Freedom of Information Essential for Development
Article 19 of the Universal Declaration of Human Rights guarantees freedom of expression. Mr. Toby Mendel, Law Program Director of the international human rights organization, ARTICLE 19 Global Campaign for Free Expression, was invited by the World Bank to address a training seminar at the Ministry of National Assembly-Senate Relations and Inspection (MONASRI). The World Bank Newsletter had the opportunity to interview him
Q. Please tell us about Article 19.
Article 19 is the article of the Universal Declaration of Human Rights that guarantees the freedom of expression. It was passed in 1948 by the United Nations General Assembly as a resolution. It is really the flagship statement of international human rights. Today, the article has binding status on all States as customary international law. The guarantee of freedom of expression is quite brief, but it guarantees our right to receive and impart information and ideas.
Q. What do you mean by freedom of expression?
I think most commonly when we think of freedom of expression, we think about the right to speak without interference from the government. But it also protects the rights of the listener, the rights of citizens to seek and receive information, including the right to approach government, to approach public bodies to ask them for information. In this sense, the right places an obligation on public authorities to provide information to citizens.
This aspect of the right is considered to be a foundational democratic right for several reasons. A government holds information not for itself, but on behalf of citizens, and citizens should be able to access that information. It is important to be able to hold the government accountable. If we don’t know what the government is doing, we cannot hold them accountable for it. Freedom of information is also a very important tool for exposing corruption. Freedom of information laws has been used to great effect in different countries to expose corruption in government.
It also very important to focus on democratic participation, not just at the level of voting. If you don’t know what
the government is doing, and if the government operates in secrecy, then you cannot really exercise your vote effectively. To get effective participation in public activities you need freedom of information, for example even at the level of your local school and local development activities. So in that sense, access to information is also a foundation of democratic rights.
Q. Could you tell us how many countries in the world have a freedom of information law?
Around 70 countries in the world have adopted such laws and around another 50 countries are looking at them.
And of course, Cambodia is one of them. The MONASRI has officially been tasked with developing a policy paper on freedom of information and legislation in this area. I think it is very important for Cambodia that it moves in the direction to have such a law one day.
Q. Passing laws may seem a good thing, but the concern is to have good laws, and to implement them.
Yes, I agree. For freedom of information, as in any area of law, it will not be enough just to have a law. You need to have a good law, and we can identify two key features of a good law. One feature is that the law is well-adapted to the problems and local social and cultural reality in Cambodia. Another feature is that it be good in the sense of being effective in securing the information rights of the people.
Under international law we can identify four main features of laws which are good in the second sense. First, the law should establish a broad right of access to information that applies to everyone, to all public bodies – to the executive, legislative and judicial branches of government – and to the private sector where it carries out government projects or public functions.
Second, the law should provide clear procedures for realizing the right, for example, how an individual can make a request for information, how quick the process is, what fee they are going to pay if there is any charge, what citizens should be told if their request is refused, what information must be given at this point. Third, the law should establish exceptions: the right to information is not an absolute right to access all information.
For example, some information is secret for reasons of national security and this should be set out very clearly. Fourth, the law should establish the right of appeal in cases where you ask a public body for information and they refuse to give it. If this happens, you should be able to take your case somewhere else which should be independent, for example, an information commissioner who can process your appeal quickly and at a minimum of cost. And if that body thinks the refusal was not justified, then they should be able to make an order for the information to be disclosed.
Q. In poor or developing country it is very hard to adopt international standards because most infrastructure has been destroyed It could be argued that the international standards you have outlined can only be applied in developed countries. How do you react to that argument?
Well, I would strongly reject that idea, to be honest. It is certainly true that developed countries where the first group of countries to adopt such laws. But I mentioned earlier that around 70 countries have passed freedom of information laws; they range from the poorest, developing countries to the developed countries, for example, poor countries like Peru, India, and Angola. So it is really false to say that the law is just for developed countries. Access to information is just as important for developing countries.
Q. What do you see in Cambodia in terms of freedom of information?
I think Cambodia faces a number of challenges. We are talking primarily about the right of access to information from public authorities. I mentioned earlier that Cambodia doesn’t have a law. Without a law you don’t have that right and that is a very serious problem. In the wider field of freedom of expression there are also a number of problems in Cambodian law.
In relation to access to information, you have very broad regime of secrecy here. Some secrecy is necessary; some information ought not to be provided to the public because it can cause harm to the country. But your public authorities in Cambodia keep secret a much wider range of information than is necessary based on objective considerations. I think there is strong culture of secrecy within the government and the practice of secrecy within government needs to be addressed.
Q. Are there some priorities for improving freedom of information and expression in Cambodia?
The first step is to put in place a better legal framework for freedom of expression. As noted above, you need a freedom of information law. Criminal restrictions on freedom of expression, like the defamation law and a prohibition on spreading false news, should be comprehensively reviewed and those that are not in line with international standards in this area should be revised or repealed. The system for regulating the media also needs to be comprehensively reviewed. As noted above, regulatory bodies should be independent of government and this is not yet the case in Cambodia.
In many cases, the regulatory system is far too intrusive. Many democracies, for example, do not even have a press law. The second step, which in many ways is more challenging, is to implement this framework. This requires political will and a certain democratic approach. For example, officials must accept criticism; this is inherent in a democracy. As such, they should refrain from brining defamation cases just because they do not like what has been written about them. Instead, they should respond to criticism. Officials should also let regulatory bodies do their work without trying to influence them. These are difficult steps but they are also key to freedom of expression.
Q. We often hear that when the media try to get information about corruption, or the budget, the sources sometimes say this is a sensitive issue that they can’t provide. How do you react on that point?
Well, you haven’t given me a specific example, so it is difficult to respond. But generally speaking, when the government makes those kinds of claims, they are often coming from a perspective of non-openness and making assumptions about what will happen if they were more open. For example, in relation to corruption, there is a concern that talking openly about it to the media may have a negative impact on foreign investment. But, fundamentally, investors of the business community have a good sense of how much corruption there is in Cambodia, because they deal with it. Investors and foreign investors are much more confident with the situation where things are open, which can help address the problems of corruption.
Q. How would you sum up your view of Cambodia in relation to freedom of information and freedom expression?
We have talked a little about the challenges Cambodia is facing in these areas. They are real and significant. I am confident that working together the Cambodian people can get access to information and join the community of truly democratic countries. I am looking forward to observing that process and also perhaps playing a small role in it.
(Source: The World Bank Newsletter, Volume 5, Number 1, January 2007)
December 26th, 2008 at 3:44 pm
I hope the news in Cambodia will be spread out widening and people can read acknowledge the thing happens in our own country.