to the right to information.”

Click here for the Comments
Click here for the draft Law

CLD’s Comments make a number of recommendations to improve the draft law, including the following:
• The law should apply to all information held by public authorities, not just information which is needed to protect a right or improve a public service.
• The scope of information subject to proactive disclosure should be expanded to cover more information about finances and implementation of the law.
• The procedural rules should be substantially revised to make it easier to make requests and to streamline processing of those requests.
• The access to information law should prevail in case of conflict with secrecy laws, and the regime of exceptions should be narrowed by subjecting all exceptions to a requirement of harm and by adding a public interest override.
• The independence of the oversight commission should be strengthened and its powers enhanced.
• Sanctions for the wrongful disclosure of information should be replaced by protection for those who disclose information in good faith.

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.

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. A Submission released today by Centre for Law and Democracy (CLD) spells out in the detail the nature of these problems, and how Quebec’s legal framework for access to information needs to be changed to bring it into line with international standards in this area.

Click here to read the Submission

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.

“Previous studies carried out by CLD have found significant problems in every jurisdiction in Canada,” said Toby Mendel, Executive Director of CLD. “But even in this weak peer group Quebec is noticeably deficient. We urge the Government of Quebec to seize this opportunity to take action to put a stop to the culture of secrecy and the harm it engenders.”

The 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 Centre for Law and Democracy (CLD) and International Media Support (IMS) today released Comments on the draft Printing and Publishing Enterprises Law (draft Law) released by the Ministry of Information of Myanmar in early March 2013. In August 2012, the Ministry tasked the Interim Press Council with preparing a draft Press Law, and the release of the draft Law by the Ministry came as a surprise to many observers. As the Comments make clear, the draft Law fails in important ways to conform to international standards regarding media freedom.

Click here to read the Analysis

“The important steps Myanmar has taken over the last year and a half to bolster respect for freedom of expression in practice now need to be anchored in a democratic legal framework,” said Toby Mendel, Executive Director of the Centre for Law and Democracy. “The draft Printing and Publishing Enterprises Law, the first draft media law to be formally published by the government, fails to do this.”

The CLD/IMS Comments make a number of recommendations, including the following:
➢ Consideration should be given to doing away entirely with the system of registration for publishers, printers, news agencies and imported publications.
➢ If registration is retained, it should be limited in scope, not involve onerous procedures and be overseen by an independent body.
➢ Any restrictions on the content of what may be published in the media should be in line with international standards and the Ministry of Information should play no role in applying these rules.

We urge the Myanmar authorities to allow the Interim Press Council to complete its work of preparing a draft press law, and then to hold discussions on legal regulation of the print media based on that draft.

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.

Click here to read the Submission

“The IMF recognises the importance of transparency in its documents,” said Toby Mendel, Executive Director of CLD. “But it fails to give proper effect to this in its policy; the new policy needs to establish a proper presumption of disclosure with a full regime for making requests for information.”

The current IMF Transparency Policy is essentially a list of the documents that the IMF is committed to releasing proactively. Even for this list, the Policy grants extensive veto powers to States regarding information which relates to them. The Policy does not provide for any system for making requests for the vast majority of the information it holds. It also lacks other key elements of a proper presumption of disclosure system, such as a limited, harm-based system of exceptions and a right of appeal to an independent oversight body.

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

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

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

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

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

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

Click here to read the Letter

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

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

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

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

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

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

Click here to read the Analysis

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

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

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

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

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

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

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

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

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

Click here to read the Letter

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

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

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

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

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

Click here to read the Response

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

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

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

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

Click here to read the letter to Prime Minister Bhattarai

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

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

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

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

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

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

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

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

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

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

Click here for the Analysis

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

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

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

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

Click here to read the Submission

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

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