Overly Broad Restrictions Undermine Fairness

(Bangkok) – The Myanmar Union Election Commission should amend rules governing political parties’ access to state-owned radio and television stations to ensure that all parties can present their positions without undue interference, Human Rights Watch said today.

On July 23, 2020, the Union Election Commission announced that political parties would be permitted to deliver electoral speeches and explain party policies on state-owned television and radio stations during the two-month period leading up to the national election scheduled for November 8. However, all political broadcasts must be pre-approved by the election commission under overly broad and vague restrictions on what political parties can say, in violation of international standards for protection of freedom of speech.

“The UEC’s regulations hamstring the political opposition by effectively prohibiting any criticism of the government, existing laws, and the military,” said Linda Lakhdhir, Asia legal adviser at Human Rights Watch. “Doing so strikes at the heart of political speech and campaigning, and seriously undermines the fairness of the electoral process.”

Under international standards, a transparent and independent body, separate from the election commission, should be established to regulate broadcasting content during elections. Campaign messages for broadcast should not be subject to prior approval and there should not be undue limitation on topics allowed to be covered in the campaign.

Under the rules announced by the UEC, a political party must apply to the election commission for permission to present a campaign broadcast and submit a script for the proposed broadcast for review. The UEC can either permit the broadcast or require revisions to ensure that the script does not violate vague and broadly worded restrictions on content.

The rules prohibit any content that “can disturb the security, rule of law and the peace and stability of the county,” or “disrespects” the existing laws of the country, or “defames” or “tarnishes the image” of the country, or defames the Tatmadaw, or can “harm dignity and morality.” The rules also prohibit any content that could “incite” members of the civil service “not to perform their duty or to oppose the government.”

The cumulative effect of the restrictions clearly violates international human rights law by precluding almost all criticism of the government, the Tatmadaw, or current abusive laws, Human Rights Watch said. Voters have a right to receive and obtain information that will enable them to decide how to exercise their vote. It is critical for all parties to have fair access to state-owned broadcast media in Myanmar, so they can present their programs to the voters.

While the decision to allocate time to opposition political parties is a positive step, any limits on the right to disseminate electoral statements should conform to international standards, including that public figures should be required to tolerate a higher degree of criticism and scrutiny than ordinary citizens. Limits on voters’ access to information can have a chilling effect on debate around issues of public importance during campaigns and elections, Human Rights Watch said.

Using Myanmar’s numerous defamation laws, the government and military have treated almost any criticism of their record as defamatory. For example, three Kachin human rights defenders were sentenced to six months in prison in December 2018, for “defaming” the military during protests in Myitkyina calling for the rescue of civilians trapped by renewed fighting in Kachin State.

Section 66(d) of the Telecommunications Law, which covers defamation online, has been repeatedly used to prosecute those who criticize the government or the military. The military charged the Burmese language editor of The Irrawaddy, Ye Ni, with defamation under that law in April 2019 for reporting about military attacks in the town of Mrauk-U in Rakhine state, though the charges were later dropped. The restriction on content that “defames” the country or the Tatmadaw thus places severe restrictions on what political parties can say about the current National League for Democracy-led government or the military.

The restriction on content that could cause members of the civil service “not to perform their duties” is also problematic given the history of similar restrictions in Myanmar. Penal code article 505(a), barring speech that may cause members of the military to “disregard or fail” in their duties, has been repeatedly used against critics of the military.

On August 29, 2019, a court sentenced the prominent filmmaker, Min Htin Ko Ko Gyi, to one year in prison with hard labor under that provision for criticizing the military on Facebook. Min Htin Ko Ko Gyi suffers from liver cancer and was visibly unwell during his trial.

The military also used the law against members of the Peacock Generation, a traditional theater group, for a satirical performance deemed critical of the military. A court sentenced five members of the troupe to a year in prison for violating section 505(a) in October 2019. A different court imposed an additional one-year sentence under the same law in November 2019, and three members of the troupe face charges of defaming the military under section 66(d) for streaming the performance online.

The prohibition on content that “disrespects” existing laws could be used to prohibit political parties from criticizing abusive laws and discussing their plans to change those laws, Human Rights Watch said. The prohibition on content that can “tarnish the image of the country” could be applied to prohibit almost any criticism of the government or the military, including commentary on military abuses in Rakhine, Shan, and Kachin states.

Each of these restrictions violates international standards on freedom of speech, Human Rights Watch said. They also undermine the fairness of the electoral process by preventing opposition parties from presenting their policies in full where those policies involve criticism of the government, the military, or the country’s many abusive laws.

“The Union Election Commission should revise the broadcast rules to ensure that voters are able to hear opposition parties on state-owned media speaking freely about their policies and platforms,” Lakhdhir said. “Robust political debate lies at the heart of the electoral process, and Myanmar voters are entitled to hear all political views, including those critical of the government in power and its policies.”

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