According to a new decree, the public will not be informed from now on about any information on National Security and Defense and if a journalist reports any public interest information related to National Security and Defense, he or she could be charged with revealing national secrets.
(IPYS/IFEX) – 10 December 2012 – On 7 December 2012, the government published Legislative Decree No. 1129 which regulates the National Defense System. According to article 12 of this regulation, the public will not be informed from now on about any information on National Security and Defense. This kind of information will be considered confidential in all cases and without any statute of limitations, establishing an unacceptable presumption of secrecy or, in other words, the imposition of secrecy as an absolute rule without exceptions.
This rule violates the Inter-American Convention on Human Rights, case law from the Inter-American Court, the Constitution, the jurisprudence established by the Constitutional Court and the Law of Transparency and Access to Public Information.
According to all these legal instruments, the secret nature of information held by the State must be assessed and stated in each case, through an express and duly reasoned decision. This involves evaluating, case by case, whether the dissemination of certain information in particular may generate a serious and imminent threat to National Security or Defense.
This evaluation should be made in accordance with the exceptions established under Article 15 of the Law of Transparency and Access to Public Information. Furthermore, the classification of information as secret should be subject to a five year term. Article 12 of Legislative Decree No. 1129, infringes all these guidelines regarding the legitimacy of secrecy in a democratic State.
Meanwhile, the First of the Final Supplementary Provisions of Legislative Decree No. 1129 itself is an attack on freedom of information. It establishes an obligation of confidentiality on information that is secret under article 12, for any person who accesses this information through the exercise of his or her duties or position.
However, there is no requirement that such duties or position should be of a public nature or be exercised in the service of the State, so that if a journalist in the exercise of his or her informative work or through a position in journalism reported any public interest information related to National Security and Defense, he or she could be charged with revealing national secrets or secret information of the National Defense System, categorized by articles 330 and 331-A of the Penal Code.
In the first case the maximum sentence would be 15 years’ imprisonment, while in the second such sentence would be a maximum of 10 years. Thus, it is clear that from the moment Legislative Decree No. 1129 is enforced, press coverage of any information relating to National Security and Defense is threatened by imprisonment.
For all these reasons, IPYS draws the government’s attention to the need to correct as soon as possible these obvious attacks on transparency, access to public information and freedom of information, as part of the commitments adopted during the election campaign regarding these public freedoms. At the same time, it calls on all institutions involved in the defense of these rights to consider the seriousness of the situation and join us in our attempt to prevent this regression from being completed.
Lima, December 10, 2012
Augusto Alvarez Rodrich
President of IPYS
