ARTICLE 19 is deeply concerned about the continuing deterioration of the right to freedom of expression and information in Myanmar under the National League for Democracy (NLD) government. In the past year, government authorities have restricted access for media and human rights monitors to conflict areas, prosecuted journalists for reporting on grave human rights violations, failed to make meaningful progress on reforming laws that restrict freedom of expression, contributed to the proliferation of “hate speech” in the country, and overseen a decline in the operating environment for media and human rights defenders.
These issues will be discussed by the UN Human Rights Council (HRC), the world’s highest human rights body, when the UN Special Rapporteur on the human rights situation in Myanmar presents her annual report on 12 March 2018, following a report by the Independent International Fact Finding Mission on Myanmar. The HRC will also consider a resolution to extend the mandate of the Special Rapporteur for one year, which will set out human rights priorities for the government.
HRC Resolution 34/22 on the human rights situation in Myanmar (March 2017) urged the government to undertake numerous measures, including legislative reforms, to improve protections for freedom of expression in the country. This briefing describes how the situation for freedom of expression has deteriorated rather than improved in the last twelve months.
ARTICLE 19 urges all member and observer states of the UN Human Rights Council (HRC) to call on the government of Myanmar to prioritise immediate reforms to protect freedom of expression in the resolution to be adopted at the conclusion of the 37th Session.
Prosecution of journalists and others exercising right to freedom of expression
In the past year, government authorities—including both military and civilian officials—have initiated criminal proceedings against journalists, bloggers, activists and others for their work reporting on human rights violations and abuses, or otherwise for exercising the right to freedom of expression.
In particular, the government has targeted individuals seeking to report on events in conflict areas in Rakhine, Shan and Kachin States. In December 2017, Reuters journalists Wa Lone and Kyaw Soe Oo were arrested while investigating a massacre of Rohingya civilians in northern Rakhine State. They were subsequently charged with violating the Official Secrets Act, and face up to 14 years imprisonment if convicted. In October 2017, a court in Shan State convicted Kachin men Dumdaw Nawng Lat and Langjaw Gam Seng—a Baptist pastor and youth leader, respectively—under the Unlawful Associations Act and the Import and Export Law in relation to their role facilitating a trip by journalists to the region.
Authorities have also targeted individuals criticising the government or military in other contexts. In April 2017, researcher and former political prisoner Myo Yan Naung Thein was convicted under section 66(d) of the Telecommunications Law, which concerns online defamation, for criticising Myanmar’s commander-in-chief on Facebook. In June 2017, a military officer filed criminal defamation charges against Kachin human rights defender Dashi Naw Lawn after he distributed pamphlets accusing military personnel of committing human rights violations against the Kachin population. The same month, a human rights defender was charged under section 66(d) for livestreaming a video of a play deemed defamatory of the military. Individuals have similarly been charged for allegedly insulting NLD officials, including Aung San Suu Kyi. In December 2017, two foreign journalists were released from prison after serving a two month sentence for the unauthorized use of a drone near Parliament in Naypyidaw.
Criminal defamation proceedings in cases initiated by private citizens also continue to threaten journalists and others. Myanmar Now chief editor Swe Win was arrested in July 2017 and currently faces charges under section 66(d) of the Telecommunications Law in relation to messages posted on Facebook which were critical of ultra-nationalist monk Wirathu.
In September 2017, military authorities withdrew criminal complaints against six journalists and a number of activists facing criminal charges relating to their exercise of the right to freedom of expression. These individuals included Lawi Wang, Aye Nai and Phyae Phone Aung, journalists who had reported on a drug burning ceremony by an ethnic armed organization in Shan State, and Kyaw Min Swe and Kyaw Zwar Naing, journalists with The Voice responsible for the publication of an article satirizing a military propaganda video. Although the military avoided further damage to the media environment by dropping these cases, the filing of charges against these individuals has had a chilling effect on journalists in Myanmar.
HRC Resolution 34/22 called on the Myanmar authorities to reform section 66(d) of the Telecommunications Law and the Unlawful Associations Law, in response to concerns about their use against journalists, human rights defenders and social media users. As outlined below, the limited reforms to section 66(d) in 2017 have not curtailed abuses, and promises to reform other laws have not been fulfilled.
Recent prosecutions of journalists, human rights defenders and social media users underscore the need for the HRC to reiterate its call for the reform of laws being used to criminalize dissent and free expression and to drop charges against and release against those currently detained.
Restrictions on reporting in conflict areas
Beyond the prosecution of journalists covering active conflicts and human rights concerns, the Myanmar government has restricted reporting on these topics by enforcing blanket restrictions on access to conflict areas, most notably northern Rakhine State.
In 2017, media outlets, human rights groups and UN investigators collected irrefutable evidence that Myanmar security forces have perpetrated widespread and systematic atrocities against the Rohingya minority in northern Rakhine State, likely amounting to crimes against humanity. Most of this evidence had to be collected from Rohingya individuals who had fled to Bangladesh, as the Myanmar government continued to enforce restrictions on access to the conflict-affected areas for media and independent observers. The government’s refusal to grant access to the country to the HRC-mandated Fact-Finding Mission and the UN Special Rapporteur on the situation of human rights in Myanmar underscores the increasing absurdity of the denials and alternative-narratives being advanced by official government spokespersons.
In lieu of allowing independent reporting on the crisis, the government facilitated highly choreographed visits to Rakhine State by diplomats and journalists. Despite the government’s claims to the contrary, the movements and activities of participants taking part in these trips were highly restricted, and journalists were unable to conduct interviews in confidence. Moreover, officials clumsily attempted to fabricate evidence and introduce journalists to individuals who purported to be “eyewitnesses” who would corroborate the government’s narrative, but who were subsequently proven not to be credible.
Elsewhere in the country, restrictions on access to conflict areas was imposed through application of the Unlawful Associations Act, which was used to target individuals who have made contact with ethnic armed organizations.
ARTICLE 19 considers there has been little progress in implementing the recommendation given to the government of Myanmar in HRC Resolution 34/22 “to allow independent observers and representatives of the media access” to Rakhine State.
The HRC must reiterate its calls to ensure access for independent observers and journalists to Rakhine State, and extend this direction to cover all conflict affected regions in Myanmar.
Threats and violence towards journalists and human rights defenders
In the past year, journalists and human rights defenders have continued to face grave threats, and at times violence, because of their work. Some have also been subject to persistent surveillance or harassment by police or intelligence officers, and foreign journalists have often had difficulty renewing visas. These threats have forced some journalists and human rights defenders to flee the country or go into hiding. In December, Pulitzer-Prize winning journalist Esther Htusan left Myanmar because of persistent violent threats relating to her reporting on the Rakhine State crisis and other sensitive issues.
There has been little or no progress in investigations into several high profile murders, including prominent lawyer U Ko Ni, journalists Ko Par Gyi and Soe Moe Tun, and rights activist Naw Chit Pandaing, notwithstanding specific directions in HRC Resolution 34/22 for the government to ensure those responsible for these crimes are held accountable. More broadly, the government has failed to create an environment where individuals can exercise the right to freedom of expression without fear of retaliation.
The HRC should restate the importance of ending impunity for attacks against journalists and human rights defenders.
Stalled legislative reform
In the early months of its administration, the NLD government committed to a broad program of legislative reform touching on laws that restrict the right to freedom of expression and information. While the NLD can claim some notable legislative accomplishments, its reform agenda largely stalled in 2017.
Section 66(d) of the 2013 Telecommunications Law sets forth a vaguely defined online defamation provision that has been one of the primary legal provisions used to target journalists and others expressing critical opinions online. The NLD government has used the law to prosecute individuals for online expression much more frequently than the previous USDP government, which is responsible for passing the law. Amendments passed by Parliament in August 2017—including to reduce the maximum penalty under section 66(d) from three to two years imprisonment and to allow for release on bail—failed to address the fundamental flaws in the law. The Myanmar government should prioritize the repeal of section 66(d) in its entirety.
The Myanmar government also continues to use a variety of colonial-era laws to prosecute dissent and free expression. These include the Unlawful Associations Act, the Official Secrets Act, and Penal Code provisions concerning defamation, incitement, unlawful assemblies and “insulting religion” (i.e. blasphemy). These laws require the urgent attention of Parliament, and authorities must take immediate steps to ensure that they are not applied against those criticising the government, reporting on government misconduct or expressing minority or unpopular opinions.
The Myanmar government must also undertake a broader programme of reform of the legal and regulatory framework affecting freedom of expression and association. The current News Media Law requires amendment to bolster the impartiality and credibility of the Myanmar Press Council, including by establishing an independent appointment process, improving funding transparency, and guaranteeing diverse representation. The Broadcasting Law is also in need of reform to ensure fair treatment of non-state media, increase transparency, and provide adequate support to community media.
ARTICLE 19 calls on the HRC to be more specific and comprehensive in the legal reforms it urges the Myanmar government to prioritise, and to encourage the government to work with civil society and international partners, including OHCHR and the Special Rapporteur, on a concrete, participatory, transparent and time-bound legislative process in this regard.
Restrictions on the right to protest
Myanmar’s legislative framework places undue restrictions on the right to protest, and Myanmar authorities have frequently wielded the law and the disproportionate or unlawful use of force against protesters seeking to exercise that right.
Sections 141-149 of the Penal Code criminalize unlawful assemblies. These provisions are, in parts, both overly broad and overly vague, granting great discretion to authorities on whom to charge and for what actions. When passed in 2012, the Peaceful Assembly and Peaceful Procession Act marked a positive step towards protecting the rights of protesters, but nonetheless contains vague provisions that can be used arbitrarily to restrict freedom of expression and criminalize peaceful protest in violation of international human rights standards.
In the past year, government forces have on several occasions resorted to the use of force to disperse protests. In March 2017, police fired rubber bullets at a group of individuals protesting the impacts of the Letpadaung copper mine in Sagaing Division, injuring at least 10. In January 2018, police opened fire on protesters in Mrauk-U, Rakhine State, killing at least seven individuals. The government later formed an investigation team to look into the incident, but has yet to release any findings.
Authorities have also used legal threats and administrative action to violate the right to protest. In November 2017, the government announced an indefinite and blanket ban on all public demonstrations in 11 townships in Yangon. The following month, eleven students from Yadanabon University in Mandalay were expelled after organizing a demonstration to call for an increase in the national education budget. In January 2018, five ethnic Karenni men were convicted of violating the Peaceful Assembly and Peaceful Procession Act and sentenced to 20 days imprisonment after organizing a protest in Loikaw to call for accountability for Myanmar Army soldiers who executed unarmed Karenni soldiers. A few weeks later, three individuals among hundreds who marched in solidarity with the imprisoned men were also charged under the Peaceful Assembly and Peaceful Protection Act. However, the charges were later dismissed by the Loikaw Township court.
The HRC must more comprehensively address violations of the right to protest in Myanmar, calling for investigations into possible unnecessary and disproportionate use of force against protesters, and for immediate reforms to the Penal Code and Peaceful Assembly and Peaceful Procession Act. Those convicted for the exercise of their rights to freedom of expression or peaceful assembly must be released and have their convictions quashed without delay.
Government responsibility for proliferation of “hate speech”
During its 34th session, the Human Rights Council called on the Myanmar government to take measures to address discrimination and prejudice, to speak out against advocacy of hatred, and to adopt measures criminalizing incitement to violence, while upholding freedom of expression. In making these calls, the Human Rights Council urged the Myanmar government to consider Human Rights Council Resolution 16/18 and the Rabat Plan of Action. These calls were largely reiterated in HRC resolution S-27/1, adopted during the Special Session on Myanmar in December 2017.
HRC Resolution 16/18 sets forth an agenda of proactive measures that States must take to combat intolerance, discrimination and violence on the basis of religion or belief. These measures include the promotion of inter-religious dialogue, the development of conflict prevention and mediation mechanisms, the training of government officials, the criminalization of incitement to imminent violence based on religion or belief, the establishment of awareness-raising initiatives, and the proactive condemnation of intolerance. The Rabat Plan of Action provides practical legal and policy guidance to States on implementing Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), which obliges States Parties to the ICCPR to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to hostility, discrimination or violence.”
To date, Myanmar authorities have failed to effectively implement the action points set forth in HRC Resolution 16/18 and the Rabat Plan of Action, and have instead taken steps directly contravening the guidance of the HRC and the Rabat Plan of Action.
The response of successive Myanmar governments to the proliferation of “hate speech”, discrimination and incitement to violence in Myanmar has been halting at best. While senior officials in both the USDP and NLD-led governments have frequently made broad overtures toward tolerance and harmony, they have tended to direct their condemnation to only the most extreme and outspoken mouthpieces of the nationalist movement. Senior officials, including Aung San Suu Kyi, have consistently failed to address broader discriminatory sentiment among the general population and to speak out against hatred or more forcefully advocate for the rights of the Rohingya and the country’s Muslim population. Moreover, the government’s incessant denial of the veracity of reports of grave human rights violations perpetrated by state security forces in Rakhine State severely undermines any potential progress in combating hatred, discrimination and violence directed against the Rohingya, which may amount to crimes against humanity or genocide. The NLD government’s approach of censoring the most extreme viewpoints and disbanding the most radical groups, while failing to themselves denounce pervasive discrimination and human rights violations, runs contrary to the emphasis in HRC Resolution 16/18 and the Rabat Plan of Action on dialogue over censorship. Going forward, moral leadership by government officials, as well as religious leaders, in shaping a narrative that promotes inclusivity, pluralism and respect for diversity is necessary.
Beyond merely failing to condemn advocacy of hatred by others, government authorities have, at times, actively participated in campaigns of deliberate misinformation amounting to “hate speech” directed at the Rohingya, creating a climate in which the public may be made more receptive to calls of incitement to violence. In the past two years, high ranking military and civilian authorities—including Commander-in-Chief Min Aung Hlaing and officials in Aung San Suu Kyi’s office—have made statements denying the existence of the Rohingya as a distinct ethnic group. In December 2016, the Information Committee in Aung San Suu Kyi’s office issued a press release dismissing reports of sexual violence as “rumours” under a banner stating “Fake Rape”. The same office has repeatedly dismissed reports of human rights violations as “fake news”, often posting photos of weapons purportedly captured from Rohingya militants and the bodies of alleged victims of their attacks. Some of the photographs shared by the Information Committee in order to advance the narrative that Rohingya villagers were burning their own homes have been demonstrated to have been staged.
ARTICLE 19 has reviewed three successive versions of a draft Bill for Interfaith Harmonious Coexistence drafted by the Ministry of Culture and Religious Affairs, a version of which is likely to be considered by Parliament sometime this year. The draft Bill remains dangerous to the rights to freedom of opinion and expression, freedom of religion or belief, and freedom from discrimination. It adopts a very broad definition of “hate speech”, and relies entirely upon the criminal law and coercive measures in its response; this approach will only increase legal uncertainty and close space for peaceful inter-communal dialogue. If enacted, the draft Bill would add to the numerous tools the government frequently uses to suppress the expression of critical views and minority voices.
Rather than passing this deeply flawed bill, Myanmar should undertake more comprehensive reforms to its legislative and policy framework to effectively combat discrimination and “hate speech” in the country in compliance with the rights to freedom of expression, to freedom of religion or belief, and to equality. In particular, the 1982 Citizenship Act, which erected insurmountable barriers to citizenship for many Rohingya, should be amended or repealed. Moreover, article 295(a) of the Penal Code, which provides for up to two years of imprisonment for “outraging religious feelings,” has frequently been used against religious minorities and individuals speaking out against extremism, and should be repealed.
Both the NLD and USDP government have organized various interfaith gatherings ostensibly aimed at diffusing tensions between religious groups in Myanmar. These gatherings have been inclusive of leaders and members of the Buddhist, Muslim, Christian and Hindu faiths, and have been presented as positive steps towards promoting understanding between different faith communities. However, interfaith activities organized by the central government have tended to exclude dialogue on the plight of the Rohingya and the situation in Rakhine State. Moreover, some recent events appear to have been designed specifically to demonstrate support for the NLD-led government in the face of international condemnation of the government’s handling of the crisis in Rakhine State. In this way, government-sponsored interfaith initiatives could potentially promote religious tolerance in general, while hardening opinions against the Rohingya.
The HRC must redouble its calls on the Myanmar government to address “hate speech”, including incitement of hostility, discrimination or violence, in line with resolutions 16/18 and the Rabat Plan of Action.
 Refugees International, “Suffering in Shadows: Aid restrictions and reductions endanger displaced persons in Northern Myanmar”, December 2017, http://bit.ly/2sJaH1N, p. 15; David Scott Mathieson, “ Gagging the messengers of Myanmar’s wars”, 6 July 2017, Asia Times, http://bit.ly/2tPFEQW.
 See, for example, Amnesty International, “Rakhine journalist receiving death threats: Nay Min Aung (known as Min Min)”, 24 April 2017, http://bit.ly/2CsxNJD; Committee to Protect Journalists, “Journalist abducted, seriously injured in Myanmar”, 30 May 2017, http://bit.ly/2CvVyAw; Toe Wai Aung, “Journalist in critical condition after attack in Rakhine’s Sittwe”, Myanmar Times, 21 December 2017, http://bit.ly/2Gknp8X.
 Unlawful Associations Act of 1908; Official Secrets Act of 1923; Penal Code sections 141-149 (unlawful assemblies), 295(a) (insulting religion), 499-500 (defamation) and 505(b) (incitement).
 Zue Zue, “5 Karenni Men Sentenced Under Peaceful Assembly Law”, Irrawaddy, 15 January 2018, http://bit.ly/2DfCCue. The sentence imposed by the court was a fine or imprisonment, but the individuals chose to serve the prison term.
 Human Rights Council, “Situation of human rights of Rohingya Muslims and other minorities in Myanmar”, UN Doc. A/HRC/RES/S-27/1, adopted on 5 December 2017, para 18-19.
 Human Rights Council, “Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief”, UN Doc. A/HRC/RES/16/18, 12 April 2011. See also HRC resolution 34/32, of the same title, of March 2017, and GA resolution 72/176, also of the same time, of December 2017.
 Rabat Plan of action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility of violence, UN Doc. A/HRC/22/17/Add.4, 5 October 2012.
 See, for example, “We cannot let ethnic or religious differences become an excuse to revert to authoritarianism,” New Light of Myanmar, 17 July 2013.
 “‘Proof’ of Rohingya-set fires in Myanmar fails inspection,” Associated Press, 12 September 2017.
 See, for example, “Interfaith Dialogue for Peace, Harmony and Security held,” Global New Light of Myanmar, 6 August 2017.