Case Watch: Peru’s Constitutional Court Hears Challenge to Blanket Military Secrecy
By Emi MacLean
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
Peru’s Constitutional Court is considering a challenge to a 2012 executive decree which makes all information related to the country’s security secret, with no exceptions. The court will finally hold a long-awaited hearing on Friday, October 31.
This case highlights the push and pull of government disclosures of information to the public. Around the world, countries have increasingly recognized the public right to access government information.
There are now 100 countries with right to information laws—a dramatic increase since 1990 when only 13 countries had such laws. However, this change has also prompted the enactment of new laws to exclude broad swaths of information from public oversight.
Exactly that has happened in Peru.
In 2003, Peru enacted a strong right to information law. Influenced by the country’s brutal internal armed conflict and the major corruption during Alberto Fujimori’s decade-long rule, the law was drafted with the intent to give the public the right to obtain access to government information that they needed to function as well-informed citizens, including information needed to prevent human rights violations and grand corruption.
While the law allows for the exemption of information legitimately withheld on national security grounds, it places important limits on what the government may keep secret. Information may only be legitimately classified if its disclosure would harm the “territorial integrity and/or survival of the democratic system”. Moreover, the government may not classify information related to violations of human rights or international humanitarian law.
But in December 2012, Peru’s President, Ollanta Humala, himself a former military officer, issued a sweeping executive decree—Executive Decree 1129—which effectively shields all security-related matters from any public oversight, and by extension accountability.
The decree undoes the careful regime established by the 2003 right to information law, which allows for democratic oversight of the security sector while still ensuring that the military and intelligence authorities may protect for a limited time information whose disclosure would be harmful to national security. Decree 1129 states that “all information or documentation” related to security and national defense “is by its nature secret.”
This provision excludes broad categories of information from public scrutiny without requiring any case-by-case justification by the public authority for withholding the information, or a demonstration that the disclosure of the information would harm national security in some way. Further, it does not set a time limit on this exclusion, or any consideration of public interests which might override a secrecy classification.
Last year, Peru’s national ombuds office, the Defensoría, requested that the Constitutional Court review the executive decree. The Open Society Justice Initiative provided an analysis of relevant international and comparative law in support of this constitutional challenge.
Blanket secrecy for information related to security and national defense, or any other category, is inconsistent with the right to information. State secrecy laws long existed to punish disclosure of information detrimental to economic or military affairs using “national security” as a justification.
The Inter-American Commission on Human Rights, in its Commentary to the Model Inter-American Law, even singled out Peru’s prior legal regime for improperly asserting a need for national security secrecy to cover up abuses.
A set of Global Principles on National Security and the Right to Information—the Tshwane Principles—issued in 2013 and based on international and comparative law, provide further guidance. The Tshwane Principles explicitly reject blanket secrecy. The Open Society Justice Initiative was one of the organizations involved in drafting these principles, which have now been endorsed by relevant United Nations, Inter-American Commission and African Commission special rapporteurs, as well as the European Parliament and the Council of Europe.
In Colombia, the Constitutional Court has rightly recognized that “decisions or actions of public servants that they do not want exposed are usually ones that cannot be justified. And the secret and unjustifiable use of State power is repulsive to the rule of law and appropriate functioning of a democratic society.”
Peru’s Constitutional Court now must consider the essential question of whether the state may continue to hide broad swaths of information from public view. The answer is clear: not without just cause and meaningful oversight.
Until April 2016, Emi MacLean was a legal officer for freedom of information and expression with the Open Society Justice Initiative.