State Restrictions on Civil Society and the Free Flow of Information

On 9 May I participated in a workshop organised by my colleagues Kristin Bakke, Neil Mitchell and Hannah Smidt on State Restrictions of Civil Society and the Free Flow of Information. It was an excellent discussion, bringing activists, journalists practitioners, policy-makers and academics together to share their insights. Hosted by the UCL Global Governance Institute, the event formed part of a series of thematic activities on Global Security, led by our Thematic Director, Kristin Bakke. The event concluded with a keynote with Natalia Taubina, of Public Verdict, a Russian campaigning NGO. I was invited to reflect briefly on the relevance of national human rights institutions (NHRIs) to the thematic.

I flagged four issues: 1) NHRIs as part of the problem or solution? 2) The importance of statutory authority, 3) The most powerful tools at an NHRIs disposal to overcome government restrictions, and 4) a “hard test” for human rights advocacy.

Are NHRIs part of the problem or solution? We know that at least some NHRIs are contributing significantly to human rights protection and promotion in their countries.  They can seek legal redress for victims of violations, promote law reform on behalf of vulnerable groups, develop protection policies for human rights defenders (HRDs), and address specific threats to individuals. NHRIs accredited ‘A status’ at the UN have been identified as key protection agencies by the UN Special Rapporteur for Human Rights Defenders as key protection agencies.

But we also know that creating effective NHRIs is challenging, especially when they are supposed to curb the excesses of the very governments that put them in place. This creates a risk of capture. Captured NHRIs may, at best, serve as ‘window-dressing’ placebos, at worst they may actively bolster government restrictions – similar to other judicial and representative institutions gone rogue.  The effect of captured NHRIs may be particularly pernicious, serving to justify authorities’ actions and deflecting international attention.

However, while it’s easy to be cynical, capture is far from a foregone conclusion.  NHRIs in Afghanistan, Australia, Ireland, Poland, Malaysia, Philippines, Peru, to name just a few, have been, at one or another, or continue to be widely viewed by local civil society actors as allies in their work. NHRIs as state funded, but formally independent, regulatory agencies pose a challenge to simplistic opposing dichotomies of state versus civil society. Simply put, we cannot – and as scholars, should not – necessarily assume interest agreement between government and independent state agencies, even under hostile conditions.  De facto NHRI autonomy and performance becomes an empirical question.

What explains effective NHRIs?  Part of the answer lies with formal design as a first or last line of defence. Unfortunately, too often formal design is decoupled from actual function. A key question then is which design features matter? In a recent project (currently under review), we find that independence safeguards such as constitutional entrenchment do matter. However, budget allocation and dubious appointments remain the Achilles heels of these institutions. We also find strong evidence that certain investigative and promotional powers, enable NHRIs to respond to state restrictions and, importantly, build lasting public and media support. These effects are particularly evident in democracies – but also under certain conditions – in authoritarian settings such as Malaysia.

The key point to underline is the importance of statutory authority. Unlike NGOs, NHRI officials are independent statutory officers and enjoy similar immunity protections as high court judges. Many can launch investigations on receipt of complaint or on their own motion. They can require disclosure of information and access to detention facilities through subpoena powers. Offices in Australia, Ireland, Malaysia and elsewhere can also launch far-reaching public inquiries and disseminate their findings widely through special reports.  Importantly, such action is often undertaken in coordination with NGOs and UN agencies to maximise their impact on poor policy performance by government.

Which brings me to the third point. Although NHRIs cannot issue binding judgments, powers to generate and disseminate information – above all public inquiry powers – can prove one of the most powerful weapons policy-makers can give public regulators. Another tool often used by NHRIs to good effect is monitoring and benchmark assessments of policy performance.  It serves as a low-cost and authoritative form of social pressure – also facilitating third party mobilisation by NGOs and the UN.

But even where NHRIs have the statutory authority to counter government obstruction, a lot depends upon leadership and motivation. Our research shows that NHRI personnel perceptions of institutional mission, professional duty, and relationships to diverse constituencies strongly inform their actions. NHRIs may seek to pursue resolution through cooperation. However, where the limits of cooperation are reached, they may be compelled to engage in more coercive strategies to overcome official stonewalling, including ‘naming and shaming’. Even in high-performing democratic settings, NHRIs can find themselves forced to confront government.

As the Australian NHRI President, Professor Gillian Triggs, has recently said in response to a barrage of ad hominen attacks by government officials: “Were I to receive…warm and congratulatory words from the Government…I think the taxpayer would be justified in my resignation, because I wouldn’t be doing my job.”

And I’ll end with this particularly vexing example of state restrictions on the free flow of information.  I’ve just returned from Australia where I was investigating the work of the Australian NHRI in exposing violations of international law at refugee detention facilities.  Successive commonwealth governments have well-understood that information is the lifeblood of accountability for what is happening in Australian detention centres and have gone to extraordinary lengths to restrict it.

National security has been repeatedly invoked to deny FOI requests, outsourcing to private contractors G4S and SERCO reinforcing secrecy, NGOs and the media have been denied access to detention centres, and gag clauses have been inserted into the Australian border force act. In 2014, an anti-whistle-blowing law was used by the Minister of Immigration to pursue prosecution of 10 Save the Children staff who spoke out after working on Nauru. Access has been granted to UN agencies and the ICRC, but these agencies conduct their work in strict confidentiality.

In effect, the Australian NHRI found itself practically the only regulatory agency able to both compel access to these facilities and publicise its findings. And this it did, conducting 11 visits, taking 100s of expert witness and victims testimony, and in 2014 producing a 350-page report entitled The Forgotten Children: National Inquiry into Children in Immigration Detention detailing a host of serious violations.  As it says, this national inquiry ‘is a process aimed at giving voice to the otherwise unheard – and now largely unseen – asylum seekers detained in remote parts of Australia’.

The consequences of this intervention have been far-reaching and are still being played out. The NHRI continues to be subject to extraordinary attacks by government officials and media attack dogs, but the NHRI President remains in place, and there have been some discretionary policy reform.  Notably, in April 2017, the Australian government agreed to pay a confidential settlement to a nine-year old Iranian asylum seeker over her detention on Christmas Island.

This example highlights the value-added principled NHRI action can bring to countering efforts by government to aggressively restrict information with a view to evading accountability. However, it also raises a sober question for researchers and policy-makers: what can be done to overcome resistance when large swathes of public opinion are either indifferent or hostile to the plight of those suffering human rights violations at the hands of their government? The Australian NHRI experience offers some hard lessons in this regard.

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