ARTICLE 19’s analysis of the third draft of Myanmar’s Interfaith Harmonious Coexistence Law finds that, notwithstanding some positive changes to the draft law, it remains fundamentally flawed from a freedom of expression perspective. Against the draft law’s own stated objectives, its reliance on broad censorship powers is profoundly misguided, and will not advance much-needed efforts to alleviate or prevent conflict. A new approach is needed to build respect for pluralism and diversity in Myanmar, and open space for dialogue that genuinely has the potential to prevent violence and discrimination.
In August 2017, the independent Rakhine Commission, appointed by State Counsellor Aung San Suu Kyi and headed by former UN Secretary General Kofi Annan, published its final report on the situation in Rakhine State, setting out recommendations to improve the situation of Muslim and Buddhist communities.
Among the Rakhine Commission’s recommendations, it urged the Myanmar government to actively combat “hate speech”, including through a “robust legal framework”. However, in addition to legislative action it called for “fostering tolerance through cultural mediums, civic education, and awareness-raising activities to dispel misinformation about religion”.
The Commission highlighted the need to address inter-communal tensions and discrimination across Myanmar in order to prevent the worsening of the situation in Rakhine, a warning given during a week where at least 27,000 Rohingya people have fled across the border to Bangladesh from Rakhine State, following the Myanmar Army’s operations responding to the armed group Arakan Rohingya Salvation Army, according to the UN Special Rapporteur on the human rights situation in Myanmar. The UN High Commissioner for Human Rights has characterised the current crisis as wholly preventable.
Human rights violations against the Rohingya population, as well against Rakhine and Hindu groups, including since October 2016, have reflected increasing anti-Muslim public discourse in the country. UN mechanisms have described attacks against the civilian population as amounting to possible crimes against humanity, and the UN High Commissioner for Human Rights has condemned the role of inflammatory rhetoric from senior public officials in fanning the flames.
The UN Human Rights Council (HRC) has called upon the Myanmar government to cooperate with an international Fact-Finding Mission, and institute a number of reforms in line with international human rights law. This includes to improve the situation for freedom of expression and media freedom in the country, and to address “hate speech” that amounts to incitement to violence in line with the guidance given in HRC Resolution 16/18 and the Rabat Plan of Action. To date, the international Fact-Finding Mission has been refused access to conflict-affected areas, along with independent journalists and human rights observers.
While the Ministry of Religious Affairs and Culture claims that the draft law will secure protections from “hate speech”, ARTICLE 19’s analysis reveals that it will not. Instead, it is only likely to undermine protections for human rights further. Definitions of “hate speech” in the draft Law remain overbroad and open to political abuse, including against the minority groups that the law should protect. The groups protected in the draft law are poorly defined, with concepts of “religion” and “ethnicity” not expressly extending to non-citizens, and the exclusion of other protected characteristics that international human rights law requires the inclusion of.
The draft law’s proposed creation of a new “Central Committee” with “Boards of Investigation” to enforce newly created censorship powers is deeply concerning. Rather than being independent of political influence, these executive bodies will be constituted by senior politicians and provide no access to, or mechanisms for, redress to those groups most impacted by “hate speech” in Myanmar. No oversight or accountability mechanisms will exist to ensure that these bodies act in line with Myanmar’s international human rights obligations, including on freedom of expression and equality.
ARTICLE 19’s analysis makes clear that the draft law does not comply with Myanmar’s international human rights obligations, and goes against the recommendations of the Rakhine Commission and the UN HRC.
An entirely new approach is needed.
It is essential that accountability for individuals who engage in incitement to genocide or incitement to crimes against humanity, as well as advocacy of hatred constituting incitement to violence more broadly, is secured. This requires specific criminal laws that, contrary to those contained in the draft law, mirror the requirements of international criminal law and Articles 19(3) and 20(2) of the International Covenant on Civil and Political Rights. These must be enforced by bodies independent of political influence, ensuring that they are not misused by the government to target dissent and criticism.
Criminal measures to restrict the most severe forms of “hate speech” (incitement to violence, and incitement to crimes against humanity or genocide) should be considered an exceptional and last resort measure. Priority should be given to positive and preventative policy approaches that seek to secure equality in law and tackle the root causes of discrimination and violence, in line with HRC Resolution 16/18 and the Rabat Plan of Action.
The Myanmar government must undertake measures to build mutual understanding and dialogue between groups. This also requires prominent individuals to speak out against hatred and violence. Ultimately, the government must support the opening of space for dialogue and dissent, including by repealing the myriad laws that enable discrimination and undermine freedom of expression. Recognising the role of an independent and pluralistic media sector in this regard, and ensuring their access to conflict affected regions so that they may freely inform the public, is also crucial.
In summary, ARTICLE 19’s analysis recommends that:
- The draft law should be withdrawn in its entirety, in favour of a new approach combining positive policy measures to promote and protect the rights to freedom of expression and equality, including through reforms to the Penal Code and the enactment of a comprehensive legal framework for the right to equality;
- The advocacy of discriminatory hatred that constitutes incitement to hostility, discrimination or violence should be prohibited in line with Articles 19(3) and 20(2) of the International Covenant on Civil and Political Rights (ICCPR), establishing a high threshold for limitations on free expression as set out in the Rabat Plan of Action, as well as prohibitions on direct and public incitement to genocide and incitement to crimes against humanity;
- The protective scope of any measures to address “hate speech” should encompass all protected characteristics recognised under international human rights law, and not be limited to ethnicity and religion;
- The Myanmar government should refrain from the creation of politicised administrative bodies for the purpose of identifying, investigating or initiating prosecutions for “hate speech” cases;
- The Myanmar government must sign and ratify the ICCPR and all other major international human rights treaties without delay.
 Update: Since the publication of the Commission’s report, the number of Rohingya fleeing military operations in Rakhine State has drastically increased. As of 14 September 2017, nearly 400,000 Rohingya had fled to Bangladesh to escape the violence.