May 12, 2021
An opinion piece by Jenny Domino, Associate Legal Adviser, ICJ Asia-Pacific Programme.
On Feb. 24, 2021, three weeks after Myanmar’s military (the Tatmadaw) staged the coup that changed the course of Myanmar’s future, Facebook announced it was banning all “remaining” military and military-controlled state and media entities from Facebook and Instagram, including ads from military-linked commercial entities. To this end, Facebook said it would use the United Nations Fact-Finding Mission on Myanmar’s (FFM) 2019 report on the military’s economic interests in identifying relevant commercial entities. Though Facebook had removed military accounts and pages in the past for their involvement in human rights violations– most notably the account of State Administration Council chairperson, Senior-General Min Aung Hlaing, in 2018– the company’s 2021 decision went much further by indefinitely suspending military and military-related accounts and pages regardless of content or behavior.
In other words, contrary to popular opinion, former President Trump’s account was not the first high-profile account to be indefinitely suspended by Facebook. Commander-in-Chief Min Aung Hlaing’s de-platforming was described as “unprecedented” in 2018, but outside of Myanmar watchers, it garnered little global attention, much less debate.
The 2021 de-platforming of the Tatmadaw offers a renewed opportunity to engage with how Facebook – and other powerful platforms – should do their part to deal with authoritarians and human rights-violating institutions like the military in Myanmar. Facebook’s act to de-platform the Tatmadaw was the culmination of incremental steps taken by the company in response to the “emergency situation” unfolding in Myanmar since the coup. For example, on Feb. 11, Facebook decided to “significantly reduce” the distribution of false content emanating from military accounts and pages still operating on the platform, but stopped short of an immediate outright ban. And it had previously declined to ban the entire military’s presence on its platform despite it being implicated in the Rohingya human rights crisis. At each of these moments, Facebook took action too late, and too incrementally, to avert harm – harm that the platform knew was imminent and which its very design facilitated. Facebook’s history in Myanmar highlights the broader problems with content moderation in vulnerable contexts, and it should serve as a cautionary lesson to companies that wish to prevent their platforms from facilitating atrocities.
A Dance of De-Platforming and Platforming
The coup was not made overnight. Experts observed that the groundwork had been carefully laid months before the coup to delegitimize the results of Myanmar’s November election. The Tatmadaw’s social media presence formed a key part of the plan to control the narrative surrounding the poll, one the Tatmadaw later invoked to justify the power grab.
Facebook’s latest de-platforming decision removed the infamous “Tatmadaw True News Information Team,” which was the military’s official Facebook page, and Major General Zaw Min Tun, the military’s spokesperson. It also included the MRTV and MRTV Live “news” pages. According to Facebook, these pages repeatedly violated its prohibition on incitement to violence and coordinating harm.
As was locally reported last year, the Tatmadaw set up the “True News” page in June 2020 to provide “accurate news” ahead of the November election. This factor is crucial for analyzing the present, as the military has alleged voter fraud as a pretext for the coup. The Tatmadaw has so far attempted to justify its actions – including the unlawful use of lethal force, arbitrary arrests of protestors, democratically elected leaders, journalists, and celebrities, shutdown of independent media, and denial of the nationwide calls to respect the people’s vote – ironically under the guise of protecting “democracy.” The pages most recently banned by Facebook were used to disseminate the Tatmadaw’s false narrative on election fraud and enabled it to lay the groundwork for the coup.
One may wonder why the Tatmadaw True News Information Team and Zaw Min Tun were allowed on Facebook in the first place. Indeed, I asked this question here last year upon the creation of the page. To recall, Facebook banned Min Aung Hlaing and other generals in 2018 for their involvement in serious human rights violations in Myanmar. As found by the FFM then, the Rohingya and other ethnic minorities suffered the brunt of these violations, some of which constituted crimes under international law. As regards speech that could be expected to incite violence or discrimination, the FFM specifically found that Facebook, along with other forms of media, “enabled the spread of … hateful and divisive rhetoric” targeting the Rohingya in a country where, as the FFM observed, “Facebook is the Internet” (para. 1345). Given the platform’s dominance in the country, the FFM found it “unsurprising that propagators of hate speech resort[ed] to Facebook to wage hate campaigns, amplify their message, and reach new audiences.” The platform was also “widely used to spread misinformation … by government officials and the Tatmadaw” (para. 1346).
As I explained last year, Facebook neither attributed its 2018 de-platforming decision to the 2018 FFM report or any of its Community Standards, despite the latter supposedly being the governing law on the platform. Moreover, although select military officials were de-platformed, civilian government officials equally found by the FFM to have disseminated hate speech against the Rohingya were still allowed to remain on the platform with apparently little to no consequence. More importantly in the present context, only select military accounts were permanently suspended rather than the entire military, without any explanation for this particular strategy. The Tatmadaw television network, Myawaddy, was in fact banned in 2018 but allowed to reappear until banned again in the wake of the coup. It was at least in part as a result of these gaps that the Tatmadaw was able to set up accounts such as the Tatmadaw True News Information Team. Even now, Facebook has inexplicably decided to allow at least 23 other pages and profiles “controlled and/or operated by the Tatmadaw” (without specifying which ones) to continue operating, only opting to significantly reduce the distribution of their content.
What Is Proportionate?
It is apparent by now that Facebook’s lack of clarity and consistency in its 2018 de-platforming decision has returned to haunt it in 2021. Both Zaw Min Tun and the Tatmadaw True News Information Team that Facebook platformed in 2020 figured prominently in the coup that has derailed Myanmar’s fragile path to democracy. And Zaw Min Tun remains the military junta’s spokesperson, now leading the Information Team of the State Administration Council.
As a non-State actor, Facebook has the corporate responsibility to respect human rights under the U.N. Guiding Principle on Business and Human Rights (UNGPs), which includes adherence with the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR requires the application of the principles of necessity and proportionality to any measure limiting the right to freedom of expression. This would mean imposing the least intrusive yet necessary means in regulating expression to achieve a legitimate aim. The aims that are legitimate are themselves narrow, including the protection of national security, public health and morals, public order, and the rights of others. The application of these standards to social media platforms seeking to regulate users’ speech, including State actors’ speech, has generated robust debate, but the U.N. Special Rapporteur on freedom of expression notes that platforms have an arsenal of tools to proportionately address problematic content. De-platforming or permanent account suspension of a user is the most extreme response.
In March this year, Facebook released its Corporate Human Rights Policy, wherein it formally committed to respect human rights as laid out in key international instruments. The non-profit BSR recommended adopting such a policy in 2018 in its human rights impact assessment of Facebook’s operations in Myanmar. An important component of this commitment is a clarification on Facebook’s de-platforming approach to world leaders of illiberal and authoritarian regimes, as I initially raised here and here. Such a commitment also demands ongoing human rights due diligence to enable understanding of the wider history and context of the places where Facebook operates, instead of only considering the immediate circumstances surrounding a tragic event. This contextual familiarity is critical to inform questions of risk and to apply the standards of legitimacy, proportionality, and necessity, which are necessarily fact-based.
In the context of Myanmar, a comprehensive ban on military and related accounts appears to have been warranted for some time, given the well-documented and egregious violations with which these accounts have been associated. The FFM reports in 2018 and 2019, Facebook’s own de-platforming decision in 2018, years of widely documented human rights violations in Myanmar, the assortment of international legal proceedings concerning these human rights violations, the prevalence of military-controlled state media, the state of censorship in the country, and other considerations all support a blanket ban on military-linked accounts. Facebook has in fact been moderating Myanmar military-linked accounts under its Coordinated Inauthentic Behavior policy continuously since its initial 2018 actions.
Instead, Facebook’s decisions to (i) platform the Tatmadaw True News Information Team and Zaw Min Tun in 2020, (ii) belatedly reduce distribution of military-related content ten days after the coup, and (iii) wait until the third week of the coup to indefinitely suspend military and related accounts do not seem to be a sufficient response. Facebook justified the indefinite ban in the third week of the coup by invoking four factors:
The Tatmadaw’s history of exceptionally severe human rights abuses and the clear risk of future military-initiated violence in Myanmar, where the military is operating unchecked and with wide-ranging powers.
The Tatmadaw’s history of on-platform content and behavior violations that led to us repeatedly enforcing our policies to protect our community.
Ongoing violations by the military and military-linked accounts and Pages since the February 1 coup, including efforts to reconstitute networks of Coordinated Inauthentic Behavior that we previously removed, and content that violates our violence and incitement and coordinating harm policies, which we removed.
The coup greatly increases the danger posed by the behaviors above, and the likelihood that online threats could lead to offline harm.
Factors 1 and 2 were true long before the coup, while Factors 3 and 4 were true in the first week of the coup as much as in the third week. This is also not the first time that the Tatmadaw disregarded the people’s vote. Further, rumors of a coup spiked in late Jan. this year, prompting diplomatic missions in Myanmar to release a joint statement urging the military to recognize the election results.
Facebook’s responses had also been partially preempted: By Feb. 24, Facebook and other social media platforms were already banned in Myanmar as part of the military junta’s series of network disruptions which, since the coup on Feb. 1, has involved internet and mobile network shutdowns and social media and website bans. Despite the local social media ban, however, Facebook’s decision still carried weight as many people within Myanmar continue to access the platform through virtual private networks (VPN).
Overall, Facebook’s response particularly pales in comparison to its relatively swift action to de-platform former President Trump soon after the U.S. Capitol riots and then refer the matter to the Facebook Oversight Board. Although abhorrent, the violence at the U.S. Capitol was mild compared to the scale of violence called for and facilitated by military-linked Facebook accounts in Myanmar. And the threat to democracy posed by the Jan. 6 insurrection was dwarfed by the actual overthrow of democracy on Feb. 1 in Myanmar and the international crimes several years earlier during the Rohingya crisis. These contrasts reveal a broader problem with Facebook’s approach to content moderation in the most fragile contexts.
A Global Conversation Centered On At-Risk Populations
Facebook’s inconsistent and often-belated de-platforming approach in Myanmar should invite deeper reflection on the parameters of social media access provided to world leaders of illiberal and authoritarian regimes. In its decision on the Trump ban, the Facebook Oversight Board made a policy recommendation to Facebook to “publicly explain” the applicable rules when imposing account-level sanctions against influential users, including its strikes and penalties process. Facebook should take up this recommendation and clarify how it enforces such policies abroad. This problem is also not unique to Facebook. Other platforms such as TikTok and YouTube have respectively moderated Tatmadaw soldiers and video channels for violent content, but have been vague about these content decisions.
Further, beyond formally committing to provide access to remedy in line with the UNGPs, social media companies should explore how various forms of remedy and reparation (including compensation, rehabilitation, and satisfaction in the form of public apologies, memorials, and truth-telling) ought to be made available to communities in Myanmar affected by the adverse human rights impacts that their technology or business operations have engendered. As suggested by Rohingya refugees in Bangladesh, this would include engaging with human rights victims, responding clearly and promptly to requests, providing free internet access to refugee camps, and using their influence to promote an open internet, especially in the region where majority of their users are located.
The U.S. government can also play an important role by considering the global impact of domestic legislation applicable to American platforms before such companies are implicated in atrocities elsewhere. For instance, as I suggested here, talks of reforming Section 230 of the Communications Decency Act would be benefitted by discussions on how the safe harbor provision affects users in varying political contexts, which, in turn, can affect U.S. foreign policy.
As the world ruminates on the Facebook Oversight Board’s recent decision on Trump’s de-platforming, the international community must realize that other countries have needed this kind of intervention long before de-platforming became an issue in liberal democracies. As news from Myanmar continues to shock and inspire, it is time to center the lived experience of at-risk populations, caught between a rock and a hard place, in conceptualizing how online speech ought to be governed in an interconnected world. Let’s not wait for democracy – no matter how imperfect – to unravel before noticing the signs.
First published in Just Security on 11 May: https://www.justsecurity.org/76047/beyond-the-coup-in-myanmar-the-other-de-platforming-we-should-have-been-talking-about/
Apr 9, 2021
An opinion piece by Carlos Lusverti, ICJ Latin America consultant.
Access to safe water and sanitation is a human right, yet millions of persons in Venezuela do not have this right protected or guaranteed in the country.
One of the most important preventive measures that the World Health Organization recommends to avoid the transmission of the SARS-CoV2 virus is for people to constantly wash and sanitize hands. Despite this, millions of people cannot do this in Venezuela.
In 2018, at least 82% of the population did not receive continuous water service and 75% of public healthcare centers reported problems accessing the water supply. Similar issues have been raised by the ICJ with respect to the impact of the COVID-19 pandemic elsewhere, for example in India and South Africa.
Yet water scarcity remains particularly acute in Venezuela. In 2020, the Venezuelan Observatory of Public Services reported that 63.8% of the population considered the water service to be inadequate in the face of the COVID-19 pandemic, and a mere 13.6% of the population in cities had a regular water supply.
The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) has recently reported that several regions inside Venezuela had limited access to water, indicating that “there [was] a critical need to ensure adequate water, sanitation and hygiene services in health, nutrition, education and protection facilities”.
Even before the COVID-19 pandemic arrived, the country already was facing a “complex humanitarian emergency” (a humanitarian crisis where there is a considerable breakdown of authority that in Venezuela is not due to an environmental disaster or armed conflict), and the lack of access to water affected at least 4.3 million persons.
Impacts of the lack of water on a healthcare system in critical condition
While water is needed for home consumption, cooking and cleaning, it is also required for effective protection of the right to health, which is at the very core of halting the COVID-19 pandemic. Hospitals and other healthcare facilities in Venezuela have limited access to water and suffer from electricity shortages, which affects the provision of most health services including COVID-19 testing and treatment.
According to the Global Health Security Index on the assessment of global health security capabilities, Venezuela was ranked 176th out of 195 countries in 2019.
This evidences the immense problem the healthcare system has had in addressing the devastating health emergency caused by the COVID-19 pandemic, a problem which is only exacerbated by limited access to water in health facilities.
Water shortages in health facilities contribute to an unsanitary and unhygienic environment. Healthcare centers, like homes, cannot be properly sanitized due to the lack of water and the lack of cleaning supplies. This dramatically increases the health risk for healthcare workers, patients and, consequently, their families, communities and the general public.
Some critical health services such as dialysis and surgery facilities in public hospitals have been closed or restricted due to unsanitary conditions limiting the general access to health services and threatening the right to health of persons in the country.
Human Rights Watch (HRW) has described how the restriction on access to water in hospitals has been a growing problem since 2014. This situation could vary from “an entire weekend and at other times lasting as long as five days”. HRW also found that the response of the Venezuelan authorities to COVID-19 “is severely undermined by [the authorities’] failure to publish epidemiological data, which is critical to address a pandemic.”
Under these conditions, healthcare workers cannot safely attend to COVID-19 patients, or enjoy their own rights to safe and healthy working conditions. According to Programa Venezolano de Educación Acción en Derechos Humanos (PROVEA), at least 332 health workers in Venezuela have died since the beginning of the COVID-19 pandemic due to lack of personal protective equipment and other health measures.
Public Protests
State owned companies in charge of water services do not publish any kind of reports related to water quality, even though local NGOs have requested such information.
Throughout the years, several projects, including some with international funding such as from the Inter-American Development Bank, have been established to improve the quality of access to water, but no information about it is publicly available by the country authorities. Transparencia Venezuela has reported that none of these projects are currently active in the country.
The UN High Commissioner for Human Rights said on 11 March 2021 that “access to basic services like medical assistance, water, gas, food, petrol, has continued to be scarcer, and [that] [t]his contributed to sparking social protests, and severely compounded the humanitarian situation”.
In 2020, in the midst of the COVID-19 pandemic and the lockdown restrictions, at least 1,833 different protests have taken place around the country demanding potable water, according to the Venezuelan Observatory of Social Conflict. Usually authorities resolve the demands by sending water in trucks.
The fragile situation – contributed to and worsened by the lack of access to safe water in the country and the vulnerable conditions in which people live – has compelled them to go into the streets to demand their rights in the middle of a pandemic. Public protests in the time of pandemic create risks of contracting COVID-19. And in the present human rights climate of Venezuela it also poses risks of arbitrary detention and excessive use of force, which are now common practices by the authorities.
Upholding the right to water and sanitation in Venezuela
Venezuela is party to the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Both treaties establish obligations related to the right to water and sanitation. The Committee on Economic, Social and Cultural Rights has described the right to water as “one of the most fundamental conditions for survival” and has clarified that States must prioritize access to water resources for preventing “starvation and disease”. Not just any water provision meets this standard: water must be “sufficient, safe, acceptable, physically accessible and affordable”.
In the context of the COVID-19 pandemic, the Committee has reminded States that the right to water must be understood to include water, soap and sanitizer for all, on a continuous basis. Thus, States must make adequate investment in water and sanitation systems, including utilizing international cooperation to that end, to effectively counter global pandemics and to mitigate the impact of the Covid-19 pandemic on persons living under vulnerable conditions.
Lack of access to water is a long-standing issue in Venezuela. The authorities should combine immediate relief action and long-term policies to guarantee the right to safe water and sanitation in the country in accordance with international standards. There should be an independent monitoring mechanism of water supply in the country.
During the COVID-19 pandemic, Venezuelan authorities must urgently implement emergency policies to provide safe water in all water-scarce areas without any type of discrimination. Priority should be given to ensuring water access in healthcare facilities and the provision of soap, cleaning materials and hand sanitizer.
Finally, Venezuelan authorities should adopt transparent policies that allow for access to public information, in a complete and timely manner, to facilitate the understanding of issues such as the epidemiological situation and data on water quality and accessibility.
This op-ed was originally published in the blog “JUSTICIA EN LAS AMÉRICAS” of the Due Process Law Foundation
Apr 1, 2021
An opinion piece by Mathuri Thamilmaran, ICJ National Legal Adviser in Sri Lanka.
On 1 March 2021, President Gotabaya Rajapaksa elicited considerable public interest through a single tweet. In his tweet commemorating Zero Discrimination Day, he declared his intent to ‘secure everybody’s right to live life with dignity regardless of age, gender, sexuality, race, physical appearance and beliefs’.[1]
According to reports, the tweet made history as the first public acknowledgment by a South Asian Head of State of everyone’s right not to be discriminated against on the basis of sexuality and gender, thus affirming, effectively, one’s right to live life with dignity regardless of sexual orientation, gender identity or expression. It comes at a time when the President has initiated the drafting process of a new Constitution and a first draft is expected soon.
The tweet has opened up a much-needed conversation on sexual orientation, gender identity and expression (SOGIE) in Sri Lanka, particularly regarding the Government’s obligation to ensure that lesbian, gay, bisexual and transgender (LGBT) people are not discriminated against in law or practice.
As it stands, the Sri Lankan Constitution guarantees the right to equality before the law and equal protection of the law of all persons (Article 12). It also prohibits discrimination on the grounds of race, religion, language, caste, sex, political opinion and place of birth.
Notably, therefore, the Constitution does not prohibit discrimination on the grounds of sexual orientation or gender identity and/or expression.
Sections 365 and 365A of Sri Lanka’s Penal Code (1883) criminalize “carnal intercourse against the order of nature” and “acts of gross indecency”, respectively. Both sections have been used to criminalize consensual same-sex sexual relations, albeit the Penal Code does not provide a definition of the terms used by those sections. Those convicted of the ‘crime’ may face up to ten years’ imprisonment.
Section 399 of the Penal Code criminalizes “gender impersonation”, and has often been used against transgender persons with cases being filed against them “for misleading the public”. Further, the loitering provisions of the Vagrants Ordinance (1842) have been used to intimidate, extort, detain and interrogate individuals whose appearance do not conform to gender norms.
In addition, Article 16 of the Constitution states that ‘existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency’ with the provisions of the Fundamental Rights chapter.
As a result, judicial review of existing laws, such as the Penal Code and Vagrants Ordinance, is precluded, thereby shielding the authorities from any scrutiny, including in cases that have given rise to abuse allegations. These provisions have all contributed to an increase in human rights violations by police officers against LGBT persons.
Just last year, a special investigation by a local newspaper found that inhumane methods, including flogging and anal/vaginal examinations, which amount to torture or other ill-treatment, were being used against LGBT people by Sri Lankan authorities to obtain “evidence” of same-sex sexual relations. There had also been instances where H.I.V. tests had been ordered by courts and their results publicly revealed in court, a clear violation of the right to privacy of the individuals concerned.
Following these revelations, the Minister of Justice, Hon. Ali Sabry, made an official statement that he had instructed the relevant authorities to stop such harmful practices while also reiterating his belief in non-discrimination on the basis of ‘gender, sexual preference or identity’. Further, it was reported that as recently as this month, judges were warning the police not to harass transgender persons by misusing the laws and to treat them with dignity.
In 2014, the then Sri Lankan government made representation before the UN Human Rights Committee that Article 12 of the Constitution included non-discrimination on the basis of sexual orientation and gender identity, but, as seen above, explicit provisions and application of the law seem to negate this argument.
Furthermore, in 2017, during its Universal Periodic Review at the Human Rights Council, Sri Lanka committed to taking steps to end discrimination on the basis of sexual orientation and gender identity. Since then, however, attempts to include SOGIE in the National Action Plan on Human Rights have been dropped due to opposition within the Cabinet.
Sri Lanka’s neighbours in South Asia have made progressive strides, with both India and Bhutan having decriminalized consensual same-sex sexual relations in recent years. Bhutan’s penal code provision regarding ‘sex against the order of nature’ had been enacted only in 2004 but activism and the recognition that the law would dissuade those in same–sex relations from actively seeking treatment for H.I.V. led to the decision to decriminalize.
In 2018, the Indian Supreme Court read down section 377 of the Indian penal code which was used to criminalize consensual same-sex sexual relations, and stated that its application to consensual relations between LGBT persons was unconstitutional as it was in violation of certain fundamental rights, including the right to equality.
In 2018, Pakistan enacted a law recognizing the human rights of transgender people, including the right to legal recognition of one’s preferred gender identity. Among other things, the understanding that most of the discriminatory legal provisions were remnants of British colonial rule and the need to move past such influence has led to these developments.
In Sri Lanka, homophobia is primarily seen as cultural issue, but there are indications that times are changing. Sections of the media now allow more space for discussions of LGBT persons’ human rights, even covering Pride events, while a Supreme Court judgment in 2016 noted that ‘consensual sex between adults should not be policed by the state nor should it be grounds for criminalisation’.
If a discriminatory law passed as late as 2004 can be discarded by Bhutan, then surely Sri Lanka too can follow its neighbours and break free from its colonial era shackles and guarantee equality for LGBT persons.
It is time that Sri Lanka steps up to fulfil its international human rights obligations by ensuring equality to all persons, including LGBT people, and that it delivers on the expectations raised by the President’s tweet and previous public pronouncements. Last year the President appointed an ‘Expert Committee’ to undertake the drafting of a new Constitution.
The inclusion of SOGIE as prohibited discrimination grounds in the Fundamental Rights protection provided by the (new) Constitution would be a first step in fulfilling the state’s international law commitments as well as rebuilding its relationship with LGBT people.
[1] https://twitter.com/GotabayaR/status/1366258501886955526
SriLanka-SOGI discrimination-News-opeds-2021-TAM (version in Tamil)
SriLanka-SOGI discrimination-News-opeds-2021-SIN (version in Sinhala)
Mar 30, 2021
An opinion piece by Laxmi Pokharel and Boram Jang, International Commission of Jurists Legal Advisors on Access to Justice for Women
In February 2021 hundreds of demonstrators in Kathmandu dressed in white mourning clothes and staged a mock funeral depicting the “death of justice” in Nepal. It came as a response to a lack of prompt and effective investigation in the rape and killing of a teenage girl. Bhagirathi Bhatta, 17, went missing on 4 February while she was going home from school. Her body was found a day later in a gorge near her village in Baitadi district in western Nepal. There was good evidence to suspect that she had been raped and then strangled.
Similar cases of killings after rape or sexual violence of minors have been reported over the past few years in Nepal and most of the perpetrators remain at large. The rape and killing of Nirmala Panta is another example. Despite public outrage, leading to several days of protests in Kanchanpur, those responsible for the case are yet to be identified. There has been a pattern of police negligence and abuses in the investigation, including the alleged mishandling of evidence and the wrongful arrest after which an innocent person was coerced to “confess” to the crime. Meanwhile, the actual perpetrator has so far escaped justice. This impunity enables not only the perpetuation of similar violence but also erodes public trust in the justice system.
Nepal’s Culture of Impunity for Rape and sexual violence
Nepalese society has been witnessing widespread sexual and gender-based violence (SGBV) against women for a long period of time. The increased number of cases of SGBV against women, including rape cases, in recent years is not just a matter of criminal law. Women who are subjected to SGBV are denied the right to a dignified life, reflected in the guarantees of the Nepalese Constitution and law and international human rights instruments.
The 2015 Constitution guarantees the rights against sexual violence as a fundamental right. The Article 38(3) states, “No woman shall be subjected to physical, mental, sexual, psychological or other forms of violence or exploitation on grounds of religion, social, cultural tradition, practice or on any other grounds. Such act shall be punishable by law, and the victim shall have the right to obtain compensation in accordance with the law.”
Nepal’s Penal Code has recently increased the sentence to those involved in rape from seven-year to life imprisonment. Sex without consent, including marital rape, is also criminalized by the Criminal Code of Nepal, consistent with international law. Despite the Constitutional guarantees, instances of rape are increasing in Nepal. Many cases of rape and sexual violence go unreported to police because of social stigma, lack of trust in the justice system, and lack of protection of victims. Even so, the statistics in 2019/20 police received reports of 2144 cases whereas 1480 cases were reported in 2017/18. In addition, there has been a spike in rape cases during the COVID – 19 pandemic, including a gang rape of a migrant woman in quarantine.
Media reports show that police are reluctant to file First Information Reports (FIRs) in many rape cases. Where a case is registered, victims are often compelled to involve in the out of court settlement, especially in those cases where such crimes are committed by people in power or committed by those under their protection. The few women who decide to fight for justice do not find usually a favorable environment in the State institutions, including the police stations and courts, due to prevalent social- cultural attitudes internalizing gender stereotypes.
Impunity for perpetrators contributes to perpetuation of sexual and GBV in Nepal. During her visit to Nepal in 2018, the UN Special Rapporteur on violence against women also expressed grave concern about reports suggesting that numerous cases related to sexual violence and the killing of women and girls had resulted in impunity for the perpetrators, despite referrals to the police or a court for redress.
In 2017, the National Human Rights Commission organized a public event inviting different stakeholders that describing how past impunity perpetuates present impunity. Despite credible evidence, those cases of rape and sexual violence during conflict, hardly any case has been thoroughly investigated with the objective of bringing those responsible to justice.
The refusal of State authorities to acknowledge the prevalence of SGBV during the conflict is reflected in the way it defined victims for the interim relief program (IRP). For example, the victims of SGBV and torture are excluded from the definition of conflict victims having access to IRP. This exclusion continues to be reflected in other policies of the state.
Statute of Limitation for Rape is Unreasonably Short
Statute of limitation often prevents women from accessing justice, as it has been made unreasonably short in the Penal Code. The statute of limitation for rape and other forms of sexual violence does not factor in the fear and stigma faced by victims.
Furthermore, although the statute of limitation period for rape and other forms of sexual violence has recently been extended from 35 days to one year in the Penal Code, this period is still too short. The Committee on the Elimination of Discrimination Against Women, in its 2018 concluding observation on Nepal’s sixth periodic report, raised concerns about the statute of limitations, underscoring that failed to take into account the stigma that women and girls face when reporting cases of sexual and gender-based crimes. The Committee said it fosters impunity for such crimes and recommended that the Government “repeal the statute of limitations provisions on the registration of cases of sexual violence in all contexts to ensure effective access for women to justice for the crime of rape and other sexual offences.”; However, the statute of limitation remains on the books in Nepal’s Criminal Code.
The statute of limitations does not comply with Nepal’s obligations under international law, and in particular, disregards the situation of children who are victims of rape and who will typically need more time to tell their stories. Although the law does not require victims to file an FIR as the police can initiate investigation ex-officio, hardly any cases have been investigated by police without victims having themselves reported the case. Thus, too short statute of limitation periods for rape cases impedes access to justice for survivors, particularly in relation to child victims who may find it difficult to raise a complaint before they reach the age of majority and for whom the long-lasting effects of rape and sexual violence are especially acute.
Furthermore, this extended time period still prevents victims of rape during the armed conflict to file cases against perpetrators, because these incidents have occurred more than a decade ago. Many of those instances of rape were crimes under international law that cannot be subject to statutes of limitations. Therefore, the statute of limitations for filing a rape case is contrary to the right to an effective remedy as ensured by Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR).
The Government has taken some positive steps, including an amendment to laws, providing provision for fast track system while handling VAW cases, but the gap between the formal protection and the efforts to provide justice in reality continue to hinder access to justice for victims.
To ensure access to justice for victims and survivors of SGBV and end the culture of impunity, the Government should repeal the statute of limitations provisions on the registration of cases of sexual violence in all contexts, including cases relating to rape and sexual violence perpetrated during the conflict. Those committing SGBV should not be offered political protection and the willful negligence of police to investigate crimes must lead to the accountability of the responsible police officers providing the possibility of reinvestigation on the case.
Furthermore, the Government should also take necessary measures for the effective implementation of a provision of fast track court and continuous hearing in SGBV case to end lengthy and ineffective court procedures. While these measures alone will not bring an end to the scourge of rape and sexual violence, they are a critical first step in bringing redress to survivors.
First published in The Himalayan Times in English and Nagarik News in Nepali.
Mar 18, 2021
An op-ed by Daron Tan, Legal Consultant at the ICJ Asia & the Pacific Programme
On February 19 2021, the Malaysian Federal Court found Malaysiakini, an online news outlet, guilty for criminal contempt of court for five comments published by third parties on its website. This judgment has generated significant criticism from lawyers, civil society and media groups for restricting press freedom and freedom of expression online in Malaysia.
On June 9, 2020, Malaysiakini published an article on the reopening of Malaysian courts, in line with the recovery phase of the movement control order. In the public comments section of this article, subscribers left five comments critical of the independence of the judiciary and the Chief Justice. The comments were related to the acquittal by the High Court of former Sabah chief minister Tan Sri Musa Aman for corruption and money-laundering, after the prosecution withdrew the charges.
Key takeaways from the judgment
In Malaysia, article 126 of the Federal Constitution empowers the Federal Court, Court of Appeal and High Courts of Malaysia to “punish” incidents of contempt of court.
Malaysiakini was found guilty because it was presumed to be the publisher of the purportedly contemptuous comments left on its article. Under section 114A of the Evidence Act 1950, anyone who is depicted as “the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication” is presumed to have published the content, and thus potentially held liable.
Malaysiakini was unable to rebut this presumption. The Federal Court found that Malaysiakini should have foreseen the kind of comments that its article would have attracted. In other words, Malaysiakini had constructive knowledge because it should have known what kind of comments was likely to be posted. This is even if the editorial team had no actual knowledge of the comments until alerted by the police, following which the comments were promptly removed.
According to the court, Malaysiakini also did not take all the necessary steps to filter the offensive comments before they were published, as its system only filtered foul language but not allegedly “offensive” substance.
For this, Malaysiakini was fined RM500,000 (approximately US$122,700), despite the Attorney General recommending a RM200,000 fine (approximately US$49,090).
Incompatibility with international human rights law
The judgment reinforces how Malaysia’s contempt of court provisions are incompatible with human rights law and standards, especially the right to freedom of expression online. Malaysia is not a party to the International Covenant on Civil and Political Rights (ICCPR) which contains strict guarantees protecting this right. Indeed, the ICCPR has 171 State Parties, leaving Malaysia as one of just 22 UN Member States out of its ambit. However, freedom of expression is part of customary international law, incumbent on Malaysia.
The International Commission of Jurists (ICJ) has previously highlighted this incompatibility in its 2019 report on online freedom of expression in Southeast Asia. Malaysia’s contempt of court offence is a common law doctrine and not codified statutorily, and a clear definition of criminal contempt of court has not emerged within case law. The ICJ has highlighted the need for reform to ensure clarity in definition, consistency in procedural limits and sentencing limits pertaining to criminal contempt cases, in line with the principles of legality, necessity and proportionality.
Additionally, onerous fines and other sanctions are a disproportionate and unnecessary means of protecting the reputation of the courts. The UN Special Rapporteur on freedom of expression has urged States to refrain from imposing disproportionate sanctions, such as heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression. The Manila Principles on Intermediary Liability, a set of guidelines for censorship and takedown laws, also made clear that intermediaries like Malaysiakini should be shielded from liability for third-party content.
The presumption of innocence is a fundamental rule of law principle. A corollary to this principle is that the burden of proof to establish guilt rests with the State in a criminal trial. The presumption of responsibility under section 114A of the Evidence Act reverses this burden of proof unto the defendant. This is therefore incompatible with right to fair trial as a general principle of law. The chairperson of the Constitutional Law Committee of the Malaysian Bar has pointed out section 114A is a “significant departure from the accepted notion where the prosecutor is required to prove all the central elements of an offence”. This is exacerbated by how the Malaysiakini judgment sets an unreasonably high standard of proof to rebut the presumption under section 114A, as defendants will need to prove they lacked constructive, instead of actual knowledge.
The above concerns emphasise the urgent need for these laws to be repealed or substantially amended. In this regard, the Malaysian Bar has recommended that section 114A of the Evidence Act be repealed, and for the law of contempt to be codified statutorily to provide clear and unequivocal definitions and guidance as to what really constitutes contempt. This is particularly important for concepts such as “scandalising the judiciary”, which are necessarily vulnerable to abusive application.
Domestic and regional implications of the case
Domestically, the Malaysiakini judgment creates a de facto requirement for all online news portals in Malaysia to monitor and filter user-generated comments for potentially offensive content even before they are published to avoid legal liability. This imposes an onerous burden on providers that will disincentivise them to perform their roles as providing a platform for the free flow of information and ideas, as they will have to engage in constant proactive monitoring or filtering content.
The judgment also raises questions about who else is considered a publisher and liable for third-party content. Are social media platforms like Facebook and Twitter liable for all content posted by their users? What about social media users and bloggers for comments made by other people on their content? This uncertainty may result in a chilling effect on free speech online. The lack of clarity demonstrates how vague, broad and overreaching these legal provisions are, such that people cannot know in advance how to regulate their conduct to conform with the law and avoid criminal liability.
Regionally, the judgment may set a worrying example for other Southeast Asian countries, many of which have already been unduly restricting freedom of information and expression online. These countries may invoke Malaysia’s example in efforts to expand these restrictions to intermediaries for third-party content using existing laws. In Thailand, service providers may be liable for false information perpetrated by its users if the service provider “cooperates, consents or acquiesces to the perpetration of an offence” under section 15 of the Computer-Related Crimes Act BE 2560 (2007). In Singapore, innocent publication or distribution “without the person’s authority, consent or knowledge, and without any want of due care or caution on that person’s part” is a defence to contempt of court under section 18 of the Administration of Justice (Protection) Act 2016. However, if constructive, instead of actual knowledge is required, then act’s reach would be widened significantly.
The current liability regime may result in further instances of disproportionate and unnecessary restrictions on online news outlets and other Internet intermediaries. Against the backdrop of the Internet increasingly becoming the new battleground for issues on freedom of expression and information, the Malaysiakini judgment reinforces the need for legal and policy reform in Malaysia to protect media freedom and online freedom of expression, in line with international human rights law and standards. It is also an opportune moment to become a party to the ICCPR, and examine and reform the other laws in Malaysia also incompatible with human rights law that may be abused to unduly restrict freedom of expression online, including the Sedition Act 1948 and the Communications and Multimedia Act 1998.
First published in Malay Mail on 16 March
