Problems and Challenges
By khlok dara
Head of human rights and arbitration project
Project Management Unit (PMU)
Council for Legal and Judicial Reform
Abstract
This study will discuss on what is the freedom of information and a brief history of the in the international framework and in the context of Cambodian legal framework. In this first chapter the study will focus on the issues happened concerning to the freedom of information in the society and politic of Cambodia. In the study of these problems of the freedom of information in the context of Cambodia, We will discuss and brief analyze the effect of the problems what are the cause of the freedom of information in the Cambodian society especially in the public institution. At the end of the study, this research will see the way forward of the Royal Government of Cambodia in performing their obligation to ensure the freedom of information in order to combating the corruption and setting up the principle of transparency, accountability, responsibility, democracy, and human rights protection according to the legal and judicial reform strategy. Along with this, the study will also focus on the challenges in the future in promoting and strengthening the protection of freedom of information by briefing the forming of Working Group on freedom of information of NGOs and civil society in advocating and lobbying government to draft the law on freedom of information.
I- Introduction
In general, both of human being and animal need the food for feed. Therefore food is very important for all both human being and animals for survival, but human being need another one beside the animals. It is the information happened around the body and inside and outside the community. The information is very important for human being to know and understand the social and development information.
In the democratic country, the human rights have to be respected according to the Universal declaration of Human Rights of the United Nations[1]in which there are some fundamental rights and freedom such as freedom of expression, freedom of association, freedom of opinion, freedom of information, and so on.
It is very important to study on this topic on the freedom of information in the time because right now the freedom of information in Cambodia is a hot challenge of the non-governmental organizations and civil society to advocate the Royal Government of Cambodia to take an attention in reconsider to draft the law on the freedom of information in order to fight against the corruption which is the big problem of Cambodia to reach the goal of good governance, transparency, accountability and responsibility of the government state reform strategy. This study could be a small contribution for other researchers to deepen the freedom of information or in related field. And also it could be a beginning point for both government and civil society to see the problems and challenges for reforming laws and judiciary especially the freedom of information that is very most fundamental rights of the people.
In the chapter following we will study on the legal framework of the freedom of information and then discuss on the political and social problems. In the next chapter, we also discuss on the challenges of the Royal Government of Cambodia and non-governmental organizations and civil society in creating the law/regulation of freedom of information and we also study the way forward of government position and NGOs and civil society in reforming the legal and judicial reform in order to get the freedom to access to both private and public information.
II- freedom of information and Legal Framework
Freedom of information is a fundamental right. A freedom of information law provides citizens a legally enforceable right to access information regarding matters of public concern held by governments, public authorities, and in some cases private bodies and companies.
1- Freedom of Information and International Law
Freedom of information was recognized by the world nations in the article 19 of the Universal declaration of Human Rights of the United Nations [2]" Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers".
Furthermore, The United Nations stipulated again in the important international norms of the International Covenant on Civil and Political Rights (ICCPR) in the article 19. This article said: [3] " (1) Everyone shall have the right to hold opinions without interference, (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice, (3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals".
According to the fundamental rights and freedom of all citizens in this Declaration and according to the nation member of the United Nations, countries throughout the world, including in Asia, are passing freedom of information laws in order to encourage government accountability to citizens, combat official secrecy, promote democratic principles and fight corruption. On a global scale, government, private, civil society and media stakeholders are joining together to advance the common goal of facilitating access to information that is in the public interest[4].
Furthermore, Article 13 of the International Treaty on Fighting against Corruption stated that: Each State party shall undertake measures to promote participation of actives individuals, civil society group and NGOs in fighting against corruption. These measures includes: the promotion of transparency, public participation in decision making, procedures to provide public with effective access to information, public access to information for the purpose of abolishing corruption, and the promotion of publications against corruption[5].
2- Cambodian Legal Framework
After the free and fair election sponsored by the United Nation Transitional Authority in Cambodia in 1993, the Kingdom of Cambodia is a democratic country. To complete the principle of democracy and human rights protection, Cambodia clearly defined in their constitution the protection and respect of human rights and freedom according to the international standard. The chapter III of the constitution of the second kingdom of Cambodia[6] defined clearly the individual rights and freedom and the duties of the people especially in the article 31 of the chapter III recognized the international covenant, treaty, universal declaration of human rights, and so on. The Article 31 said[7]-
The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of human Rights, the covenants and conventions related to human rights, women's and children's rights.
Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, birth origin, social status, wealth or other status.
The exercise of personal rights and freedom by any individual shall not adversely affect the rights and freedom of others. The exercise of such rights and freedom shall be in accordance with law.
According to the strong commitment of the Royal Government of Cambodia and because of the kingdom of Cambodia is a state party in the Universal Declaration of Human rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) in 1992, the new constitution of the second kingdom said clearly in the article 41 that " Khmer citizens shall have freedom of expression, press, publication and assembly. No one shall exercise this right to infringe upon the rights of others, to affect the good traditions of the society, to violate public law and order and national security. The regime of the media shall be determined by law"[8].
Furthermore, some of the freedom was also recognized in the Law on the Regime of Press adopted on September 1, 1995 in the first mandate of the national parliament. In the Law on the Regime of the Press, Article 15 said[9]:
“A. Generally
The Press has rights of access to information in government held records, except for any information that causes:
Harm to national security;
Harm to relations with other countries;
Invasion of the privacy rights of individuals, including personal files of officials, medical files, and confidential official files and materials;
Expose trade secrets, confidential financial information obtained from any individual or legal entity, and information related to the regulation and supervision of financial institutions;
Affect the rights of any person to a fair trial;
Danger to public officials carrying out the law or their duties.
B. Request for Information
Requests for information shall be made in writing and specify clearly of the information which is requested to the institutions.
Competent official who governs such institution shall respond in writing to the request within 30 days. If the request is denied in whole or in part, reasons for such denial shall be indicated clearly in writing. “
It was said clearly about the freedom of information that allows the journalist to access to information in the public sector. It also provided the procedure of how to get the public information to facilitate for the journalist to get the information, but there are still missing articles for the journalist to know when the public documents or public records have to keep in secret. There is no mechanism to appeal for the misconduct of the government officials in receiving the information and also there are not regulations to stipulate the freedom of people to get or know the public information such as the investment contract, expenditure of national budget, public documents so on. In the chapter following, we will see the problems of the freedom to access to information.
III- Problems
Cambodia passed many political regimes. Each of the political regimes did not have the policy of openness for the public to know some thing they want to get. They do not permit the people to know the information of national management, policy even the laws or regulations of government. The situation became worst when the Cambodia fall into the Kampuchea Democratic regime from 1975 to 1979 (Pol Pot's regime)[10]. In that time they were prohibited to get the information and express even the discussion among the family because they separated all the members of the family in category (children, men, women, elders, and so on). Their policy is that “Keep high secret, keep long live". It means that every people have to keep in silence even with the member family or among the husband or wife, if not it will be killed by the Khmer Rouge.
Until now the government still prohibited most of the public information. They believe that who got more information is meaning that they get more power. Freedom of information, specifically the rights to access information, the rights to seek the information, the rights to receive and impart ideas or information held by public authorities, is a rights in itself, a fundamental element of the rights to freedom of expression. It is also necessary for the fulfillment of all other human rights. Possibly, most importantly, it is vital to the proper functioning of a democracy.
Otherwise, even the government authority recognize all the universal declaration of human rights and all international covenants and treaty or conventions on the human rights protection of the United nations, the implementation of the that rights is still in difficult for the people to know or seek the information from the public authority. According to the survey in 2002[11], of the Center of Social development on the freedom of information for monitoring the possibility to access information of judicial and public institutions and finding out the implications of the people in that rights shown that people was very difficult to seek and receive public information than from the non-governmental organizations and civil society. The survey was held in 5 cities and provinces – Phnom Penh, Kandal, Preah Sihanuk, Takeo, Kampong Cham, and Battambang. The survey also focused on the judicial officials, lawyers, journalists, persons who had case in court, private companies, and non-governmental organizations and civil society.
Since free and fair election sponsored by United Nations Transitional Authority in Cambodia (UNTAC) 1993, the field of media develops very much. Today there are seven television stations, 17 radio stations and over 100 newspapers and magazines broadcasting and publishing in Cambodia according to report of the ministry of information. Furthermore today, the modern technology develop very much in Cambodia like telephone, internet, and so on, even there are a lot of means for accessing information, but Cambodian people are still very low in accessing information. According to the information from the World Source Institute Website[12] emphasized that the possibility to access information of the Cambodian people is very low comparing to the countries in Asia.
Access to information 1999-2002
Today according to the Project Management Unit report to the Council for Legal and Judicial Reform, the strategy for providing the access to legal and judicial information has been conducted as short and medium term priority for the legal and judicial reform, but there many more activities that the government have to do for improving the freedom to access information like the government have to promote the formation of law of information that said in the short term priority action to ensure all the people can access public information as well as the private and non-government al organizations and civil society information. If the government doesn't have the clear commitment to do this, the law on freedom of information can't be formed and permit the people access freely the public as well as private and NGOs information. Furthermore, if the government only said their commitment in paper therefore especially the public authority doesn't respect the freedom of information and the people can't seek or receive public information.
2- Non-governmental Organization and Civil Society Initiative
Freedom of information is crucial a number of agendas that are part of the discussion between government and donors in Cambodia: improving the quality of governance and public sector administration, the fight against corruption and legal and judicial reform. It is linked to a number of the broader issues relating to establishing a rule of law framework in Cambodia: the separation of powers and the notion that the exercise of power should be subject to legal restraints as enshrined in the Constitution; the idea that the executive should be subjected to scrutiny from the legislature, the judiciary and the general public.
Non-governmental organizations and civil society played a very crucial role in human rights protection especially the freedom of expression and freedom of information. In 2002 the Center of Social Development conducted a survey on the freedom of information in the aim of find out the implementation of public authority and court officials in conducting the freedom of information. Furthermore, most of NGOs tried their best to complaint the government on misconduct of freedom of expression especially the freedom of information to promote the government to open all information to be available for the public.
With the cooperation with the Article 19 Organization of the United Kingdom of Great Britain, there are many NGOs – especially PACT- formed a Working Group on Freedom of Information to promote the protection of freedom to access to information. They formed a draft on the freedom of information and organized one workshop on freedom of information which participated from many stakeholders like NGOs, members of National Assembly, government officials, United Nations of human rights representative, donor countries, and so on. Furthermore, in term of Working Group on Freedom of Information, all members of the Working Group met regular to find out the strategy to do for advocate and lobby the government to form a law on freedom of information.
The drafting on law on freedom of information of the NGOs and civil society must have the participation of the government side and private as well. Because according to the experience of the Indonesia, there are three kinds of law drafting on freedom of information – one by NGOs and civil society, two by national assembly, and three by government[21]. Until now these law drafting are not yet adopted because it is very difficult to make a decision what kind of law drafting should take.
V- Conclusion
In Conclusion, creating a culture of openness and transparency in government as well in NGOs and civil society and private sector is crucial to Cambodia's democratic development, in establishing a society that respect human rights under the rule of law. A freedom of information is an important first step as said in the short term priority of the legal and judicial reform strategy of the Royal Government of Cambodia in the strategic objective number III, especially in promoting a presumption of access to information held by public authorities. The freedom of information was took attention from all parties concerned – government, NGOs and civil society, donor countries- and was promoted and improves from time to time since the Paris Peace Agreement in 1991. They do a lot of thing to give the access to information to the people by creating the mass media like radios, televisions, newspapers, magazines, bulletins, internet access, telephone line, and so on. Until now both government and NGOs and civil society has been worked very hard to form the law drafting on freedom of information to promote and strengthen the protection of human rights, private rights especially the freedom to access information.
However to reach that goal and the protection of private rights and freedom of information, government should do many things such as:
- Reform the bureaucracy in the work place,
- All stakeholders relevant – government, private sector, non-governmental organizations and civil society, and mass media have to joint together to advance the common goal of facilitating access to information and work together to promote and advocate the law drafting on freedom of information,
- Establish, improve, and strengthen the desk reception of each government institutions to facilitate public to seek, receive and impart public information, records, contract, and so on,
- The government must reduce the corruption in the public sector that is a key cause in violation of human rights especially the freedom of expression and information
- Establish the culture of transparency in government as well as in NGOs and civil society and private sector because to day it is very difficult for the pubic to access information in all sectors especially in the public sector. They don't want give the information to the public even the laws or regulations.
- All stakeholders relevant should establish certain processes: (1) detail of regulars on how to request information, (2) deadline for receive information, (3) mechanisms for assistance in information seeking process, and (4) rules on the requirement of written documentation in the event of refusal of information
References
Constitution of Cambodia
Law on the regime of Press of Cambodia adopted in 1995
Universal Declaration of Human Rights (UDHR)
The office of the high Commissioner for Human Rights, Website: Library of Human Rights of University of Minnesolta, Website:, http://www1.umn.edu/humanrts/instree/b3ccpr.htm
PACT/Cambodia, Website: http://www.pactworld.org/programs/country/cambodia/cambodia_app_story1.htm
Website: http://www.cambodia.org/facts/constitution.html#ChapterIII
Law on the regime of press that unofficial translated by the Cambodian law website, http://www.ifrance.com/cambodialaw/
Mrs. Chea Vannath, Director of Center of Social Development, speech in the workshop on the Freedom of Information on June 23, 2004 in Sunway Hotel
This survey did not yet officially publish the repot. This information gets from the Center of Social Development.
Website: http://earthtrends.wri.org/text/environmental-governance/country-profile-31.html
Miss Saku Akmeemana, office of the high commissioner for human rights, speech in the workshop on freedom of information on June 23, 2004 in Sunway hotel in Phnom Penh in Cambodia
Draft of report of workshop on freedom of information held in Sunway hotel in Phnom Penh Cambodia on 23 June 2004, p. 7
Mr. Toby Mendel, Representative of Artic 19 Organization of Great Britain, speech in the workshop on freedom of information on June 23, 2004 in Sunway hotel in Phnom Penh in Cambodia
Semester Report of the Project Management Unit of the Council for Legal and Judicial Reform, 2005
Legal and Judicial Reform Strategy Paper of the Royal Government of Cambodia, 2003
US department of State, website: http://www.state.gov/r/pa/ei/bgn/2732.htm
Survey of Center of Social Development on Freedom of Information in 2002
[1] Universal Declaration of Human Rights of the United Nation was adopted in 1949
[2] Website of the office of the high Commissioner for Human Rights, http://www.unhchr.ch/udhr/lang/eng.htm
[3] University of Minnesolta, Human Rights Library, http://www1.umn.edu/humanrts/instree/b3ccpr.htm
[4] Website of PACT/Cambodia, http://www.pactworld.org/programs/country/cambodia/cambodia_app_story1.htm
[5] Report of the workshop on freedom of information on 23 June 2004
[6] we called Second Kingdom of Cambodia because acoording to the history, in the 1950’s and 1960’s, Cambodia conducted the same stsyetm of parliamentary monarchy regime with the king is a head of state. It means that the king have no power to do anything. According to the constitution 1993, Cambodia respected the same regime of paliamentatry monarchy. Therefore most of politician and foreign politician called the regime in the 1960’s the first kingdom and the regime in 1993 is a second kingdom.
[7] http://www.cambodia.org/facts/constitution.html#ChapterIII
[8] http://www.cambodia.org/facts/constitution.html#ChapterIII
[9] Law on the regime of press that unofficial translated by the Cambodian law website, http://www.ifrance.com/cambodialaw/
[10] Mrs. Chea Vannath, Director of Center of Social Development, speech in the workshop on the Freedom of Information on June 23, 2004 in Sunway Hotel
[11] This survey did not yet officially publish the repot. This information gets from the Center of Social Development.
[12] Website: http://earthtrends.wri.org/text/environmental-governance/country-profile-31.html
[13] Miss Saku Akmeemana, office of the high commissioner for human rights, speech in the workshop on freedom of information on June 23, 2004 in Sunway hotel in Phnom Penh in Cambodia
[14] Draft of report of workshop on freedom of information held in Sunway hotel in Phnom Penh Cambodia on 23 June 2004, p. 7
[15] Mr. Toby Mendel, Representative of Artic 19 Organization of Great Britain, speech in the workshop on freedom of information on June 23, 2004 in Sunway hotel in Phnom Penh in Cambodia
[16] Mrs. . Chea Vannath, Director of Center of Social Development, speech in the workshop on the Freedom of Information on June 23, 2004 in Sunway Hotel
[17] Semester Report of the Project Management Unit of the Council for Legal and Judicial Reform
[18] The seven strategic objectives are (1) to strengthen the protection of individual rights and freedom, (2) modernize the legal framework, (3) Access to information of laws and judiciary, (4) Improve the quality of legal process and relevant services, (5) Strengthen judicial services, judicial power, and prosecution services, (6) Introduce to Alternative Dispute Resolution, and (7) Strengthen judicial institution to complete their mandate.
[19] New article 93 of the Constitution of Cambodia said that "Any law approved by the Assembly and signed by the King for its promulgation, shall go into effect in Phnom Penh 10 days after signing and throughout the country 20 days after its signing. Laws that are stipulated as urgent shall take effect immediately throughout the country after promulgation. All laws promulgated by the King shall be published in the Journal Official and published throughout the country in accordance with the above schedule".
[20] US department of State, website:http://www.state.gov/r/pa/ei/bgn/2732.htm
[21] Miss Prayekti Murharjanti, experiences of freedom of information in Indonesia, workshop on freedom of information held in sunway hotel in Phnom Penh in Cambodia on 23 June 2004
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