Myanmar: UN HRC Must Keep Scrutiny on Free Expression Situation

In a stark assessment in March 2018, the Special Rapporteur on the situation of human rights in Myanmar reported to the UN Human Rights Council (HRC) that “[w]hile the historic election of a civilian government for Myanmar promised a new era of openness, transparency and the expansion of democratic space, the Special Rapporteur has only seen that space shrink.” ARTICLE 19 is gravely concerned that this shrinking of civic space has continued unabated in the past year under the National League for Democracy (NLD) government.

No progress has been made to repeal or reform those laws used most frequently against government critics, whilst legislative proposals expected to come before Parliament in the coming months threaten to further erode already weak legal protections for the right to freedom of expression, in particular for ethnic and religious minorities. “Hate speech” has continued to thrive, in part because of the absence of principled leadership by senior politicians in speaking out against discriminatory hatred, and the lack of a comprehensive plan to promote pluralism, diversity, and inclusion in Myanmar.

Myanmar authorities have continued to repress and criminalise dissent and criticism of the State and its policies, in particular in relation to ongoing conflicts and human rights abuses perpetrated by the State. The operating environment for the media and civil society remains fraught, with human rights defenders, protesters, journalists, and media workers routinely threatened with arrest and prosecution simply for exercising their right to freedom of expression. Against this backdrop, self-censorship is widespread and government officials seek to control and manipulate the flow of information in the country.

Successive resolutions on the human rights situation in Myanmar, and, most recently, a resolution on the situation of the human rights of Rohingya Muslims and other minorities in Myanmar, included recommendations to the government to undertake numerous measures to improve protections for freedom of expression in the country, including legislative reforms and the release of those subject to arbitrary detention.

ARTICLE 19 urges all Member and Observer states of the HRC to call on the Government of Myanmar to prioritise immediate reforms to protect freedom of expression in the resolution to be adopted at the conclusion of the 40th Session, and to raise these concerns during the interactive dialogue with the UN Special Rapporteur on the situation of human rights in Myanmar.

Prosecution of journalists, human rights defenders, and others exercising the right to freedom of expression

A surge in the abusive application of a variety of colonial-era laws and vague provisions in the Penal Code to silence criticism of the government and its policies, which began in 2017, has continued in the past year. Government authorities—including both military and civilian officials—have initiated criminal proceedings against journalists, bloggers, activists, and others for exercising the right to freedom of expression under the Official Secrets Act, section 66(d) of the 2013 Telecommunications Law, and restrictive provisions in the Penal Code, including those which criminalise defamation, provocation and incitement, religious insult, and sedition.

The government has targeted journalists seeking to report on human rights violations and abuses perpetrated by the security forces, as well as their sources. The conviction of Reuters journalists Wa Lone and Kyaw Soe Oo under the Official Secrets Act, who were sentenced to seven years’ imprisonment, was upheld by the High Court in January 2019. The journalists were arrested in December 2017 while investigating a massacre of Rohingya civilians in Inn Din, northern Rakhine State, and were convicted in September 2018. The HRC called for their release in HRC Resolution 39/2. In May 2018, former child soldier Aung Ko Htwe was sentenced to two years’ imprisonment under the incitement provision of section 505(b) of the Penal Code, after speaking to the media about his experiences. The following month, Myanmar Now reporters were briefly detained and threatened with arrest by the military under the Official Secrets Act, while pursuing a story related to the alleged recruitment of a disabled child soldier, but were released after intervention from the Myanmar Press Council.

The authorities have also targeted individuals for their criticism of or perceived opposition to the government and senior officials. In September 2018, former newspaper columnist Ngar Min Swe was sentenced to seven years in prison and fined 100,000 kyat for sedition under section 124A of the Penal Code in relation to Facebook posts critical of Aung San Suu Kyi. In the same month, Dr. Aye Maung, a politician from Rakhine State, and author Wai Hin Aung were prosecuted for high treason and for incitement against the state under sections 122 and 505(b) of the Penal Code for remarks made at an event in Rathedaung Township commemorating the fall of the Arakan kingdom, in which they reportedly expressed support for the ethnic armed group the Arakan Army. An appeal was rejected on 14 January 2019. On 10 October 2018, authorities arrested three journalists from Eleven Media—Kyaw Zaw Lin, Nayi Min, and Phyo Wai Win—on charges of incitement under section 505(b) of the Penal Code. The news outlet had posted an article regarding the financial management of the Yangon Regional Government, which is overseen by Phyo Min Thein, reportedly a protégé of the State Counsellor.

Overall, while the NLD government released 36 political prisoners in April 2018, as of February 2019, 43 political prisoners remained behind bars, according to the Assistance Association for Political Prisoners—Burma. All of those who remain in prison were arrested during or after 2015.

The continued prosecution of human rights defenders, politicians, journalists and their sources, and social media users, underscores the need for the HRC to reiterate its call for the Myanmar government to reform laws used to criminalise dissent and free expression, to drop all outstanding charges and quash existing convictions of those currently detained, and to guarantee their immediate and unconditional release.

Ongoing impunity for attacks against journalists, HRDs and civil society

Despite the February 2019 conviction of two individuals for the murder of prominent lawyer U Ko Ni, the investigation into his killing was deeply flawed and the trial was beset by procedural irregularities. Moreover, impunity continues in the killings of journalists Ko Par Gyi in 2014 and Soe Moe Tun in 2016, and rights activist Naw Chit Pandaing in 2016. Notwithstanding specific calls in HRC Resolution 37/32 for the Myanmar government to accelerate efforts to ensure “thorough, independent and impartial investigations” into the killings of Ko Par Gyi and Soe Moe Tun, there has been no progress in securing accountability in these cases. More broadly, the government has failed to create an environment where individuals can exercise the right to freedom of expression without fear of reprisal.

The HRC must restate the importance of ending impunity for attacks against journalists and human rights defenders, and of creating an enabling environment for civil society, journalists and the media to do their work.

Restrictions on peaceful protest

Vague and broad restrictions on the right to peaceful assembly in Myanmar are set out in the 2012 Peaceful Assembly and Peaceful Procession Act and the Penal Code. In the last year, the authorities have frequently applied these restrictive provisions to prevent peaceful assemblies from being organised, and have sought to suppress protests through the use of mass arrests, and the disproportionate and unlawful use of force against protesters.

Sections 141-149 of the Penal Code broadly criminalise “unlawful assemblies”. These extremely vague provisions grant authorities significant discretion on whom to charge, and for what actions. Among the most problematic provisions is section 149, which imposes a form of collective responsibility on all participants in a protest for the use of force or violence by any participant in the assembly.

The 2012 Peaceful Assembly and Peaceful Procession Act contains similarly vague provisions that are applied arbitrarily against individuals protesting against the government or its policies. In May 2018, authorities arrested more than twenty anti-war protestors in a series of rallies in Yangon, Mandalay, and Myitkyina under sections 19 and 20 of the Peaceful Assembly and Peaceful Procession Act. In September 2018, eight residents of Patheingyi Township were arrested under section 19 of the Peaceful Assembly and Peaceful Protection Act after protesting the construction of a cement factory and road expansion project by Myint Investment Company.

On 12 February 2019, authorities fired rubber bullets into a crowd that had gathered to protest the erection of a statue of Aung San, a prominent independence figure and father of State Counsellor Aung San Suu Kyi, causing injuries to several. In total, 82 mostly ethnically Karenni individuals were arrested since protests relating to the statute began in July 2018. Charges have reportedly been dropped against several of the protesters.

Proposed amendments to the Peaceful Assembly and Peaceful Procession Act that were passed by the Upper House in 2018 are due to be considered by  Parliament in March 2019. If passed, they would further limit the exercise of the right to peaceful assembly, imposing criminal penalties on those who provoke, persuade, or urge others to join protests by providing money to protesters, and requiring the advance disclosure of the sources of funding for protests.

In September 2018, organisers who planned a protest demanding the release of jailed Reuters journalists Wa Lone and Kyaw Soe Oo were called to a meeting by the Bahan Township Administrator. The authorities had issued the organisers prohibition orders, and proceeded to threaten them with arrest under the Peaceful Assembly and Association Act should they proceed without permission, making reference to the violent suppression of an anti-war march in Tamwe Township in May that year and the prosecution of its organisers.

Provisions in the Penal Code, in particular defamation and incitement provisions, have also been used against peaceful protesters in the last year. In December 2018, Kachin youth activists Nang Pu, Lum Zawng, and Zau Ja were sentenced to six months’ imprisonment and fined 500,000 kyat for defamation under section 500 of the Penal Code. The suit was initiated by a Tatmadaw officer in relation to an anti-war protest in which the activists participated in Myitkyina in April 2018. In September 2018, two activists were sentenced to two years’ imprisonment for provocation and incitement under sections 153 and 505(b) of the Penal Code after joining a protest in support of the arbitrarily detained child soldier Aung Ko Htwe. The same month, Tin Maung Kyi, a member of Myanmar Democracy Current Force (MDCF), was charged under Section 505 (b) of Penal Code for a protest that called on the international community to prosecute the Myanmar military.

In its 34th and 37th sessions, the HRC expressed its concerns concerning the arbitrary arrest and detention of individuals for exercising the right to peaceful assembly and association, and called for open and participatory legislative processes to repeal or reform laws abusively applied against them.

The HRC must reiterate its call for the repeal of the Unlawful Associations Act, and the reform of the Peaceful Assembly and Processions Act to ensure compliance with international law and standards, and urge the government to drop all outstanding charges against those exercising the right to peaceful assembly, quash their convictions, and ensure their immediate and unconditional release.

Stalled legal reform

In the early months of its administration, the NLD government committed to a broad program of legislative reform touching on laws that restrict the right to freedom of expression and information. This reform agenda has ground to a standstill, however. Meanwhile, the government has intensified the application of abusive provisions against journalists, human rights defenders, lawyers, politicians and social media users, as outlined above, despite calls by the HRC during its 34th and 37th sessions for the government to repeal and reform criminal defamation and other provisions used to restrict free expression.

Among the most widely used provisions to target online expression is section 66(d) of the 2013 Telecommunications Law, which broadly criminalises defamation using a telecommunication network and carries a two-year custodial sentence (reduced in 2017 from three).  Section 68(a) of the law is additionally of concern: it vaguely criminalises the communication online of “incorrect information with dishonesty or participation”. Prosecutions under the law have increased under the NLD government, and throughout 2018. The government should prioritise the repeal of these provisions in their entirety as an urgent priority, together with the criminal defamation provisions found in section 34(d) of the Electronic Transactions Law.

There has been no progress in the repeal or reform of the range of colonial-era laws most often used to limit the exercise of free expression in the country, including the Unlawful Associations Act, the Official Secrets Act, and several sections of the Penal Code, including section 124 (sedition), sections 141-149 (unlawful assemblies), section 153 (provocation), section 295(a) (outraging religious feelings), sections 499-500 (defamation), and 505(b) (incitement).  These laws all require the urgent attention of Parliament, and the authorities must immediately cease using them against those commenting on or criticising the government, its agencies, or its policies, as well as those reporting on government misconduct or expressing minority or unpopular opinions.

The Myanmar government must also undertake a broader programme of reform of the legal and regulatory framework affecting freedom of expression and association. The current News Media Law requires amendment to bolster the impartiality and credibility of the Myanmar Press Council, including by establishing an independent appointment process, improving funding transparency, and guaranteeing diverse representation. The Broadcasting Law is also in need of reform to ensure fair treatment of non-state media, increase transparency, and provide adequate support to community media.

ARTICLE 19 calls on the HRC to be specific and comprehensive in the legal reforms it urges the Myanmar government to prioritise, and to encourage the government to work with civil society and international partners, including OHCHR and the Special Rapporteur, on a concrete, participatory, transparent, and time-bound legislative process in this regard.

Government responsibility for proliferation of “hate speech”

During its 37th Session, the HRC called on the Myanmar Government to take the necessary measures in accordance with Human Rights Council Resolution 16/18 of 24 March 2011 and the Rabat Plan of Action to address discrimination and prejudice against minorities across the country, including by “publicly condemn[ing] and speak[ing] out against national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” and by “adopt[ing] measures against incitement to imminent violence based on nationality, race, or religion or belief, while upholding freedom of expression.” In its 39th Session, these calls were largely echoed by the HRC, which additionally called for the enactment of “the necessary anti-hate speech laws, in accordance with international human rights standards.”

HRC Resolution 16/18 sets forth an agenda of proactive measures that states must take to combat intolerance, discrimination, and violence on the basis of religion or belief. These measures include the promotion of inter-religious dialogue, the development of conflict prevention and mediation mechanisms, the training of government officials, the criminalisation of incitement to imminent violence based on religion or belief, the establishment of awareness-raising initiatives, and the proactive condemnation of intolerance. The Rabat Plan of Action provides practical legal and policy guidance to States on implementing Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), which obliges States Parties to the ICCPR to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to hostility, discrimination or violence.”

The government has yet to effectively implement the actions outlined in HRC Resolution 16/18 and the Rabat Plan of Action, and has instead continued to directly contravene the guidance contained in these documents.

As the UN Fact-Finding Mission outlined in detail in its report, the NLD government has overseen a proliferation in “hate speech”, including the advocacy of discriminatory hatred constituting incitement to violence, directed against the Rohingya and other Muslim and minority communities in Myanmar. Much of this expression has been spread on social media, but inflammatory messaging has also been disseminated through traditional media outlets, including on broadcast television, on DVDs, and at public gatherings. The content of “hate speech” against Muslims has often focused on alleged threats to territorial integrity, Burmese purity, and religious sanctity, as well as the dangers of jihadism and sexual violence by Muslim men against Buddhist women.

Buddhist nationalist groups, such as the 969 Movement and the Organization for the Protection of Race and Religion, commonly known by its Burmese acronym Ma Ba Tha, have been at the forefront of the proliferation of “hate speech”. Ultra-nationalist monk Wirathu gained notoriety and hundreds of thousands of followers on Facebook while posting photographs allegedly depicting atrocities committed by Muslims and describing Muslims as “mad dogs” and “radical, bad people” and mosques as “enemy bases”. “Hate speech” has become mainstreamed, with the participation of popular media outlets, civil society, and the general population, leading to a hardening of opinions against the Rohingya and an increase in tensions between Buddhists and other Muslim communities.

The response of successive Myanmar governments to the proliferation of “hate speech”, discrimination and incitement to violence in Myanmar has been halting at best. While senior officials in both the USDP and NLD-led governments have made broad overtures toward tolerance and harmony, they have tended to publicly censure only the most extreme mouthpieces of the nationalist movement. Senior officials, including Aung San Suu Kyi, have consistently failed to address broader discriminatory sentiment among the general population, to speak out against hatred, or to more forcefully advocate for the rights of the Rohingya and the country’s Muslim population.

Beyond simply failing to condemn advocacy of discriminatory hatred against minorities, prominent government officials have also perpetuated inflammatory rhetoric, and have participated in deliberate campaigns of misinformation directed at the Rohingya, including by denying atrocities perpetrated by state security forces in Rakhine State. Most recently, in December 2018, Myanmar’s Minister of Religion referred to Rohingya who had fled to Bangladesh as “Bengalis” and stated that, “the future goal of those over populated Bengalis is to march on Myanmar.”

In this context, tackling the proliferation of “hate speech” remains an urgent priority, requiring concrete and immediate action across multiple areas. Regrettably, the government appears singularly focused on seeking to pass deeply flawed legislation which is dangerous to the rights to freedom of opinion and expression, freedom of religion or belief, and freedom from discrimination.

ARTICLE 19 has reviewed three successive versions of draft legislation to counter “hate speech” prepared by the Ministry of Religious Affairs and Culture. The military-controlled Ministry of Home Affairs is reportedly chairing a committee that is considering further amendments to the proposed legislation. Previous drafts of the bill adopted an extremely broad definition of “hate speech” and relied primarily on criminal penalties and coercive measures to address intolerant speech. Any future legislation that adopts this approach will likely close space for inter-communal dialogue, increase tensions within and between groups, and stifle the expression of ethnic and religious minorities.

Legislative proposals in this vein should be withdrawn in favour of a new approach focused on positive policy measures to promote and protect the rights to freedom of expression and equality. The 1982 Citizenship Act, which erected insurmountable barriers to citizenship for many Rohingya, should be amended or repealed. Moreover, article 295(a) of the Penal Code, which provides for up to two years of imprisonment for “outraging religious feelings”, has frequently been used against religious minorities and individuals speaking out against extremism, and should be repealed.

The HRC must redouble its calls on the Myanmar government to take a holistic approach to tackling “hate speech”, including incitement of hostility, discrimination, or violence, in full compliance with the rights to freedom of expression, to freedom of religion or belief, and to equality, and in line with Resolution 16/18 and the Rabat Plan of Action, and should call for the withdrawal of planned legislation to counter “hate speech”.

Restrictions on Access to Rakhine State and other conflict areas

The Myanmar government has sought to prevent independent reporting on active conflicts and human rights abuses by enforcing restrictions on access to conflict areas, most notably northern Rakhine State, to both journalists and independent experts. Elsewhere in the country, restrictions on access to conflict areas has been imposed through the application of the Unlawful Associations Act, which has been used to arbitrarily target individuals making contact with ethnic armed organizations.

Today, the government continues to deny both local and foreign journalists’ access to northern Rakhine State, and has failed to provide guidance on how access can be obtained, with regional and union authorities placing responsibility on each other. In January 2019, the Myanmar Government again denied entry to the UN Special Rapporteur on the situation in Myanmar.

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