Commentary to: The Johannesburg Principles on National Security, Freedom of Expression and Access to Information

I. Introduction

National security and freedom of expression and information are often viewed as pulling in opposite directions. On the one hand, governments, particularly those that feel threatened by external or internal violence, maintain that disclosure of “secret” information or airing of critical opinions can undermine the very institutions that protect the security and well-being of law-abiding citizens. On the other hand, human rights defenders point to government suppression of speech on national security and related grounds as having paved the way for some of the worst human rights violations, subversions of democracy, and threats to peace experienced in the last half of this century.

Yet, national security is not fundamentally at odds with freedom of expression and information. To the contrary, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, better protected when the press and public are able to scrutinize government decisions than when governments operate in secret. ² Freedom of expression and access to information, by enabling public scrutiny of government action, serve as safeguards against government abuse and thereby form a crucial component of genuine national security. Equally, national security is a pre-condition for the full enjoyment of all human rights, including freedom of expression.

Undeniably, there are circumstances in which national security and freedom of expression clash head on. For instance, protection of a genuine national security interest requires the suppression of sensitive defense information or speech likely to promote violence against the state. The conflict is exacerbated by the fact that national security and related concepts (such as “state security,” “internal security,” “public security,” and “public safety”) are so imprecise that they may be, and frequently have been, ³ invoked by governments to suppress precisely the kinds of speech that provide protection against government abuse, such as information or expression exposing circumvention of the democratic process, attacks on opposition parties, damage to the environment, corruption, wasting of public assets, and other forms of wrongdoing by government officials and their associates.

Moreover, courts in countries around the world demonstrate the least independence and greatest deference to the claims of government when national security is invoked. This deference is reinforced by provisions in the security laws of many countries that trigger exceptions to ordinary rules of evidence and due process upon a minimal showing by the government of a national security risk. A government’s claim of a security threat can deal a knockout blow to the main institutional safeguards against government abuse: independence of the courts, due process of law, freedom of the press, and open government.

The tension between expression and national security is particularly vexing because there is little margin for error and much at stake. Quick action often is necessary to thwart a genuine threat to national security but restraints on political speech can trigger an inexorable slide into tyranny. The more fragile the democracy, the less likely it is to be able to tolerate either a threat to its genuine security or the suppression of legitimate political debate.

It is this profound tension that led Article 19, the International Centre Against Censorship, to convene a group of independent experts to draft a set of principles that would adequately safeguard both the right to freedom of expression and information as well as the prerogative of governments to limit the right when necessary to protect a legitimate national security interest. The result was the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. ⁴

The Principles are based on international and regional law and standards relating to the protection of human rights, evolving state practice (including judgments of national courts), and general principles of law. While some of the Principles undoubtedly are more protective of freedom of expression than widely accepted international norms, they reflect the drafters’ view of the direction in which international law is, or should be, developing.

Thirty-seven experts, hosted by the Centre for Applied Legal Studies of the University of the Witswatersrand, participated in the drafting, representing...