Over the past few weeks, the government has repeatedly asserted its intention to introduce a state secrets law in Cambodia. In a country that has not yet adopted a solid access to information law and has showed no hesitancy in restricting freedom of expression, such declarations are a cause for serious concern. In fact, the public right of access to information is not only the other side to freedom of expression, it is the backbone of democracy.
In recent years, a significant number of states around the world have engaged in public debate over the balance between the right to information and the need for state secrets, subsequently adopting or revising classification regimes and related laws. Finding the right balance remains though a delicate exercise that requires attentive reflection and large consultations. In 2013, for example, Japan passed a state secrecy law that sparked widespread criticism and concerns as it includes serious threats to whistleblowers and even journalists reporting on areas the government defines as secrets.
Similarly, China has been internationally condemned for broadly classifying information as secrets and using its own state-secrets law to jail dissidents.
In 2013, 17 organisations and five academic centres, in consultation with four special rapporteurs on freedom of expression and the media from the UN, the African Commission on Human and Peoples’ Rights, the Organization of American States (OAS), and the Organization for Security and Cooperation in Europe (OSCE), as well as with the UN special rapporteur on counterterrorism and human rights, issued a set of principles on national security and the right to information, the so-called Tshwane Principles. This authoritative document restated that national security and the public’s right to know do not go necessarily in the opposite direction.
This is certainly true, and the Cambodian government has repeatedly asserted that the draft law on state secrets would address national security issues, such as the leaking of secret information of the police, military and government. However, a state secrets law could help conceal government wrongdoings and further limit the right to information if clear standards or procedures for classifying or otherwise withholding information on security grounds are not properly established. Last year’s comments from Council of Ministers spokesman Phay Siphan go in that direction. He made the suggestion that people were not supposed to have a copy of the leaked cybercrime draft law and that they could be in trouble.
Vagueness of the criteria used for classifying information as a “state secret” and a lack of transparency in the drafting process, which would not be new to the Cambodian government practice, are not an option when it comes to the right to information and in turn to democracy. In fact, no state secrets law should be passed until after an access to information law is adopted.
The timing of these declarations on a state secrets law is also very disappointing as national discussion and active campaigning for an access to information law has been on-going for more than a decade. Since 2001, NGOs working in the country have pushed for greater transparency and education of democratic rights that would in turn enhance the exercise of the right to freedom of expression.
A solid draft law and an amended version were submitted to the National Assembly in 2010 and 2012, respectively. Both were rejected.
Despite these efforts to increase access to information, government officials in Cambodia often simply choose not to implement the few provisions related to freedom of information that currently exist in domestic law, for example under the 1995 Law on the Press or the 2005 Archives Law. This, paired with a politically subservient judiciary and restrictive police force, has prevented Cambodia from developing a strong freedom of information framework and from exercising full freedom of expression.
Democracy requires an informed citizenship and accountable leadership. For these goals to be realised, the public’s right to know must be protected and positively enforced through legislation and the active implementation of freedom of information principles.
Certain information may legitimately be secret on grounds of national security or protection of other overriding interests. However, abuses of power occur when a government is not open and accountable. The lack of access to sufficient and accurate information severely hinders the ability of journalists and civil society to provide information and encourage debate. Increasing public access to information through the adoption of a comprehensive access to information law will allow Cambodians to exercise their democratic right to participate in decision-making processes and to freedom of expression. It will also equip them with the necessary information to make informed decisions about issues that affect them, in turn increasing the transparency and accountability of those individuals and bodies that wield power in Cambodia.
A secrecy law should not be adopted until the right of access to information is solidly guaranteed in the country. When a stronger legislative infrastructure on the right to information has been developed in Cambodia, national security could be considered as a legitimate while specific exception to that right.
Chak Sopheap is the executive director of the Cambodian Center for Human Rights.