Burma: Role of freedom of expression in democratisation processes
29 Mar 2012
Presentation to the Conference on Media Development in Myanmar, Organised by the Ministry of Information and UNESCO Rangoon, Myanmar, March 19-20, 2012
I am deeply honoured to be here today – in a Myanmar in dialogue and open exchange.
I am very honoured and very surprised - I don’t think I ever expected to be here today – yet time and time again world events and sheer human courage teach us that change is not to be predicted.
This is the story of the last 14 months. From January 2011 many of us, human rights activists, have been riding the roller coaster of human rights change, beginning with Tunisia and taking us right through to today in Myanmar.
Together we have witnessed the changes of these last months with some amazement and, of course, a degree of scepticism – greeting them with cautious optimism.
What is certain is that these changes that have spread across the Middle East and which are taking place in Myanmar must make us think again. For all of us, all who never imagined change would come in that way at this time, we have much to be humble about and much to reassess. Few of us saw this change coming and for those who did, very few, if any, thought they would bring democratisation.
The reality is that for all our expertise, even with all our data and despite all our reporting and careful analysis, it seems that still we under estimated a number of things. What those aspects are precisely remains for us to determine together. But what is clear already is that a main lesson that Myanmar teaches us all and experts in particular, is humility.
So today we are here in Yangon – present to offer our congratulations for the important steps already taken, to highlight our concerns over what has not yet been done, and, most importantly, to speak together about the challenges that lie ahead.
In this session, I will be focusing on the place of freedom of expression / media laws and legal reforms in the process you have undertaken.
I - Why does freedom of expression and freedom of the media matter?
Before focusing on the importance and role of a proper legal framework, we may need to reiterate a few things about why freedom of expression, freedom of the media matter.
Human rights are the foundation of human dignity, freedom, justice and peace. The 1948 Universal Declaration on Human Rights laid out equal rights for all people and three fundamental principles governing human rights: rights are universal, meaning that rights apply to everyone whoever or wherever that person is; inalienable, in that they precede state authority and are based on peoples’ humanity; and indivisible in that all rights are of equal importance.
The UDHR was also intended to provide a common framework and understanding across nations for preventing the religious, racial, political and sectarian strife which plagued humanity throughout its history, culminating in the Second World War. This idea is forcefully expressed in the preamble of the UDHR, which explicitly mentions freedom of speech and beliefs together as the highest aspirations of the common people.
Expression and Information are two sides of the same coin.
At its very first session, in 1946, the UN General Assembly adopted Resolution 59(I) which states: “Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.”
ARTICLE 19 considers freedom of expression as a cornerstone right - one that enables other rights to be protected and exercised. The full enjoyment of the right to freedom of expression is central to achieving individual freedoms and developing democracy and plays a critical role in tackling the underlying causes of poverty.
It makes electoral democracy meaningful and builds public trust in administration. Access to information strengthens mechanisms to hold governments accountable for their promises, obligations and actions. It not only increases the knowledge base and participation within a society but can also secure external checks on state accountability, and thus prevent corruption that thrives on secrecy and closed environments.
Freedom of expression and freedom of information are crucial to democracy and the enjoyment of other rights. The importance of freedom of expression was particularly emphasised by the Inter-American Court of Human Rights which stated:
Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade union, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its opinions, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.
If people are not free to say what they want, to disseminate information and expression their opinion on matters of political interest, and to receive information and ideas from a variety of sources, then they will not be able to case an informed vote or to participate in governance in other ways. The right to freedom of expression and freedom of information are also key in any system for protecting and promoting the enjoyment of all other human rights – whether civil or political rights, or economic, social and cultural rights.
The guarantee of freedom of expression applies with particular force to the media. The European Court has consistently emphasised the “pre-eminent role of the press in a State governed by the rule of law” and has stated: “Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society.
II - Freedom of expression and Media legislation: why do laws matter?
The rule of law is to a stable sustainable society what the skeleton is to the human body. Without a strong, stable, unbroken and nourished skeletal underpinning the human body falls, fails, simply cannot function in any reliable manner. With a sound skeletal framework in place, the human body can absorb the stresses of it movements and its ambitions: we can sit, stand, run, create, defend, protect, assert.
For human society, it is law that is the essential skeleton on which all stable and sustainable functioning relies. Sustainable society – which requires right-full and responsible citizens, a stable basis for sound economic enterprise, open space for scientific innovation and artistic creativity – cannot stand unless it is underpinned by a vigorous rule of law supported an independent judiciary.
Establishing, maintaining and abiding by this system of law are the principal functions of government. Under the doctrine of the separation of powers there is a tripartite of complementary roles to be fulfilled: those who have the formal power to create legislation – the legislators; the judicial branch which has the formal power to interpret legislation and the executive branch which can act only within the powers and limits set by the law.
Not all law are good laws. Indeed, there is no equality amongst laws. There are laws that meet what the international community has determined to be good standards.
And there are laws that don’t.
Inequality, repression, discrimination, corruption can be embedded by, through and in law. Racism was entrenched in law by the apartheid regime of South Africa. Colonial power was entrenched in a multitude of laws. Nazi Germany’s obsession with legislation and regulation enabled the mass extermination of millions of Jews and thousands of others. History has shown us that systematic repression, mass scale suppression and grave human rights violations have often been formally justified, if not entrenched, in law – in bad law.
These examples and many others prompted the international community to work together to define, determine, agree on standards for good law; prompted governments to establish the United Nations to set those standards, agree a multitude of conventions and treaties, and establish international courts.
III - International standards on freedom of expression
So for the laws to play their role as far as freedom of expression and freedom of the Media are concerned, they must meet a set of international agreed standards. And in the best case scenario, they should also seek to meet existing best practices within the international community.
There is no space or time here to present all international or regional standards related to freedom of expression, freedom of information or freedom of the media.
One excellent point of departure for an overview is a recent interpretation by the Human Rights Committee of article 19 of the ICCPR. General Comment 34 provides an authoritative interpretation of international standards regarding freedom of expression, including freedom of the media and freedom of information.
For the purpose of this presentation, I will highlight a few broad elements pertaining to the internationally agreed interpretation of freedom of expression.
First, the right to freedom of expression and freedom of information are protected by a number of international human rights instruments that bind states. Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to freedom of expression in the following terms:
Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.
The UDHR, as a UN General Assembly Resolution, is not directly binding on states. However, parts of it, including Article 19, are regarded as having acquired legal force as customary international law.
The International Covenant on Civil and Political Rights (ICCPR) elaborates upon and gives legal force to many of the rights articulated in the UDHR.
It is a pity that Myanmar has not yet ratified the ICCPR and indeed my first recommendation will be that it does so as a matter of urgency and priority. In his speech this morning, the honourable Minister of Information made reference to articles 19 and 20 of the ICCPR and to article 10 of the European Convention. I take these references as indicating the Minster’s and the Union’s understanding of the importance of such international benchmarks.
As of 20 January 2012, the ICCPR has 167 states party to respect its provisions and implement its framework at the national level.
Article 19 of the ICCPR guarantees freedom of expression and freedom of information as follows:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Second, international law protects the right to hold opinions as well as expression generally.
The right to hold opinions is an absolute right under international law, in recognition of the illegitimacy of the state trying to either prohibit certain opinions or to force individuals to adopt certain opinions. Article 19 of the ICCPR protects all forms of opinion. General Comment No 34 of the Human Rights Committee states:
9. This is a right to which the Covenant permits no exception or restriction. Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or impairment of the opinions they may hold, constitutes a violation of article 19, paragraph 1
10. Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.
Third, international law defines the modes of expression covered by freedom of expression and freedom of information broadly. Article 19 covers “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” (emphasis added).
The Human Rights Committee has recently affirmed that these words require a very broad interpretation. It has stated:
11. Paragraph 2 requires States parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.
12. Paragraph 2 protects all forms of expression and the means of their dissemination. Such forms include spoken, written and sign language and such non-verbal expression as images and objects of art. Means of expression include books, newspapers, pamphlets, posters, banners, dress and legal submissions. They include all forms of audio-visual as well as electronic and internet-based modes of expression.
Fourthly, freedom of expression includes freedom of information, including the right to access government-held information. As recently expressly confirmed by the Human Rights Committee, Article 19(2) embraces a right of access to information held by public bodies. In the ASEAN region, Indonesia has adopted a freedom of information legislation while in China, a number of large cities, states and municipalities have done the same. Cambodia is currently considering an access to information law.
Fourth, freedom of expression standards also includes Media freedom. The issue has been the object of a vast number of interpretations and jurisprudence around the world. For the purpose of this presentation, I will highlight what I think are some of the key elements of media freedom under international human rights law.
a) Pluralism: Governments are under a duty, indeed a positive obligation to promote pluralism within, and ensure equal access of all to, the media, that is to ensure that citizens have access to diverse and reliable sources of information on topics of interest to them.
b) Independence: In order to promote pluralism and protect the right to freedom of expression, it is imperative that the media be permitted to operate independently of government control. This ensures that the media plays its role as public watchdog and that the public has access to a wide range of opinions, especially on matters of public interest. This has important implications for media regulatory models.
c) In terms of regulation, for the print media, there is overall agreement that self-regulation is the best system for promoting high standards in the media.
d) With regard to the broadcast media, it may be more strictly regulated than print media in order to manage the limited available spectrum, but this regulation should follow strict principles:
- No State monopoly over broadcasting
- No prior censorship
- Three kinds of broadcasting should be able to co-exist and access the airwaves: public, private and community
- A regulatory body, fully independent from political and economic interest, shall be responsible for issuing broadcasting licences and for ensuring observance of licence conditions
The limits to freedom of expression, including freedom of the Media: the three part test
Yet, the right is freedom of expression, under international human rights law, may be restricted in order to protect a legitimate aim, amongst others, the rights of others, and public order, if it is done by law and if it is "necessary in a democratic society" to do so.
To be legitimate, a restriction to freedom of expression must meet a three part test:
- First, it must be prescribed by law;
- Second, it must pursue a legitimate aim, such as respect of the rights or reputations of others, protection of national security, public order, public health or morals; and
- Third, the restriction should be necessary to secure the legitimate aim and meet the test of proportionality.
To keep with the focus of this presentation, I will elaborate on the first part of this test and what constitutes an appropriate law.
The following points were developed in a recent brief drafted by ARTICLE 19 to assist with constitutional reform in Tunisia.
- “To be characterised as a law, a norm must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.
- Ambiguous, vague or overly broad restrictions on freedom of expression or freedom of information which fail to set the exact scope of their application are therefore impermissible under Article 19(3).
- General Comment No 34 further provides that for the purpose of Article 19(3) a law may not confer unfettered discretion for restricting freedom of expression on those charged with executing that law.
- Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not. This is a particularly important requirement in countries, such as Myanmar where a myriad of laws have been developed.
- The requirement that the law be sufficiently precise for this purpose is closely related to the requirements of necessity and proportionality (the third part of the test above mentioned). It ensures that restrictions on freedom of expression are only employed for legitimate protective objectives and limits the opportunity to manipulate those restrictions for other purposes”.
IV - The legislative framework for freedom of expression in Myanmar
I think it is fair to say that many laws in Myanmar today do not meet the standards I have presented so far.
A number were inherited from the colonial era and have not been revised even though they were established to defend a state of affair that is no longer recognised as legitimate.
A large number of current laws imposes restrictions which simply put do not meet any internationally recognised standards of legitimate restrictions.
To cite just a few:
Section 122 of the Penal Code of Burma 1957 prohibits any criticism of the government or the State (criminal defamation).
Printers and Publishers Registration Act 1962 establishes the government’s Press Scrutiny and Registration Division and broadcasting censorship board, that approve all press, television, radio and cinema content before they can publish
The Official Secrets Act 1923, Emergency Provisions Act 1950, Electronic Transactions Act 2004 prohibit the collection, possession or dissemination of information or “false news” which is “detrimental to national interests”, and provide for 14 year terms of imprisonment or the death penalty
The Burma Wireless Telegraphy Act 1933, as amended in 1995 and 1996, Computer Science Development Act 1996, Television and Video Act 1996 aim to stop people from privately disseminating or receiving information, prohibiting the possession or use of radios, fax machines, mobile phones, modems, VCRs, or computers without a licence from the government and provide for up to 15 years imprisonment.
In addition to the problematic legislative framework for the protection of the right to freedom of expression, the judicial system lacks independence and does not yet operate as a safeguard against arbitrariness and to protect the rule of law.
A first positive step: The 2008 Constitution
Chapter 8 of the Constitution is titled ‘Citizen, Fundamental Rights and Duties of the Citizens’ and contains the right to freedom of expression under Article 354:
“Every citizen shall be at liberty in the exercise of the following rights, if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquillity or public order and morality: a) to express and publish freely their convictions and opinions;...”
This is a good start. Unfortunately, the fundamental rights in Chapter 8 are undermined by the supremacy of the “Defence Services”. The Defence Services are permitted to participate in the State’s executive function (Article 6), revoke any of the fundamental rights to maintain “peace” (Article 382), and are – rather than the judiciary – responsible for safeguarding the Constitution (Article 20(e)).
In spite of its shortcomings, the 2008 Constitution laid the ground for the democratisation reform which we have been witnessing for the last 12 months.
A second step: the June 2011 reform
As highlighted in the IMS Report of January 2012, the June 2011 reform initiated by the Government relaxed the provisions of the 1962 Publications Act for a selected group of journals and magazines (health, children, technology and sports sector publications) which are no longer required to submit their publications for advance approval. Unfortunately, there are a number of so-called Category II journals and magazines (politics, religion, business, education and crime) which are still the object of prior review and prior censorship.
Further, according to the IMS report, “almost half the 358 publications that are non-news, non-current affairs and less sensitive have been declared exempt from pre-publication censorship, but they are governed through a pre-deposited fine system in the event of publishing an ‘unhealthy’ story. Thus, an environment of self-censorship has been created while exempting publications from pre-scrutiny.. Under the new guidelines of June 2011, a Complaint Commission has been established that will conduct post-publication review of published content for any transgression of the Four National Objectives that may adversely affect national solidarity and harmony or defame anyone...”
Still, the change initiated in June 2001, and the subsequent release of all journalists and a number of political prisoners, did signal a profound change and move towards democratic reforms.
V - RECOMMENDATIONS
Clearly Myanmar has adopted an incremental, highly controlled, step by step approach to the change and democratisation process. This approach was highlighted by the Minister in his speech this morning.
The first step consisted in easing the restrictions of the 1962 Publications law as part of the June 2011 reform. The country is currently engaged in the second step, the development of a new media law.
In view of the above presentation on “good legislation”, what kind of recommendations can we make in the context of an incremental approach?
Ratify the ICCPR: this must be an essential step as the international framework should guide the democratization process. It is what will give the reforms its international and national legitimacy and it is what will give assurance that this is a genuine process of reforms.
Transparency: The text of the draft laws or new policies must be made available to the people of Myanmar. Right now, the rumours regarding new media laws and the absence of transparency over their content are contrary to the objectives of the process and are not effective. Constructive engagement with these texts from a variety of actors can only strengthen the text itself and most importantly their legitimacy. There is a high degree of anxiety within the media sector in Myanmar which is particularly detrimental to the twin objectives of trust and responsibility which were identified by the Minister of Information as key to the reform process.
Repeal existing restrictive laws: the adoption of new laws is probably an effective and efficient approach to the reform agenda, given the myriad of older laws that are currently unduly restricting freedom of expression, amounting to a maze of restrictions and slowing down the reform process.
At the same time, it is vital that these older laws be repealed (or superseded by new ones where relevant) for otherwise they will create great legal uncertainty, and remain threatening.
A new Press Law?: It is generally accepted that “while the broadcast media may necessitate state regulation, only to prevent chaos on the airwaves, such a necessity does not extend to the print media. For this reason, most democracies have moved to abolish their press laws and regulate the print media through laws of general application. Indeed, the experience of transitioning democracies in Eastern Europe after the fall of communism show that even young democracies with an immature free media do not need a press law.”
ARTICLE 19 always tends to approach specific press laws with caution. Our experience is that such laws are unnecessary, as they tend to be used by governments as an instrument to excessively restrict the right to freedom of expression and information.
This said, we engage constructively and with open mind with many governments around the world. Most recently, the government of Tunisia has adopted a new press law. ARTICLE 19 has provided a number of confidential legal reviews of various drafts.
I will suggest that the Government of Myanmar consider the press law adopted by Tunisia. It presents shortcomings but a number of positive aspects which could be emulated. I am citing this example given the fact that Tunisia has initiated a similar process of reform and democratization a year ago.
Regulation of the Broadcasting sector: The broadcasting sector needs to be reformed as well to ensure for a diverse and pluralistic broadcasting sector. I have identified above some of the key characteristics of a “good” broadcasting law. In ARTICLE 19’s experience, a first step towards ensuring an appropriate regulation of the broadcasting sector could be the establishment of a fully independent regulatory body. There are many examples around the world of laws establishing such bodies which could be helpful in this process.
Multi-stakeholder / participatory approach: As suggested by ARTICLE 19 in its suggestions to the Tunisian government regarding the constitutional reform process, the Government of Myanmar also “needs to “bring human rights home” into the domestic legal order and establish and embed a “human rights culture” in society so that rights are not alien, but familiar entitlements for its individual members. This requires human rights education for the public as well as state administration.” In particular, the Myanmar judiciary should be trained in the judicial practice and implementation of human rights law, including Myanmar’s current and future international human rights obligations. Importantly, NGOs, intergovernmental organisations and the media should be able to monitor the compliance of Myanmar’s state organs and public bodies with the new laws and commitments.
Support is on offer: People, governments and non-governmental organisations around the world are keen to see that the Myanmar democratic reform is a success story. No one is interested in seeing it collapse or getting sidetracked or shying away from its true mission. It means that support is on offer. ARTICLE 19 and many others are offering their expertise and support to the Government of Myanmar, the Media and civil society in its important journey towards strengthening human rights protection and the rule of law in the country, and establishing independent media.
At the outset I emphasised that law is the essential business of government and noted the critical part to be played by the tripartite system of law making, law enacting and law protection. The legislators, executive and judiciary fulfil critical functions without which the rule of law fails and the fabric of sustainable society falls.
To set solid foundations for sustainable society, there are important laws, which should be drafted according to international standard and enacted accordingly. Critical are those that protect and uphold the rights to freedoms of expression, assembly and information and freedom of the press. They are a stable society’s backbone and shoulder blades.
Robust legal frameworks for freedoms of expression, information and the media are critical and irrevocable human rights in their own right. They are also powerful social goods in that they enable government to fulfil its tri-partite functions, to maintain its responsibilities to the law and to uphold the best practices of good governance. The transparency provided by freedom of information, the scrutiny provided by freedom of the press and the critique provided by freedom of expression create the environment in which high quality accountability government can flourish and deepen.
In other words if law is the skeletal framework on which stands and falls the strength and sustainability of a society, then the rights to freedoms of expression, information and the press is also a government’s personal trainer! A challenge, a goal, an encouragement and a motivator: without which no government can perform to the highest standard or achieve the best possible for those who give governments its raison d’etre: the people.
 Catherine Pitt, Bridging the Human Rights and Development discourses: Is the Right to Freedom of Expression of use to Development?, dissertation, MSc in the faculty of Economics, LSE, London, 2005.
 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts 13 and 29 American Convention on Human Rights) Advisory Opinion OC-5/85, November 13, 1985, Inter-Am. Ct. H.R. (Ser. A) No 5 (1985).
 Castells v. Spain, 24 April 1992, Application No. 11798/85, para. 43.
 UN General Assembly Resolution 217A(III), adopted 10 December 1948.
 Filartiga v. Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2nd circuit).
 Article 2 of the ICCPR, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967).
 Human Rights Committee, General Comment No 34, Freedoms of Opinion and Expression (Article 19), CCPR/C/GC/34, 12 September 2011, See paras 18-19.
 See Communication No 1022/2001, Velichin v Belarus, Views adopted on 20 October 2005.
 ARTICLE 19, Tunisia Constitution Brief, March 2011, forthcoming
 Leonardus J.M. de Groot v The Netherlands, No. 578/1994, CCPR/C/54/D/578/1994 (1995).
 ARTICLE 19, Tunisia Constitution Brief, March 2011, forthcoming
 The following section is based on a report produced by ARTICLE 19 for the UPR process of March 2011.
 IMS Report, January 2012
 ARTICLE 19, Tunisia Press Law, Legal Analysis, 2011
 ARTICLE 19, Tunisia Constitution Brief, March 2012
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