Feb 12, 2021 | Advocacy, News
The Myanmar military should immediately abandon the draft Cyber Security Law and end Internet restrictions it has imposed since taking power in a coup on 1 February, said ARTICLE 19, Open Net Association, and the ICJ today.
“It is telling that controlling cyberspace is one of the top priorities of the Myanmar military, which seized power through an illegitimate coup d’etat only last week,” said Sam Zarifi, ICJ’s Secretary General. “The military is used to having total power in Myanmar, but this time they have to face a population that has access to information and can communicate internally and externally.”
Under international law, the rights to freedom of expression and information may only be restricted if prescribed by law, in pursuit of a legitimate aim, and necessary and proportionate to that aim. This right applies equally online. In 2018, the UN Human Rights Council condemned ‘all undue restrictions on freedom of opinion and expression online that violate international law’.
“Having illegally seized control of government, the military is trying to ram through a hugely problematic law that would imperil the Myanmar public’s ability to share and access information online,” said Matthew Bugher, ARTICLE 19’s Head of Asia Programme. “The draft law is further evidence of the military’s intent to control online discourse and permanently undermine Internet freedom in the country.”
Human rights bodies and experts have repeatedly condemned Internet shutdowns, which are inherently unnecessary and disproportionate irrespective of their purported objectives. Four UN special procedures with mandates from the Human Rights Council stated in their 2011 Joint Declaration on Freedom of Expression and the Internet that, ‘Cutting off access to the Internet, or parts of the Internet, for whole populations or segments of the public (shutting down the Internet) can never be justified, including on public order or national security grounds’. The UN Human Rights Council has repeatedly called on Myanmar to lift Internet restrictions in the country.
Anonymity is furthermore crucial to protecting the right to freedom of expression and other human rights, including the right to privacy. UN Human Rights Council Resolution 38/7 recognizes that ‘privacy online is important for the realization of the right to freedom of expression and to hold opinions without interference, and the right to freedom of peaceful assembly and association’. The UN Special Rapporteur on freedom of expression in a 2015 report stated that restrictions on encryption must confirm to the three-part test on restrictions to the freedom of expression noted above.
“The ban on online anonymity in the cybersecurity law is not just bad for Myanmar but sets a dangerous precedent for the whole of Asia”, said Kyung Sin Park, Executive Director of Open Net Association, whose founders spearheaded a successful constitutional challenge against a similar law in South Korea in 2012. “The content takedown provisions and criminalization of online speech in the draft law are extremely broad and utterly lacking due process even in comparison to other Asian countries. The proposal smacks of a legislative attempt to extend the powers the military had taken in an unlawful, anti-democratic coup.”
ISPs, online service providers (as defined by the draft law to mean content providers) and other stakeholders have only been given until 15 February for input. This is a clear indication that the military has no intention of engaging in meaningful consultation.
On 10 February, a group of 158 Myanmar civil society organizations released a statement rejecting the draft Cyber Security Law, while reiterating their view that the Myanmar military could not legitimately exercise legislative authority.
“All online service providers inside and outside the country should be alarmed at this intrusion of military authority into cyberspace and refuse to implement these hugely problematic restrictions,” said ICJ’s Sam Zarifi.
SPECIFIC PROBLEMATIC PROVISIONS OF THE DRAFT CYBERSECURITY LAW (based on an unofficial translation of the draft law):
Many provisions in the draft law are vague and overbroad, in contravention of the principle of legality. If enacted, the draft law would greatly extend the powers of military authorities to restrict and punish online expression.
The law provides overarching control to the military’s ‘State Administration Council’, a newly-formed body appointed by the Commander-in-Chief. The direct military control of Internet service provision and its role in the policing of content online is in and of itself cause for alarm. Further, the military should in no circumstances be charged with protecting personal data.
Section 29 of the draft law is overly broad as it demands the prevention, removal, destruction and cessation of a broad and vaguely defined range of expression, including online comments deemed ‘misinformation’ or ‘disinformation’, any expression that causes hate and risks disrupting unity, stability, and peace, and ‘written and verbal statements against any existing law’.
Under section 64, any person convicted of creating ‘misinformation’ and ‘disinformation’ with the intent of causing public panic, loss of trust or social division in cyberspace is punishable by three years’ imprisonment, a fine, or both.
International human rights bodies have repeatedly urged governments against laws that create ‘false news’ offences, warning about their potential abuse by governments to suppress criticism and other forms of speech protected by international human rights law.
Section 30 threatens the right to online anonymity by requiring online service providers to retain usernames, IP addresses, national IDs, and other personal data for up to three years, and to provide this information to authorities upon request. For this purpose, Section 28 requires an online service provider to ensure that any device that stores the user’s information must be kept in a place designated by the relevant Ministry.
The draft law also has overly broad catch-all provisions in Sections 61 and 73 respectively whereby online service providers that fail to comply with any provisions of the draft law face a maximum penalty of three years’ imprisonment and a fine and individuals failing to comply with any rules, regulations, notifications, orders, directives, and procedures issued under the draft law are subject to one year’s imprisonment and a fine. These sanctions which are punitive in purpose and effective are non-compliant with the requirement of proportionality under international human rights law and standards on freedom of expression.
The draft law also provides for enhanced power to control the Internet without the benefit of judicial review by independent civilian courts. In the ‘public interest’, a ministry approved by the State Administration Council may temporarily prohibit any online service or take control of devices related to online service provision, as well as permanently ban any online service provider. This is a less stringent standard than that provided under the problematic and much-criticized section 77 of the Telecommunications Act, which allows for shut downs or control of telecommunications in an ‘emergency situation’.
Download
Statement in Burmese.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Feb 8, 2021 | News
The Myanmar military’s coup d’etat of 1 February is unconstitutional and fails to comply with basic rule of law principles, said the ICJ today.
“The Myanmar military’s actions violate even the flawed Constitution that the military itself imposed in 2008,” said Sam Zarifi, ICJ’s Secretary General. “The irregularities alleged by the military in the recent elections do not justify declaring a state of emergency and shattering the already weak rule of law in the country.”
The coup d’etat does not comply with the Constitution of the Republic of the Union of Myanmar 2008, which suffers from multiple shortcomings in basic respect for the rule of law and international human rights standards.
Article 417 of the Constitution requires the President to declare a state of emergency when there is a risk to the sovereignty of the country.
Article 418 requires the President to hand over all power to the Commander-in-Chief of the Army. Contrary to this provision, the state of emergency was declared by the Vice-President, after the military detained President Win Myint.
“The accountability of the military to the civilian authorities is a core rule of law principle”, said Sam Zarifi “Myanmar’s military leaders have turned this principle on its head by usurping total authority again.”
The ICJ is concerned that Myanmar’s Constitution provides for the possibility of suspending protections for a number of human rights, such as freedom of expression and association and the right to habeas corpus. Under international human rights law, derogations from certain rights are permissible only when strictly necessary to meet a specific threat to the life of the nation, conditions not met under the current emergency.
The right to habeas corpus is among those rights that may never be suspended. The writ of habeas corpus allows any person detained by any State agent, including during emergencies, to challenge the lawfulness of the detention.
“The right to test the lawfulness of any detention needs to be restored and the judiciary must be able to independently examine the legality of any arrests and detentions and order to release of those it finds are detained illegally” said Sam Zarifi.
Of particular concern to the ICJ is the near-total impunity provided to the military after the declaration of the State of Emergency, and the proliferation of arbitrary detention without recourse to legal review.
Article 432 of the Constitution effectively shields the military and security forces from any review of ’legitimate measures’ pursuant to the declaration of a state of emergency, which the ICJ notes also flies in the face of the rule of law.
“After the shock of the coup d’etat, we are now seeing brave lawyers and civil society activists trying to use peaceful means at their disposal to demand their rights,” Zarifi said. “This movement is not focused around an icon or even one party, but on the notion that the people of Myanmar should be able to government themselves and decide their future.”
Contact
Sam Zarifi, ICJ’s Secretary General, sam.zarifi(a)icj.org
Sep 14, 2020 | Advocacy, Non-legal submissions
In a statement to the UN Human Rights Council in Geneva, the ICJ has welcomed the report of the Independent Investigative Mechanism for Myanmar (IIMM)
The oral statement was delivered in an interactive dialogue with the IIMM, and read as follows:
“The ICJ salutes the Mechanism in setting up the necessary infrastructure for its operation despite the challenges brought about by the COVID-19 pandemic. Given the lack of genuine and independent domestic investigation and prosecution of serious human rights violations in Myanmar, the efficient establishment of the Mechanism is welcomed.
The ICJ shares its concern over the Government of Myanmar’s lack of cooperation with the Mechanism. The ICJ recalls Myanmar’s obligation to ensure accountability for serious human rights violations occurring in Myanmar, including, but not limited to, the acts against ethnic Rohingya that were the subject of the report of the Government-appointed Independent Commission of Enquiry.
Given the Mechanism’s mandate to gather and preserve evidence of any serious human rights violations committed in Myanmar from 2011 to the present, the ICJ underscores the need to investigate the widely reported accounts of killings, serious physical injury, mass displacement and destruction of property in various parts of Rakhine and Chin states in the context of the ongoing conflict between Myanmar and the Arakan Army. The Myanmar Government still refuses to hold a ceasefire despite the onset of the COVID-19 pandemic in Rakhine. The parties to the conflict must be held accountable for any violation of international human rights and humanitarian law.
The ICJ would like to ask: how can States and inter-governmental organizations strengthen support for the mandate?”
For more information, contact: Kingsley Abbott, kingsley.abbott(a)icj.org
Jul 14, 2020 | Advocacy, Non-legal submissions
At the UN Human Rights Council, the ICJ today highlighted the need for a range of measures to effectively address the continuing impunity for gross violations of human rights in Myanmar.
The oral statement, which was delivered in an interactive dialogue with the UN Special Rapporteur on the situation of human rights in Myanmar, read as follows:
“The ICJ welcomes and shares the concerns of the final report of the previous Special Rapporteur Ms Yanghee Lee, particularly with the lack of accountability for gross human rights violations against Myanmar’s ethnic minorities.
The ICJ recalls Myanmar’s international human rights obligations, including under the Convention on the Prevention and Punishment of the Crime of Genocide and the provisional measures ordered by the International Court of Justice in The Gambia v. Myanmar case.
The ICJ underscores that directives enjoining government officials from engaging in further acts of genocide are not sufficient without comprehensive legal and constitutional reform to end impunity. This includes the amendment of laws such as the 1959 Defence Services Act and the 2014 Myanmar National Human Rights Commission Law.
National institutions continue to fail to conduct credible investigations into allegations of widespread human rights violations by the military against ethnic minorities. The final report of the Independent Commission of Enquiry, which was not made public, was transmitted to the Attorney General and the Commander-in-Chief of Myanmar’s Armed Forces, implying that military courts will take jurisdiction over at least some of the cases, inconsistent with Principle 29 of the UN Principles for the protection and promotion of human rights through action to combat impunity (UN doc E/CN.4/2005/102/Add.1/).
Mr Andrews, as the new mandate-holder, the ICJ would like to invite you to elaborate on your priorities and strategies for addressing the continuing impunity for such violations in Myanmar.”
Jul 10, 2020 | Advocacy, News, Non-legal submissions
Today, the ICJ submitted a report to the UN Human Rights Council Working Group on the Universal Periodic Review (UPR) ahead of the review of Myanmar’s human rights record in January-February 2021.
The ICJ stressed the lack of accountability and redress for victims – and the resulting continued culture of impunity – for widespread gross human rights violations constituting crimes under international law in Myanmar, particularly those involving members of Myanmar’s Defence Services.
Certain provisions under the 2008 Myanmar Constitution as well as national laws such as the 1959 Defence Services Act and 1995 Myanmar Police Force Maintenance of Discipline Law shield security forces from public criminal prosecutions in civilian courts. Closed court martial proceedings also deny victims and their families the right to truth about human rights violations.
The Myanmar National Human Rights Commission (MNHRC), Myanmar’s national human rights institution with the mandate to investigate allegations of human rights violations, has not initiated any substantive or credible investigation into allegations of widespread and systematic human rights violations perpetrated in recent years by soldiers against persons from ethnic minorities, despite being recorded in detail in the reports of the UN Independent International Fact-Finding Mission on Myanmar and the UN Special Rapporteur on the situation of human rights in Myanmar.
Rather than strengthen the role of civilian courts and the MNHRC, Myanmar has set up ad hoc commissions of inquiry to investigate such incidents. However, these inquiries have a recommendatory mandate and an unclear relationship with the judiciary. The full report of the findings of these commissions are generally not publicly disclosed. Against this backdrop, Myanmar has ceased cooperation with the UN Special Rapporteur for Myanmar and rejected other UN and international accountability mandates.
In light of this, the ICJ recommended the following actions, among others:
- For the MNHRC to investigate all allegations of gross human rights violations, especially including crimes under international law;
- For the Parliament to repeal or amend the 1959 Defence Services Act to bring it in line with international human rights law and standards and ensure that gross human rights violations and serious international humanitarian law violations perpetrated by soldiers can only be prosecuted in civilian courts;
- For the Union Government to publish the full report of the findings of ad hoc commissions of inquiry, such as that of the Independent Commission of Enquiry;
- For the Union Government to issue an open invitation to and cooperate with the Special Rapporteur on the situation of human rights in Myanmar, the Office of the High Commissioner for Human Rights as well as the UN Independent Investigative Mechanism on Myanmar; and
- For the Union Government to cooperate with the International Criminal Court.
The ICJ also called for Myanmar to become a party to key human rights treaties, such as the International Covenant on Civil and Political Rights, that the State committed – yet failed – to accede to in its previous UPR cycle.
Download
Myanmar-UPR-Submission-2020-ENG (PDF)
Contact
Jenny Domino, ICJ Associate Legal Adviser, e: jenny.domino@icj.org
Kingsley Abbott, Coordinator of the ICJ’s Global Accountability Initiative, e: kingsley.abbott(a)icj.org
