Last week, I gave a talk in Kuala Lumpur on the importance of access to information as a human right, and its vital role in ensuring democratic participation and robust public discourse. The talk was part of a series of events commemorating UNESCO’s International Day for Universal Access to Information. You can view my talk below (from 42:13 to 56:43). My prepared remarks, which differ slightly from the talk I ultimately gave, are reproduced after the jump.
Hello, my name is Amos Toh, and I am a fellow at the University of California, Irvine School of Law. I also work for the United Nations Special Rapporteur on freedom of opinion and expression. Special Rapporteurs are experts appointed by the UN to monitor human rights issues around the world.
Freedom of expression is a human right that is not just well-established under international law, but also in virtually every national constitution around the world. Article 19 of the Universal Declaration of Human Rights states that everyone shall have the right to freedom of expression, and that this right shall include the freedom to seek, receive and impart information and ideas of all kinds. When we think about violations of freedom of expression, we often think about censorship of journalists and the media; charges brought against government critics or the opposition for defamation or sedition; or violent crackdowns on protests and demonstrations. We might focus less on the right to *receive* information from government authorities, or know what they are doing behind closed doors.
But access to information is just as vital to freedom of expression as the right to criticize, or the right to protest. One cannot exist without the other. Without insight into how governments function, or how institutions of power operate, secrecy can be weaponized to silence public criticism and protest.
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My home country, Singapore, ranked 151st out of 180 countries on the 2018 World Press Freedom Index, an index compiled by organization Reporters Without Borders. But Singapore is, by many accounts, a peaceful country; a country that one would not associate with violence, let alone violence against journalists or even its harshest critics. There are no show trials; no arbitrary executions; no sudden disappearances.
But repression doesn’t have to be overt. It can be invisible; orchestrated in the shadows. Its effects can be deeply felt, but its root causes uncertain.
Kirsten Han is a well-respected journalist and human rights advocate living and working in Singapore. Her reporting and writing have been featured in publications as diverse as The Guardian, ABC News and Al-Jazeera. Her work raises probing critiques of government policies and actions. In 2016, her husband, who is not Singaporean but had found a job in Singapore, was told by the Ministry of Manpower that they were not granting him approval to work in the country. Although this process usually takes seven days, it took them two months to get a decision from the Ministry.
This doesn’t make any sense on paper: her husband was highly qualified, and had a job offer from a large multi-national corporation. The paperwork had been filled out correctly. Every rule on the books had been followed. When they asked the Ministry for an explanation, this was the response they got:
“We would like to reiterate that each work pass is assessed on its own merit in consultation with the relevant government agencies. We are unable to disclose details of the rejection.”
When they tried to follow up, this was the response they received:
“Our position on this … application has not changed. We regret that we are unable to assist any further in your enquiries.”
This means that Ms. Han’s husband can remain in Singapore on visit passes, which must be renewed every six months, but not work. The company that had offered him a job had to hire someone else. To this day, they can’t quite figure out why his application was rejected. She wonders whether it has anything to do with her writings about Singapore; her advocacy against the death penalty; her criticism of the state of human rights in the country.
Ms. Han’s predicament is not an isolated incident. Tan Tarn How, a renowned Singaporean playwright, blogged about how, in the last three or four years, there has been a growing number of teachers, researchers and academics in Singapore that have been suddenly told that their services are no longer needed. Job offers mysteriously withdrawn. Employment passes denied. What they have in common is that they are all active participants in public discourse in Singapore.
Are they experiencing reprisals for their critiques of the government? Like Ms. Han, they may have their suspicions, but nobody can know for sure. And that is precisely the point. Censorship doesn’t just happen when a critic or a journalist gets thrown into jail; when a website is blocked; or when a newspaper gets shut down.
The mere prospect of State sanctioned backlash for something you say that doesn’t quite tow the line of acceptable politics is enough to intimidate and censor. It makes you think twice before you speak – what jobs am I putting on the line? What relationships might suffer? This is what Ms. Han calls the “silhouette of oppression.”
Access to information is a powerful antidote to the “silhouette of oppression.” It brings oppression out of the shadows. It prevents government agencies from becoming black boxes.
It is well accepted under human rights law that States have a duty to establish legal frameworks that provide access to information that is in the public interest to know. This usually comes in the form of freedom of information legislation. But the Special Rapporteur has found that law alone is not enough. Meaningful access to information also requires, he says, a “political and bureaucratic culture that values transparency and public participation.” An independent judiciary and legal profession are basic building blocks of a democracy. Law enforcement and other state institutions must also be willing to confront their propensity for violence and intimidation. Taken together, these form what he calls the “basic infrastructure of protection” for access to information.
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But what happens when proper channels for ensuring the flow of information between the government and the public no longer work? Government agencies may be so steeped in a culture of secrecy that regular legal safeguards are not enough. This is especially true for agencies with national security and intelligence functions. Courts cannot exercise their powers of accountability and oversight in the dark. The media cannot focus public scrutiny on what it cannot see.
In these situations, our last line of defense is often the brave individuals that are willing to break the walls of official secrecy so that the public can properly hold those in power to account. These individuals, whom are commonly referred to as whistleblowers, play a critical role in enabling and protecting access to information.
In the United States, one of the most prolific whistleblowers in recent times is Edward Snowden, a former contractor with the U.S. National Security Agency. Mr. Snowden leaked files from the NSA showing how the U.S. government and other major global powers are conducting mass surveillance operations around the world. Snowden not only encouraged a much-needed conversation about how our privacy should be protected online. He also provided a glimpse into the wide range of public and private actors that mine data about our digital lives, and how they use such data to exert influence and control over international and domestic politics and the global economic order.
Mr. Snowden belongs to a long tradition of whistleblowers that have provided opportunities for the rest of us to speak truth to power. But many of these whistleblowers do not have the same profile as Mr. Snowden, and they struggle to make their concerns heard. They also face tremendous personal and professional risks.
Just recently, Australia brought criminal charges against a former intelligence officer and his lawyer, Bernard Collaery, for allegedly disclosing intelligence secrets. Their offence? They had apparently revealed that Australia had planted bugs in government buildings in Timor Leste, in order to gain an upper hand in negotiations with the country concerning billions of dollars worth of oil and gas reserves.
Chelsea Manning, who leaked military and diplomatic documents that showed the horrific toll of war in Iraq and Afghanistan, was sentenced to 35 years in prison. Former President Obama commuted her sentence after she had served for 7 years.
Treating whistleblowers as criminals doesn’t just hurt them; it also hurts us, the public. Without these disclosures, we may not have access to the information we need in order to have candid conversations about the kind of society and democracy that we want to live in.
It is true that whistleblowing is messy, complex and contested. Whistleblowers have been accused of making disclosures for personal gain; that they had disclosed too much or too little; and that they were reckless with the safety and security of others.
But these arguments should not be a bar against whistleblowing; instead, they simply signal that the public’s right to know should take into account legitimate interests in protecting information. In this spirit, the Special Rapporteur has urged States and international organizations to protect whistleblowers under the law if they meet certain criteria. They must have reasonable belief, at the time of disclosure, that the information amounts to a threat or harm to a specified public interest. Such information may include, for example, human rights abuses, government waste or fraud, or harm to the environment.
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Information is power, and power demands accountability. Access to information is not just an integral part of the right to freedom of expression; it is also a principle of the rule of law, and the backbone of democratic culture. When regular safeguards for protecting access to information fail, we need to protect the individuals that come forward and break the silence of oppression.
Thank you for listening to me today.