Dear Daw Aung San Suu Kyi,
We are writing to you as the leader of the National League for Democracy, and as our Honorary Board Member since the 1990s, to provide recommendations to your party as it reviews the Constitution of Myanmar, so as to ensure that future amendment respects, protects and fulfils the right to freedom of expression.
ARTICLE 19 considers your party’s review process an excellent opportunity to re-examine and redress Myanmar’s constitutional safeguards for the right to freedom of expression, including media freedom and the right to access publicly held information. As you are fully aware, securing democratic transformation in Myanmar is dependent on bringing such safeguards into line with international law and the best constitutional practices worldwide.
ARTICLE 19 is ready to contribute through our Yangon representatives to the public and expert debates going forward. I hope you find the below recommendations both substantive and interesting.
ARTICLE 19 Executive Director
Provisions in the current Constitution
The Constitution of Myanmar contains two provisions relating to the right to freedom of expression. Article 354 states that every citizen shall be at liberty to express and publish their convictions and opinions freely, and Article 365 provides for freedom of artistic expression. Article 354 restricts such liberty for the purposes of protecting national security, public order, public morality, “community peace” and “tranquillity”.
The Constitution contains no safeguards for media freedom. There is no reference to media self-regulation, prohibition of censorship, establishment of public service media or an independent broadcast regulator, recognition of commercial or community media or internet freedom, guarantees for media pluralism or diversity or access to media at election times.
The Constitution also does not guarantee the right of access to public information. Neither does it ensure the supremacy of international law over domestic law and remedies in cases of violations of human rights.
The basis for ARTICLE 19’s review
ARTICLE 19 reviews legislation based on international human rights law and comparative constitutional best practice. International law on the right to freedom of expression is an established body of law that sets out minimum standards that all states should respect. It is primarily set out in the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, as well as in international customary law and regional treaties in Europe, the Americas, and Africa.
Myanmar is one of the very few states that have failed to ratify most of the international human rights treaties until now. Despite this, international customary law still applies to Myanmar, regardless of choice.
ARTICLE 19’s recommendations
1. The Constitution should recognise human rights, not liberties
The Constitution does not guarantee the rights of individuals but rather provides vague liberties. International human rights law defines peoples’ rights and the corresponding duties of states, and therefore the Constitution should introduce the language of rights.
2. The Constitution should recognise the rights of anyone, regardless of citizenship
Article 354 restricts the liberty to express and publish freely only to citizens. In most countries, constitutional rights belong to everyone, including foreigners, refugees and other stateless persons.
3. The Constitution should define freedom of expression broadly
Article 354 defines the liberty to express and publish in a limited way. The Constitution should use the broad language of international law to include the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers and form or through any media of his or her choice.
4. The Constitution should include only the restrictions permissible under international law
The allowable restrictions to expression and publication in Article 354 are far too broad. For example, “community peace” and “tranquillity” are vague grounds that would lead to censorship and should be removed and replaced with those restrictions that are legitimate under international law: respect of the rights or reputations of others, the protection of national security or of public order (ordre public), or public health or morals. Article 354 also fails to require that restrictions meet a test of proportionality and necessity. Therefore the Constitution should state that restrictions are only legitimate if they are provided by law and have been shown to be necessary in a democracy.
5. The Constitution should recognise the right to information
The representatives of several inter-governmental bodies, including the United Nations, declared in 2004 that the right to access information held by public bodies is a fundamental human right, and it now appears explicitly in most new constitutions. The Constitution should include a right of access to information held by public bodies, and a right to access information held by private bodies where this is necessary to enforce a right.
6. The Constitution should provide protection for the media and journalists
Article 354 currently makes no mention of the media or journalists. The Constitution should give explicit protection to freedom of the media, and possibly include the following:
a. Prohibition of any type or form of censorship
Censorship is so contrary to the right to freedom of expression that many constitutions prohibit it outright, including Thailand, Japan, Colombia, Germany and Russia.
b. Licensing should not apply to the print media
Imposing special registration or licensing requirements on the print media is unnecessary and easily abused, and therefore violates international law.
c. Journalists should not be licensed
Licensing journalists or creating entry requirements for them to practice the profession are not accepted under international law as contrary to the right to freedom of expression.
d. All bodies with regulatory powers over the media should have guarantees of independence
In order to protect the right to freedom of expression it is vital that the government has no control over the media. Where regulatory bodies are necessary, for example to give out broadcasting spectrum, candidate selection should be done independently of government interference, and the body should have clear rules, duties and responsibilities, as well as sufficient and stable financing.
e. Journalists should have the right to protect the confidentiality of their sources
In many countries, journalists are given a special privilege to keep their sources of information confidential unless certain stringent conditions are met. This privilege enables whistleblowers to speak to the media without fear of repercussions, which is vital to challenge corruption and scandals.
7. The Constitution should protect media pluralism
Media pluralism can be ensure by adopting laws prohibiting the concentration of media ownership, ensuring the transparency of media ownership and universal access to media and financial and regulatory measures.
8. The Constitution should provide for public service broadcasting
The Constitution should guarantee the establishment and operation of independent public service organisations. Such organisations should promote social cohesion and integrate all communities, social and age groups.
9. The Constitution should provide for media coverage of elections
The Constitution should require that regulatory frameworks covering media coverage of election campaigns respect the fundamental principle of freedom of expression and provide for fair, balanced and impartial reporting.
10. The Constitution should guarantee the right of reply
The Constitution should guarantee a right of reply which enables a quick, free correction of incorrect information published about an individual and which affects their rights.
11. The Constitution should enforce the right to freedom of expression
The Constitutional guarantee of the right to freedom of expression should be directly enforceable against state and private bodies, and should take precedence over any domestic legislation that is incompatible with it. In addition, many new constitutions explicitly incorporate rights granted in international treaties into domestic law.