An opinion piece by Vani Sathisan, International Legal Adviser for the ICJ in Myanmar.
The world observes Human Rights Day on 10 December to mark the momentous strides in international human rights law since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. In Myanmar, recent political changes have been both momentous and transformative.
Nonetheless, what was proclaimed by the UDHR as the “equal and inalienable rights of all members of the human family”, continue to be infringed upon by the arbitrary and highly subjective interpretation and application of laws, some of them dating back to British colonial times.
Successive governments in Myanmar have used overly broad or vaguely defined laws to curtail freedom of expression that is protected under international law.
They often invoke the justification, typically inappropriately, of protecting national security, or to prevent public disorder or avoid outraging the religious feelings of a class.
None of these efforts have served or can serve to address or respond to sectarian and religious violence.
On behalf of the ICJ, I have observed trials of those arrested and detained on criminal defamation charges for their Facebook posts that allegedly defame either the Tatmadaw or a political leader.
One of the laws used to charge the accused is the Penal Code, first drafted in 1860.
The ICJ released a briefing paper last month highlighting how the enforcement of Myanmar’s defamation laws can result in violations of a number of international laws and standards protecting human rights, and also have an overall chilling effect on the freedom of opinion and expression and freedom of assembly in the country.
Various provisions of the Penal Code have been used in the past to criminalize free expression and peaceful demonstrations and imprison activists and hundreds of political dissidents, such as popular political satirist Zarganar.
Just last week, authorities arrested and charged five men under Section 505b of the Penal Code with “causing fear or alarm to the public” after they published a calendar referring to Myanmar’s persecuted Muslim Rohingya as an official ethnic minority.
The Myanmar government refuses to recognize the Rohingya as citizens, claiming that they are “illegal” migrants from neighbouring Bangladesh. The accused have been reportedly re-arrested despite pleading guilty to publishing materials that could “damage national security” and paying a fine of one million kyat.
Others in Myanmar face criminal sanctions simply because their acts of expression were perceived to be at odds with particular interpretations of Buddhism, Myanmar’s majority religion.
Section 295a, enacted by colonial authorities in 1927 to curb communal tension, states that, “deliberate and malicious intention of outraging the religious feelings of any class by insulting its religion or religious beliefs” shall be punished with imprisonment, or with fine, or with both.
In Myanmar, courts have convicted individuals in the absence of evidence of any deliberate and malicious intent to insult a religion.
In late 2008, several activists, including monks and nuns, were imprisoned with hard labour on 295a charges.
Earlier this year, Htin Linn Oo, a writer and National League for Democracy information officer, was sentenced to two years imprisonment with hard labour under 295a for publicly questioning the Buddhist credentials of those using Buddhism to incite violence.
A Buddhist himself, he earned the wrath of nationalist monks who demanded a tougher punishment outside the District Court, which rejected his appeal, reportedly stating it “should not interfere” with the lower court’s decision.
Interestingly, the translated version of a court order in another 295a case in Myanmar shows no regard whatsoever to any evidence of a “deliberate and malicious intent to insult a religion” as required under the charge.
It may be that the defendant had caused offence to some within the Buddhist community. But did he commit a crime punishable under Section 295a?
The UN Human Rights Committee established by the International Covenant on Civil and Political Rights (ICCPR)—a treaty which carries many of the principles of the UDHR into international law—emphasizes that “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant”.
The only limited exception under the Covenant would be for proportionate and non-discriminatory measures to prohibit “advocacy of…religious hatred that constitutes incitement to discrimination, hostility or violence”.
Section 295A falls far short of this threshold. (The ICCPR has 168 state parties, but Myanmar is not one of them, despite its pledge to consider international recommendations during the UN Universal Periodic Review to become one.)
The Rabat Plan of Action, an outcome of a four-year initiative by the UN Office of the High Commissioner for Human Rights, has underscored that States should ensure that the three part test for restrictions of freedom of expression—legality, proportionality and necessity—also applies to cases of incitement to hatred.
Article 20 of the ICCPR requires this high threshold because limitation of speech must remain an exception and must be “provided by law, be clearly and narrowly defined to serve a legitimate interest, and be necessary in a democratic society to protect that interest.”
The ICJ has observed and documented the pre-trial and trial phases of some of these cases and has concluded that they violate international standards of fair trial.
Hearings sometimes last less than five minutes and bail has been denied repeatedly to an accused suffering from poor health.
These are indicative of the struggles of Myanmar’s judiciary in adjudicating politically sensitive cases with impartiality and competence.
These prosecutions undermine the rule of law in Myanmar and shed light on how Myanmar laws are inconsistent with human rights, including freedom of opinion and expression, freedom of thought, conscience, and religion, and the right to equality before the law without discrimination.
Prosecutors must act in the interests of justice, drop charges inconsistent with human rights and not push for cases without sufficient evidence to back the charges.
The government and the parliament also play critical roles in drafting, amending and repealing laws to anticipate and account for the possibility of aggravated discrimination, and to prevent the entrenchment of institutionalized social intolerance.
Former UN High Commissioner for Human Rights Navi Pillay has described the freedom of expression as “among the most precious and fundamental of our rights as human beings.”
That means respecting the rights of others to their opinions.
Myanmar must cultivate respect for the rule of law.
Those arbitrarily and unfairly languishing behind bars deserve justice.
Calling for their release is a duty for all those who believe in the right to freedom of opinion and expression.