The Johannesburg Principles were developed in 1995 by a group of experts in international law, national security, and human rights. They are based on international and regional law and standards relating to the protection of human rights, evolving state practices (for example, the judgments of national courts), and the general principles of law recognized by the community of nations.

The full text of the Johannesburg Principles, and the complete list of experts who contributed to their development, can be viewed at www.article19.org

Here we will present in a less technical and legal format some of the key points that are relevant for the discussion of national security and the freedom of expression in Asia.

Everyone has the right to hold opinions without interference. Everyone has the right to freedom of expression, which includes the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his or her choice. However, the exercise of these rights may be subject to restrictions on some specific grounds that are established in international law. The protection of national security is one of these grounds.

Restriction of freedom of expression and information on national security grounds may not be imposed unless the government can demonstrate that the restriction is

• prescribed by law, and

• Necessary in a democratic society in order to protect a legitimate national security interest.

The onus of proof that the restriction meets these tests lies with the government.

Not only must any restrictions be prescribed by law, the laws that authorize such restrictions must be:

• Accessible

• Unambiguous

• Drawn narrowly and precisely so that individuals can foresee whether a particular action would be unlawful or not.

Such laws should provide adequate safeguards against abuse, including prompt, full and effective judicial scrutiny of the validity of the restriction by an independent court or tribunal.

Any restriction on expression or information that the government seeks to justify on national security grounds must have the genuine purpose and demonstrable effect of protecting a legitimate security interest. The government must be able to demonstrate that:

• The expression or information at issue poses a serious threat to a legitimate national security interest

• The restriction imposed is the least restrictive means possible for protecting the interest

• The restriction is compatible with democratic principles.

A legitimate national security interest is understood to mean protecting a country's existence or territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, eg a military threat, or an internal source eg incitement to violent overthrown of the government.

The Johannesburg Principles explicitly state that a restriction of expression or information on grounds of national security is not legitimate if its genuine purpose and demonstrable effect is to protect interests unrelated to national security eg to protect a government from embarrassment or exposure of wrongdoing, or to hide information about the functioning of public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

If a state of public emergency is officially and lawfully proclaimed in accordance with both national and international law, a state may impose restrictions on freedom of expression and information. But this may be done only to the extent strictly required by the demands of the situation, and only when, and for so long as this is not inconsistent with the government's other obligations under international law.

In no case may a restriction of expression or information involve discrimination based on race, colour, sex language, religion, political or other opinion, national or social origin, nationality, property, birth or other status. Any legitimate restrictions must be applied in a non-discriminatory way.

No one may be subjected to any sort of restraint or sanction because of their opinions or beliefs. Only in certain, limited situations, may expression be punished as a threat to national security.

No person may be punished on national security grounds for disclosure of secret information if:

• The disclosure does not actually harm, and is not likely to harm a legitimate national security interest, or
• The public interest in knowing the information outweighs the harm from disclosure.

No person may be subjected to any detriment on national security grounds for disclosing information that he or she learned through government service if the public interest in knowing the information outweighs the harm from disclosure.

Subject to the general rule on disclosure of secret information, and information obtained through public service (set out above), expression may be punished as a threat to public security only if the government can demonstrate that:

• The expression is intended to incite imminent violence
• It is likely to incite such violence, and
• There is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

Some examples of the peaceful exercise of the right to freedom of expression which may not be considered a threat to national security or subjected to any restrictions or penalties include expression that:

• Advocates non-violent change of government policy or the government itself
• Constitutes criticism of, or insult to, the nation, the state or its symbols, the government, agencies or public officials
• Constitutes objection, or advocacy of objection, on grounds of religion, conscience or belief, to military conscription or service, a particular conflict, or threat or use of force to settle international disputes
• Is directed to communicating information about alleged violations of international human rights standards or international humanitarian law

As well as highlighting these examples, the Johannesburg Principles state that no one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies or public officials, or a foreign nation, state or its symbols, government, agency or public official unless the criticism or insult was intended and likely to incite imminent violence.

Expression may not be prevented or punished just because it transmits information issued by or about an organization that a government has declared threatens national security or a related interest.

Expression may never be prohibited on the ground that it is in a particular language, especially the language of a minority.

Not only are governments obliged to respect these principles, but they must also take reasonable measures to prevent private groups or individuals from interfering unlawfully with the peaceful exercise of freedom of expression, even where the expression is critical of the government or its policies. Governments are obliged to condemn unlawful actions aimed at silencing freedom of expression, and to investigate and bring to justice those responsible.

Everyone has the right to obtain information from public authorities, including information relating to national security. No restriction on this right may be imposed on the ground of national security unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest.

A state may not simply deny access to all information related to national security. It must designate in law only those specific and narrow categories of information that it is necessary to withhold in order to protect a legitimate national security interest.

The public interest in knowing the information shall be a primary consideration in all laws and decisions concerning the right to obtain information.

The state must adopt measures that give effect to the right to obtain information. These measures shall require the authorities to give reasons in writing and as soon as possible if they deny a request for information. The measures should provide a right of review of the merits and validity of any denial of information by an independent authority, including some form of judicial review of the legality of the denial. The reviewing authority must have the right to examine the information that the government withheld.

Once information has been made generally available - whether by lawful means or not - any justification for trying to stop further publication will be overridden by the public's right to know.

Protection of national security may not be used as a reason to compel a journalist to reveal a confidential source.

Restrictions on the free flow of information may not be of such a nature as to thwart the purposes of human rights and humanitarian law.

Governments may not prevent journalists, or representatives of intergovernmental or non-governmental organizations with a mandate to monitor adherence to human rights or humanitarian standards, from entering areas where there are reasonable grounds to believe that violations of human rights or humanitarian law have been or are being committed.

Governments may not exclude journalists or representatives of such organizations from areas that are experiencing violence or armed conflict except where their presence would pose a clear risk to the safety of others.

Any person accused of a security related crime involving expression or information is entitled to all of the rule of law protections that are part of international law. Some of these rights are:

• The right to be presumed innocent
• The right not to be arbitrarily detained
• The right to be informed promptly in a language the person can understand of the charges and the supporting evidence against him or her
• The right to prompt access to counsel of choice
• The right to a trial within a reasonable time
• The right to have adequate time to prepare his or her defence
• The right to a fair and public trial by an independent and impartial court or tribunal
• The right to examine prosecution witnesses
• The right not to have evidence introduced at trial unless it has been disclosed to the accused and he or she has had an opportunity to rebut it, and
• The right to appeal to an independent court or tribunal with power to review the decision on law and facts and to set it aside.

All legal remedies shall be available to people charged with security-related crimes, even during public emergencies which threaten the life of the country.

The accused should have the option to have a criminal prosecution of a national security-related crime tried by a jury (where that institution exists) or else by judges who are genuinely independent. The trial of persons accused on national security- related crimes by judges who do not have security of tenure constitutes a prima facie violation of the right to be tried by an independent tribunal.

In no case may a civilian be tried for a security-related crime by a military court or tribunal.

A person, media outlet, political or other organization may not be subject to such sanctions, restraints or penalties for a security-related crime involving freedom of expression or information that are disproportionate to the seriousness of the actual crime.

1. How do the national security laws of your country measure up to the Johannesburg Principles? Which principles, if any, are violated and how?
2. The Johannesburg Principles are based on regional and international human rights standards. Can you identify which international human rights laws, such as Covenants and Conventions, each principle is derived from?
3. Do you think that the Johannesburg Principles could be used in advocacy for national security laws that respect and protect human rights? If so, how? If not, why not?
4. Individual freedoms are sometimes in conflict with the requirements of the common good or national security. Do you think that the Johannesburg Principles strike a reasonable balance between personal freedom and the common good in situations where national security is at stake?
5. National security has been used as an excuse for the restriction of human rights and personal freedoms by governments in some places. Do the Johannesburg Principles provide adequate protection of human rights? Are national security grounds for restrictions of rights defined tightly enough