The Myanmar government should avoid criminalising expression as a primary means of combatting hate speech, ARTICLE 19 said in a policy briefing published today. Previous drafts of a proposed anti-hate speech law contain vague and overly broad language that would infringe on the right to freedom of expression. Instead of advancing legislation along these lines, the Myanmar government should adopt a national action plan incorporating a wide range of policy measures consistent with international standards and best practices.
“Unchecked intolerance and discrimination have led Myanmar to a dark and dangerous place. Good faith efforts to address these challenges should be welcomed,” said Matthew Bugher, ARTICLE 19’s Head of Asia Programme. “However, an approach that rests on censorship and criminalisation is likely to do more harm than good.”
In a circular published on 7 January, the Ministry of Foreign Affairs stated that a draft bill concerning ‘hate speech’ would be prioritised for ‘early adoption’ by Parliament. Stakeholders with knowledge of the legislative process have suggested to ARTICLE 19 that the bill may be considered before the 2020 general elections, widely expected to be held in November 2020.
The Ministry of Religious Affairs and Culture previously led efforts to develop an anti-‘hate speech’ law. In 2016 and 2017, the Ministry consulted with civil society after sharing drafts under the titles ‘Interfaith Harmonious Coexistence Law’ and ‘Protection against and Prevention of Hate Speech Law’. Subsequently, responsibility for developing the legislation was transferred to an inter-ministerial committee chaired by the Ministry of Home Affairs. Civil society and human rights organisations have not been privy to recent deliberations by the inter-ministerial committee. However, ARTICLE 19 has reviewed a copy of a mid-2019 version of the bill developed by the committee and titled ‘Protection against and Prevention of Hatred Bill’.
The various draft bills produced by the Ministry of Religious Affairs and Culture and the inter-ministerial committee all rely heavily on censorship and criminal penalties as a means of combatting ‘hate speech’. Moreover, the term ‘hate speech’—or in the case of the most recent version, ‘hatred’—has been defined in a very broad manner, encompassing speech that may cause ‘conflict’ or ‘dissension’ among religious people and groups. As described in the briefing, this approach is incompatible with international human rights law.
Overly broad restrictions on speech can stifle the type of dialogue that is needed to promote tolerance. Moreover, laws with vague or expansive terms open the door for arbitrary or abusive application by government officials and are often used to silence the voices of minority groups or those with controversial opinions. In the rare circumstances when international human rights law permits restrictions on speech, criminal penalties should be used as a measure of last resort.
Instead of pushing forward with anti-‘hate speech’ legislation, Myanmar authorities should embrace a new approach relying primarily on positive policy measures to address ‘hate speech’ and intolerance. Meanwhile, the government should take decisive action to promote and protect the rights to freedom of expression and equality. To this end, ARTICLE 19 calls on the Myanmar government to enact a national action plan to counter ‘hate speech’ and intolerance in line with Human Rights Council Resolution 16/18, the Rabat Plan of Action, and the Camden Principles on Freedom of Expression and Equality.
Positive government-led initiatives to combat hate speech could include facilitating inclusive interfaith dialogue, training government officials on effective strategies to promote tolerance, encouraging local leaders to discuss causes of discrimination within their communities, establishing education and awareness-raising programmes, and promoting an independent, diverse and pluralistic media.
Government officials should further model tolerance themselves, denouncing hatred and intolerance whenever it is manifested and refraining from contributing to discriminatory or hateful rhetoric.
The Myanmar government should focus its legislative efforts to address intolerance and societal tensions on passing comprehensive anti-discrimination legislation. To the extent that criminal law provisions are necessary to address incitement to violence, discrimination, genocide or other violations of international criminal law, they should comply with international human rights law. Narrowly tailored amendments to the Penal Code offer the best path to addressing speech that constitutes incitement and warrants criminalisation.
“Government efforts to attach criminal penalties to speech need to be closely scrutinised. The Myanmar government’s track record of stifling dissent and silencing minority opinions suggests an even greater need for caution,” said Matthew Bugher. “As we near the 2020 elections, Myanmar’s leaders have cause to worry about hate speech and violence. Unfortunately, the government has repeatedly failed to address hate speech in a manner that is consistent with international standards. Instead, scores of government critics have been thrown in jail on bogus charges of incitement, defamation and sedition.”