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/
May 9, 2021 | News
Southeast Asian governments must diminish the misuse of lawsuits to harass and silence civil society, so-called SLAPP suites, said more than 70 international experts, judges, public prosecutors, lawyers, members of civil society organizations, academics, and members of executive and State institutions from Indonesia, Malaysia, the Philippines, and Thailand at a discussion convened by the ICJ and partners on 7 and 8 May.
The participants at the regional dialogue on “The Role of Administration of Judicial Authorities and Legislators in the Fight against Strategic Lawsuits Against Public Participation (SLAPPs) in Southeast Asia” addressed the proliferation of SLAPP suits, which SLAPP suits are undertaken with the principal objective of curtailing or deterring public criticism or opposition to certain activities by the entity initiating the legal action. SLAPP lawsuits typically have a “chilling effect” on the exercise of freedom of expression and other human rights and fundamental freedoms, including freedom of opinion and expression (article 19 of the International Covenant on Civil and Political Rights); freedom of peaceful assembly (article 21); and the right to take part in the conduct of public affairs (article 25).
Irene Khan, Special Rapporteur on the promotion and protection of freedom of opinion and expression, stated that it is necessary to bring exiting laws in compliance with international law and standards, including with the principles of legality, proportionate, necessity, legitimate purpose, and non-discrimination, and called for defamation laws to be decriminalized.
Prof. Surya Deva, Vice-Chairperson, the Working Group on the issue of human rights and transnational corporations and other business enterprises, referred to several anti-SLAPP provisions that, in his view, are inadequate, including section 161/1 and 165/2 of Thailand’s Criminal Procedure Code. He pointed out that while the legal reform needed, States also need to train relevant stakeholders who will make use of these. Internal or soft guidance can also be a helpful guideline on how to exercise discretion, and more resources should be allocated to raise awareness.
Several participants, while noting their duties to protect rights to access to justice and the power imbalance between the parties in SLAPP lawsuits, called for a robust legal frameworks and policies that prevent the filing SLAPPs in the first place and allow relevant authorities to identify, call out and dismiss them as soon as they are filed.
In the jurisdictions where such mechanisms exist, participants highlighted the need to address certain gaps to allow authorities to promptly and effectively exercise their power, and the importance of guidelines that can guide the relevant authorities on how to handle and proceed with SLAPPs in a coordinated effort to raise awareness among justice sector actors on this topic.
In the absence of a specific Anti-SLAPP legislation, participants also shared their experience using existing tools in their domestic laws as a basis in combating SLAPPs, including several provisions of the constitutions, other early dismissal mechanism provided in procedural laws, provisions under international laws, and encouraged their peers to think out of the box.
Reforming individual causes of action that commonly form the basis of SLAPPs, such as defamation, to ensure their compliance with international law and standards were also discussed by participants as another approach that the governments should consider, in combination with other measures.
Remedies for persons negatively affected by SLAPP lawsuits were encouraged.
The Workshop was conducted in collaboration with Business & Human Rights Resource Centre (BHRRC); Philippine Judicial Academy; the Supreme Court of the Republic of the Philippines; Lembaga Kajian dan Advokasi Independensi Peradilan (Indonesian Institute for Independent Judiciary or LeiP); Human Rights Commission of Malaysia (SUHAKAM) and AmerBON Advocates.
The speakers at the workshop were: representatives of all partner organizations; Nikhil Dutta, Global Programs Legal Advisor of the International Center for Not-for-Profit Law (ICNL); Joel Hernández García, Inter-American Commission on Human Rights’ Rapporteur on the Rights of Human Rights Defenders and Justice Operators; Irene Khan, Special Rapporteur on the promotion and protection of freedom of opinion and expression; and Prof. Surya Deva, Vice-Chairperson, the Working Group on the issue of human rights and transnational corporations and other business enterprises.
May 7, 2021 | News
As the European Union and India prepare for a meeting of their leaders on 8 May they should jointly commit to a strategy for protecting all people in India from the devastating second wave of the Covid-19 pandemic now ravaging the country, said the ICJ today.
India has faced unprecedented impact from the pandemic since 15 April, with some 400,000 daily cases and a daily death toll now officially around 4,000 and likely even higher. India’s healthcare system and infrastructure has strained to meet the needs of people for oxygen, medicines, testing, hospital beds, ambulances, and doctors. India, a vaccine-production powerhouse globally, has only vaccinated just over two percent of its population and is now facing severe shortage of vaccines.
“The scenes emerging from India are horrifying but unfortunately not unexpected. This global pandemic demands global cooperation and national competence and this is the moment for the EU and India to demonstrate cooperation and competence. The Indian government was lecturing the world about its performance instead of preparing for the predictable resurgence of the pandemic, and now it is busy silencing people demanding help or criticizing the government’s poor performance,” said Sam Zarifi, ICJ’s Secretary-General.
The ICJ added that the performance of the EU and its Member States in international cooperation to tackle COVID globally left much to be desired, particularly as they have resisted supporting a loosening of intellectual property restrictions that have hampered efforts at wider vaccine production and distribution.
“At the same time, the proposal by India and South Africa for removing global patent restrictions for vaccine protection was rejected by some of the wealthiest governments, including the EU, who seem more focused on economic interests rather than global responses to a global pandemic,” said Zarifi.
The EU has already agreed to assistance to India through its Civil Protection Mechanism and individual EU countries have delivered some needed supplies and vaccines.
“The EU and Member States should increase aid efforts to India and immediately reverse their opposition to waiving intellectual property restrictions to vaccine production under the World Trade Organization TRIPS agreement, especially now that the United States has indicated it would end its obstructionism. The EU should not be on the wrong side of history as the last obstacle to global vaccine production,” Zarifi said.
The ICJ also urged the EU to remind the Indian government of its obligations under international law and guarantees of the Indian Constitution to protect the rights of people in India to life and to health.
“The summit between the European Union and India brings together powerful States who should use this opportunity to align their actions at the global, regional, and national levels to protect people from the pandemic,” said Zarifi. “International law provides the framework for cooperation and both the EU and India must do a better job of complying with their international legal obligations.”
Additional Information
India’s judiciary has at various levels has severely criticized the Indian Central and State governments and issued orders for urgent remedial responses.
In particular, the Indian Supreme Court has ordered the central government to:
- ensure adequate supply of oxygen through provision of emergency buffer stock by the central government in collaboration with state governments;
- develop a national policy on admission to hospitals and in the interim ensure that no patient is denied access to hospitals or essential drugs; and
- recognize vaccines as a “valuable public good”.
The Supreme Court has also questioned the constitutionality of India’s vaccine policy due to differential pricing for state governments, the central government and private hospitals, stating that the government needs to revisit the policy so that it “withstands the scrutiny of Articles 14[right to equality] and Article 21[right to life] of the Constitution”.
Additionally, the Supreme Court has suggested that the Central Government take steps to ensure access to essential drugs as well as to enhance its healthcare workforce as needed, in line with India’s constitution and its international legal obligations.
As party to the International Covenant of Economic, Social and Cultural Rights, India is required to take all necessary measures to ensure the “prevention, treatment and control of epidemic” and to create conditions “which would assure to all medical service and medical attention in the event of sickness”. Further, these obligations, as stressed by the UN Committee on Economic, Social and Cultural Rights entail removing any discrimination in vaccine access; guaranteeing affordability and economic accessibility of vaccines for all people; prioritizing physical accessibility to vaccines, especially for marginalized groups and people living in remote areas; and guaranteeing access to relevant health information.
Additional Reading
EU: prioritize rights at India Summit, provide essential medical supplies, urge India to free rights defenders, address abuses – ICJ Press Release, 3 May 2021
Indian Government Fails to Protect Right to Life and Health in Second Wave of COVID-19 Pandemic – ICJ Press Release, 29 April 2021
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, t: +66-62-702-6369; e: osama.motiwala(a)icj.org
May 3, 2021 | News
European leaders at the May 8, 2021 summit with their Indian counterparts should prioritize the deteriorating human rights situation in India, including the right to health, the ICJ and seven other organizations said today.
With a devastating Covid-19 crisis affecting the country, Europe should focus on providing support to help India deal with the acute shortage of medical supplies and access to vaccines. At the same time, European leaders should press the Indian government to reverse its abusive and discriminatory policies and immediately release all human rights defenders and other critics who have been jailed for peacefully exercising their rights to freedom of expression and peaceful assembly.
The organizations are Amnesty International, Christian Solidarity Worldwide (CSW), Front Line Defenders (FLD), Human Rights Watch, the International Commission of Jurists (ICJ), International Dalit Solidarity Network (IDSN, International Federation for Human Rights (FIDH), and World Organisation Against Torture (OMCT).
India has the fastest-growing number of Covid-19 cases in the world and is facing severe healthcare shortages – of testing capacity, medicines, ambulance services, hospital beds, oxygen support, and vaccines. The European Union and its member states should reconsider and reverse their opposition to India and South Africa’s proposal before the World Trade Organization to temporarily waive certain intellectual property rules under the TRIPS Agreement to facilitate increased manufacturing and production of vaccines and related products globally, until widespread vaccination is in place the world over.
The Covid-19 crisis has also highlighted growing human rights concerns in India.. Faced with widespread criticism of its handling of the pandemic, the Indian government has tried to censor free speech, including by ordering social media content taken down and criminalizing calls for help. The government has also ignored calls from the United Nations Office of the High Commissioner for Human Rights for countries to release “every person detained without sufficient legal basis, including political prisoners, and those detained for critical, dissenting views” to prevent the growing rates of infection everywhere, including in closed facilities such as prisons and detention centers.
Instead, the Hindu nationalist Bharatiya Janata Party (BJP)-led government has increasingly harassed, intimidated and arbitrarily arrested human rights defenders, journalists, peaceful protesters, and other critics, including under draconian sedition and counterterrorism laws.
The authorities have jailed a number of human rights defenders, student activists, academics, opposition leaders, and critics, blaming them for the communal violence in February 2020 in Delhi as well as caste-based violence in Bhima Koregaon in Maharashtra state in January 2018. In both cases, BJP supporters were implicated in the violence. Police investigations in these cases were biased and aimed at silencing dissent and deterring future protests against government policies, the groups said.
The government uses foreign funding laws and other regulations to crack down on civil society. Recent amendments to the Foreign Contributions Regulations Act (FCRA) added onerous governmental oversight, additional regulations and certification processes, and operational requirements, which adversely affect civil society groups, and effectively restrict access to foreign funding for small nongovernmental organizations. In September 2020, Amnesty International India was forced to halt its work in the country after the Indian government froze its bank accounts in reprisal for the organization’s human rights work, and many other local rights groups struggle to continue doing their work.
The Indian authorities have also enacted discriminatory laws and policies against minorities. Muslim and Dalit communities face growing attacks, while authorities fail to take action against BJP leaders who vilify minority communities, and against BJP supporters who engage in violence. The Indian government has imposed harsh and discriminatory restrictions on Muslim-majority areas in Jammu and Kashmir since revoking the state’s constitutional status in August 2019 and splitting it into two federally governed territories.
The authorities carried out counterterrorism raids in October on multiple nongovernmental organizations in Kashmir and Delhi, and a newspaper office in Srinagar to silence them, causing a chilling effect on human rights defenders who fear for their safety.
Yet, despite the considerable deterioration in the country’s human rights record under Prime Minister Narendra Modi, the Indian government has effectively shielded itself from the international scrutiny and reactions that the seriousness of the situation should have warranted. Focusing on strengthening trade and economic ties with India, the European Union and its member states have been reluctant to formulate public expressions of concern on human rights in India, with the exception of occasional statements focused solely on the death penalty.
To read the full statement, click here.
Contact:
Sam Zarifi, ICJ’s Secretary General, t: +66 627026369, e: sam.zarifi(a)icj.org
Apr 30, 2021 | News
The ICJ today condemned the Sri Lankan cabinet’s approval of the proposed ban on face coverings, which, if adopted by Parliament would directly discriminate against Muslim women
The Cabinet on 27 April approved the proposal put forward by Minister of Public Security Sarath Weerasekara on March 13 to ban face coverings including the burqa and niqab citing national security grounds.
The ICJ has called on the Sri Lankan Parliament to categorically reject this discriminatory proposal as a violation of the right to freedom of religion.
“The Sri Lankan Government’s justification for banning face coverings rings hollow during a time when it has quite sensibly made the wearing of face masks in public mandatory to address the COVID-19 pandemic,” said Ian Seiderman, ICJ’s Legal and Policy Director.
The Government of Sri Lanka temporarily banned full-face coverings by way of an emergency regulation in the aftermath of terrorist attacks on Easter April 2019, in which 269 people were killed and at least 500 others injured. This ban resulted in the stigmatization and harassment of Muslim women, including those who were only wearing a hijab (head covering).
“While the Sri Lankan Government has an obligation to protect its inhabitants from the threats to their lives and well-being, that protection is a part of, and not in conflict with, its overall duty to protect human rights,” said Ian Seiderman.
Freedom of religion and belief is guaranteed under article 18 of the International Covenant on Civil and Political Rights (ICCPR), to which Sri Lanka is a party. Freedom to have or adopt a religion or belief of one’s choice is similarly guaranteed by Article 10 of the Sri Lankan Constitution. Article 14 (1) (e) ensures the freedom to manifest one’s religion in worship, observance, practice and teaching.
The UN Human Rights Committee has affirmed that under the ICCPR “the observance and practice of religion or belief may include not only ceremonial acts, but also such customs as the wearing of distinctive clothing or head coverings.”
The ICJ concurs with Ahmed Shaheed, the UN Special Rapporteur on Freedom of Religion or Belief, who has stressed that “burqa bans are incompatible with international law guarantees of the right to manifest one’s religion or belief and of freedom of expression.”
“While the authorities may take necessary and proportionate steps to confirm a person’s identity to meet a specific security concern, a blanket ban on face coverings in the name of national security does not hold water,” Seiderman said. “It would invariably result in discriminatory practices and lead to the stigmatization of Muslim women,” he added.
Under ICCPR article 18(3) any limitation on freedom of religion must be non-discriminatory and must be necessary and proportionate to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The UN Human Rights Committee has consistently held that under international law, a blanket ban on face coverings cannot be justified as necessary or proportionate to its stated legitimate aim of promoting public safety, while recognizing the need for States, in certain contexts, to be able to require that individuals show their faces. Even this restriction, however, would generally only apply to veils that fully cover faces and not, for example, to head coverings.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
