Myanmar: Letter to parliament on constitutional reform

Dear Committee Members,

We, the Coalition for Freedom of Expression, together with ARTICLE 19, are writing to you to provide recommendations for the amendment of the Constitution of Myanmar so as to ensure that it includes the obligation to respect, protect and fulfil the right to freedom of expression in accordance with international law.

The Coalition for Freedom of Expression was established in December 2013 at a meeting in Chaung Tha welcomed by Ayeyawaddy Regional Parliament Deputy Speaker, Dr Htein Win. It brings together academics, human rights defenders, journalists, editors and media workers, lawyers, political activists and representatives from across the country. Our purpose is to together defend freedom of expression and information by making clear recommendations for change.

ARTICLE 19 was established in 1987 as a human rights organisation defending the right to freedom of expression worldwide. It brings experience from supporting dozens of countries emerging as new democracies.

The right to freedom of expression in the current Constitution

The Constitution of Myanmar has two weak articles relating to the right to freedom of expression: 354 and 365. Unlike most recent constitutions, it has no articles safeguarding media freedom or access to public information, and no article on the supremacy of international law.

The right to freedom of expression under international law

International law is created by agreements between many countries and gives obligations to individual countries such as Myanmar. While Myanmar has not yet agreed to join the 90% of countries who have signed one of the most important pieces of international law, the International Covenant on Civil and Political Rights (ICCPR), Myanmar must still protect the right to freedom of expression under international customary law contained in Article 19 of the Universal Declaration of Human Rights (UDHR).

This international law requires Myanmar to protect the right to freedom of expression in its Constitution according to international standards, like all other countries.

Freedom of expression is fundamental to democracy. Without proper protection of the right to freedom of expression, democracy cannot exist. Therefore it is of the utmost importance that every effort is made to ensure that the Constitution complies with international standards.

The Coalition’s recommendations

1. Article 354 should be changed to define freedom of expression according to international law. It should say that:

  • all people, not just citizens, have the right

  • to seek, receive and impart

  • information and ideas of all kinds

  • regardless of geographic, political or cultural frontiers

  • through any media, such as for example spoken word, written article, art, electronic communication.

2. According to international law, freedom of expression can be limited in specific circumstances according to a three part-test. Article 354 should therefore be changed to remove reference to “community peace” and “tranquillity” and instead include this three-part test which says that:

  • Any limitation must be written clearly in law and be easily understood by the people

  • Any limitation must pursue one of these legitimate aims: respect for the rights or reputations of others, protection of national security or of public order, protection of public health or morals

  • Any limitation must be necessary in a democratic society in order to directly and immediately respond to an urgent social need. It must also be proportionate and be the least restrictive method.

3. An article guaranteeing the right of access to information should be added to the Constitution.

4. An article guaranteeing the right to media freedom should be added to the Constitution, including:

  • Prohibition of censorship

  • Prohibition of licensing of the media with the exception of the independent regulation of broadcasting frequencies

  • Prohibition of licensing of journalists

  • Guarantee of the independence of a broadcasting regulator, with the requirement to protect media pluralism

  • Guarantee of the right of journalists to protect their confidential sources of information

5. An article recognising the direct applicability and superior nature of international human rights law should be added to the Constitution.

We will be spreading this same message publicly and inviting others to join us to defend freedom of expression and information. The Coalition for Freedom of Expression and ARTICLE 19 are ready to contribute should the Committee require further information going forward. We look forward to hearing from you.

Yours faithfully,

The Coalition for Freedom of Expression