Freedom of expression as the constitutional right in Myanmar

Article 10 (2) of the European Convention on Human Rights 1950 also prescribed that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject[r]

FREEDOM OF EXPRESSION

AS THE CONSTITUTIONAL RIGHT IN MYANMAR

Dr Hnin Nwe Htwe

Department of Law, University of Yangon

Abstract

Freedom of expression right is an individual right that are recognized under many international

conventions and regional conventions This right is recognized by the International Human Rights

Declaration 1948 as a common standard for all peoples and all nations The Freedom of expression

right is also mentioned in the constitutions of every country as a fundamental right of all citizens

In Myanmar, three constitutions were enacted Myanmar first constitution was enacted in 1947,

the second constitution was enacted in 1974 and the present constitution as the third constitution

was enacted in 2008 Freedom of expression right recognized as fundamental right of the citizens

by all three constitutions Section 17 of 1947 Constitution of the Socialist Republic of the Union of

Myanmar and Section 157 of 1974 Constitution of the Myanmar assured the freedom of expression

right as fundamental right And also Section 354 of the Constitution of the Republic of the Union

of Myanmar 2008 mentions that “every citizen shall be at liberty in the exercise of the freedom

of expression right, if not contrary to the laws, enacted for union security, prevalence of law and

order, community peace and tranquillity or public order and morality” But the effective enjoyment

of adequate protection for freedom of expression right as a constitutional right is still challenging in

Myanmar Although freedom of expression right is a fundamental constitutional right, this right can

be limited by enacted law under the Constitution of the Republic of the Union of Myanmar 2008

Keywords: Freedom of expression, constitutional right, Myanmar

Introduction

All mankind have the freedom of expression right Free communication of ideas and opinions

is mentioned in French Declaration of the Rights of Man and of the Citizen since 1789 This right

is recognized by the International Human Rights Declaration 1948 as a common standard for all peoples and all nations Freedom of expression right is a core human right which is recognized under international law and by virtually every constitutional bill of rights in the world The freedom of expression right is also the right guaranteed by the international human rights instruments

Everyone including individual and media men has the freedom of expression right without any discrimination It is fundamental feature of democracy society Freedom of expression right can support good governance and can lead to the democracy movement Freedom of expression right

directly connects with the citizens and the government Freedom of press is also a vital component

of freedom of expression right The freedom of expression right is an essential key to open the other human rights But the freedom of expression right is not limitless In order to protect national security and public interest, the limitation can be made And in the state of emergency, states can suspend the freedom of expression if necessary

International Protection of the Right to Freedom of Expression

The right to freedom of expression is recognized as one of the most fundamental right under many international human rights instruments Article 19 of the UDHR 1948 guarantees the right to freedom of expression in the following terms:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”1

Although Universal Declaration on Human Rights is not legally binding on States, the International Covenant on Civil and Political Rights (ICCPR) was created by the United Nations General Assembly in 1966

In Article 19 (1) and (2) of the International Covenant on Civil and Political Rights (ICCPR) guaranteed as follows:

“Everyone shall have the right to hold opinions without interference and the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”2

Although the International Covenant on Civil and Political Rights (ICCPR) can ensure the freedom of expression right, it will be forced over the member countries and Myanmar is not the member of International Covenant on Civil and Political Rights (ICCPR)

International courts and other authoritative bodies have repeatedly stressed the fundamental significance of freedom of expression as a human right For example, the UN Human Rights Committee has stated:

“The right to freedom of expression is of paramount importance in any democratic society.”3

In 2011, the UN Human Rights Committee adopted General Comment 34 on States parties’ obligations under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) The General Comment provides guidance for the freedoms of opinion and expression right

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

1965 expresses the right to freedom of expression as civil rights under Article 5(d) (viii) the right to freedom

of opinion and expression.4 The Convention on the Rights of the Child (CRC) 1989 protects the freedom

1 Universal Declaration on Human Rights 1948, Article 19.

2 International Covenant on Civil and Political Rights 1966, Article 19 (1) and (2).

3 International Media Support, Analysis of the Guarantee of Freedom of Expression in the 2008 Constitution of the Republic of the Union of Myanmar (White Paper, 2012) 2.

4 International Convention on the Elimination of All Forms of Racial Discrimination 1965, Article 5(d) (viii).

of expression of children under Article 13 (1) “The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless

of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice”.1 The International Convention on the Protection of All Migrant Workers and Members of their Families (ICMW) 1990 protects the freedom of expression under Article 13 (2) as, “Migrant workers and members of their families shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing

or in print, in the form of art or through any other media of their choice”.2

The right to freedom of expression is recognized by many regional organizations under their regional Charters or regional Conventions

In the Charter of Fundamental Human Rights of the European Union 2000, Article 11 expresses that with regard to freedom of expression and information:

1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers

2 The freedom and pluralism of the media shall be respected.3

For the Commonwealth Countries, Article 11 of Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States 1995 also states that;

1 Everyone shall have the right to freedom of expression This right shall include the right to hold opinions and to receive and impart information and ideas by any legal means without interference by

a public authority and regardless of frontiers.4

In ASEAN, Article 23 of the ASEAN Human Rights Declaration 2012 defines that every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice.5 The ASEAN Charter 2008 provides that “to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the Member States of ASEAN” as one of the purposes of ASEAN But there is not any Convention that can protect the freedom of expression right Although the ASEAN human right Declaration 2012 recoginzed the freedom of expression right, it will not legally force all ASEAN member countries due to fundamental principles of ASEAN charter including non-interference to internal affairs of the member states and respect for sovereignty right

Article 32 (1) of the Arab Charter of Human Rights 2004 prescribes that “the present Charter guarantees the right to information and to freedom of opinion and expression, as well as the right to seek, receive and impart information and ideas through any medium, regardless of geographical boundaries.”6

1 International Convention on the Rights of the Child 1989, Article 13 (1).

2 International Convention on the Protection of All Migrant Workers and Members of their Families 1990, Article 13 (2).

3 Charter of Fundamental Human Rights of the European Union 2000, Article 11.

4 Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States 1995, Article 11.

5 ASEAN Human Rights Declaration 2012, Article 23.

6 Arab Charter of Human Rights 2004, Article 32 (1)

Article 10 of the European Convention on Human Rights 1950 provides that;

“Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broad- casting, television or cinema enterprises.” 1

Article 9 African Charter on Human and Peoples Rights 1981 defines as follows:

“1 Every individual shall have the right to receive information

2 Every individual shall have the right to express and disseminate his opinions within the law.” 2

The right to the freedom of expression is also provided in the Declaration of Principles on Freedom of Expression (Organization of American States) and the Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples’ Rights, 32nd Session,

17 - 23 October, 2002

Article IV of the American Declaration of the Rights and Duties of Man 1948 defines the right

to freedom of investigation, opinion, expression and dissemination as “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.”3 Article 13(1) of American Convention on Human Rights 1969 defines Freedom of Thought and Expression as follows:

“Everyone has the right to freedom of thought and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.”4

As a global standard, the freedom of press and freedom of expression rights are protected under the Human Rights Declaration, International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights

of the Child, the International Convention on the Protection of All Migrant Workers and Members

of their Families And also these rights are guaranteed as a regional standard in Europe, African, Arab, ASIA, ASEAN, Commonwealth Countries and America But if compare with the number of the international declaration, convention and charter, the assurance on the protection of freedom of expression right is weak Because freedom of expression right mostly depends on national policies and laws International law can recognise the duties of state and then the states need to assure their duties under their Constitutions and their national laws

Limitation on Freedom of Expression Right

Although freedom of expression right is a fundamental human right, it is recognized under international law that it is not an absolute right and that it may be restricted in certain situations Both Article 19 (3) of the ICCPR and Article 10 (2) of the ECHR lay out a number of purposes for which freedom of expression may be limited

1 European Convention on Human Rights 1950, Article 10.

2 African Charter on Human and Peoples Rights 1981, Article 9.

3 American Declaration of the Rights and Duties of Man 1948, Article IV.

4 American Convention on Human Rights 1969, Article 13(1).

The exercise of the rights provided for in paragraph 2 of Article 19 carries with it special duties and responsibilities It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health

or morals.1

Article 10 (2) of the European Convention on Human Rights 1950 also prescribed that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in

a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”2

American Convention on Human Rights 1978, Article 13(2) says that “the exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary

to ensure:

(a) respect for the rights or reputations of others; or

(b) the protection of national security, public order, or public health or morals.”3

Article 11 (2) of Convention on Human Rights and Fundamental Freedoms of the Commonwealth

of Independent States 1995 defines as “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions and restrictions as are prescribed

by law and are necessary in a democratic society, in the interests of national security, public safety or public order for the protection of the rights and freedoms of others.”4

Article 32 (2) of the Arab Charter of Human Rights 1994 prescribes that “such rights and freedoms shall be exercised in conformity with the fundamental values of society and shall be subject only to such limitations as are required to ensure respect for the rights or reputation of others or the protection of national security, public order and public health or morals.”5

It may be presumed that by adhering to the provision of these conventions, States would be able

to ensure that when exercising their right to impose limitations on freedom of expression, they do not

in any way violate the freedom of expression rights of others

And General Comment No.34 of Human Rights Committee expressly states the application of limitation for freedom of expression right Para 24 of General Comment No.34 states that;

1 International Covenant on Civil and Political Rights 1966, Article 19.

2 European Convention on Human Rights 1950, Article 10 (2).

3 American Convention on Human Rights 1978, Article 13(2).

4 Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States 1995, Article 11 (2).

5 Arab Charter of Human Rights 2004, Article 32 (2).

“Restrictions must be provided by law Law may include laws of parliamentary privilege and laws of contempt of court”

Para 29 General Comment No.34 provides that

“The second legitimate ground is that of protection of national security or of public order (ordre

public), or of public health or morals.”

And Para 33 General Comment No.34 mentions that

“Restrictions must be “necessary” for a legitimate purpose Thus, for instance, a prohibition

on commercial advertising in one language, with a view to protecting the language of a particular community, violates the test of necessity if the protection could be achieved in other ways that do not restrict freedom of expression.”1

Therefore, under International law, freedom of expression right is not exclusive right This right can be limited But the limitations must be in accordance with international standards The intentions

of limitation have to be the protection for national security, economic interests, public interests and rights and reputation of others The situations of freedom of expression right totally rely upon limitation systems of each state

Freedom of Expression Right in Myanmar

Almost all countries guarantee the freedom of expression rights in their constitutions as the fundamental rights, but people can’t enjoy fully this right Some countries give as an exclusive right, but some give with limitations Some countries just express in their constitution and people enjoy nothing

In Myanmar, freedom of expression right also recognized as the fundamental citizens’ right under the Constitution

In Chapter VIII of the Constitution of the Republic of the Union of Myanmar 2008, as Citizen, Fundamental Rights and Duties of the Citizens, Section 354 of the Constitution of the Republic of the Union of Myanmar 2008 provides that

“Every citizen shall be at liberty in the exercise of the following rights, if not contrary to the laws, enacted for union security, prevalence of law and order, community peace and tranquility or public order and morality:

to express and publish freely their convictions and opinions; …”2

And this right also recognized the previous two constitutions

In CHAPTER II of the Constitution of the Union of Myanmar 1947, as “Fundamental Rights”, Article 17 mentions that

“There shall be liberty for the exercise of the following rights subject to law, public order and

morality: -

1 Human Right Committee, General Comment No.34 (102 nd Session 2011)

2 Constitution of the Republic of the Union of Myanmar 2008, Section 354.

i The right of the citizens to express freely their convictions and opinions.”1

In chapter xii of the Constitution of the Socialist Republic of the Union of Myanmar 1974, as fundamental rights and duties of citizens, Article 157 describes that

“Every citizen shall have freedom of speech, expression and publication to the extent that the enjoyment of such freedom is not contrary to the interests of the working people and of socialism.”2

But this freedom of expression right is not the exclusive right and there is a limitation under the constitution According to the Constitution of the Republic of the Union of Myanmar 2008, freedom

of expression right limited under enacted laws for union security, prevalence of law and order, community peace and tranquility or public order and morality

Freedom of expression right also expresses under some enacted laws

Under Law Protecting the Privacy and Security of Citizens 2017, Section 3 recognized that;

“Every citizen has the right to enjoy the protection of his/her privacy and security in full, as set out in the Constitution of the Republic of the Union of Myanmar.’

And Section 29 (c) Law Protecting the Privacy and Security of Citizens 2017 defines the meaning

of “privacy” as the right to freedom of movement, freedom of residence and freedom of speech of a citizen in accordance with law.3

And Section 4 of the News Media Law 2014 provides that;

“The news media men:

(a) have the right to criticize, point out, advise and write freely on the performances of the legislative, executive and judiciary in accord with the Constitution;

(b) have the right to inquire, reveal and write, and broadcast the information which every citizen has the right to know and opinions, in conformity with the ethics and terms and conditions;

(c) have the right to reveal and write on the matters relating to loss of the right of a citizen;

(d) have the right to obtain information, to acquire accommodation and to access in the Government office, department, organizations in accord with the terms and conditions stipulated by the relevant department and organization.”4

So this law also recognized as freedom of expression right as media right

In the purposes of the Printing and Publishing Law 2014 mentions to be able to exercise freedom

of expression right systemically according to the relevant laws in doing printing and publishing But there is no any provision that can assure the freedom of expression right

1 Constitution of the Union of Myanmar 1947, Article 17.

2 Constitution of the Union of Myanmar 1974, Article 157.

3 Law Protecting the Privacy and Security of Citizens 2017, Section 29 (c).

4 News Media Law 2014, Section 4.

Although all above laws mentioned freedom of expression right, they didn’t provide specific provision that can be certain the freedom of expression right And they mentioned again the provision

of 2008 Constitution

And if compare, laws that can limit the freedom of expression right are too much more than the laws that can protect freedom of expression right There are many existing laws that can limit the freedom of expression right, including individual freedom of expression and media freedom of

expression, such as the Penal Code;

“S-124 A Whoever by words, either spoken or written, or by signs, or by visible representation,

or otherwise, bring to attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards [the Government established by law for the Union or for the constituent units thereof,] shall be punished with transportation for life or an shorter term, to which fine may be added,

or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

“S-294 Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, ballad or words in or near any public place, shall

be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”

“S-295A Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [persons dent in the Union] by words, either spoken or written, or by visible representations, insults

or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment

of either description for a term which may extend to two years, or with fine, or with both.”1

“S-499 Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.”2

And there are also many other enacted laws such as the Official Secret Act (1923), the Child Law (1993), the Television and Video Law (1996), the Media Law (2014), the Printing and Publishing Law (2004), the Telecommunication Law (2013), the Electronic Transactional Law (2014), and the Right to Peaceful Assembly and Peaceful Procession Act 2011 Among them, Section 3 of the Official Secret Act 1923 and Section 66 (d) of the Telecommunication Law 2013 got more criticism because they can seriously affect the freedom of expression right

Section 3 of the Official Secret Act 1923 provides that;

“(1) If any person for any purpose prejudicial to the safety or interests of the State—

(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or (b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to

be, directly or indirectly, useful to an enemy; or

1 Penal Code 1861, Section 295A.

2 Penal Code 1861, Section 499.

(c) obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which

is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy;

he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defense, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of the State or in relation to any secret official code, to fourteen years and

in other cases to three years

(2) On a prosecution for an offence punishable under this section with imprisonment for a term which may extend to fourteen years, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or password is made, obtained, collected, recorded, published

or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document or information shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.1

In September 2018, the journalists, U Wa Lone and U Kyaw Soe Oo 2018 were sentenced to 7

years in prison by Yangon’s Northern District Court under the Myanmar Official Secrets Act, 1923 After a trial that lasted more than eight months, a judge in Yangon’s Northern District Court found the two reporters of the Reuters News Agency guilty of possession of classified documents Wa Lone and Kyaw Soe Oo were arrested in December 2017 The judge said most of the counter-arguments

by the defendants’ lawyers and the journalists were “irrelevant” or “illogical.” “Instead of acting like ordinary reporters, they are found to have tried to intentionally damage the security of the country,” Judge U Ye Lwin said as he read the verdict, which took about one hour They did not follow media ethics endorsed by the Myanmar Press Council, the judge said, before sentencing the two journalists

to 7 years in prison

Network.(c)Stealing, cheating, misappropriating or mischief of any money and property by using any Telecommunications Network.(d)Extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening to any person by using any Telecommunications Network.”2

But in 2017, as the result of many criticism, this law was amended as follows:

Section 66 shall be replaced with the following:

“66 Whoever commits any of the following acts 66(a), (b) and (c) shall, on conviction, be liable

to imprisonment for a term not exceeding three years or to a fine or to both, and whoever commits act

1 Official Secret Act 1923, Section 3.

2 Telecommunication Law 2013, Section 66.

of 66(d) shall, on conviction, be liable documents detailing the status of security forces in Rakhine had fallen into the hands of armed ethnic groups fighting the government, it would have put the “lives

of security forces” in danger.1

Section 66 of the Telecommunications Law 2013 enacts that;

“Whoever commits any of the following acts shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine or to both.(a)Accessing and disturbing a Telecommunications Network, altering or destroying the determination of technical standards or the original form without the permission of the owner or a person who has the administrative right.(b)Releasing a virus or using any other means with an intention to cause damage to the Telecommunications to imprisonment for a term not exceeding two years or to a fine not more than one million or to both.”

Chaw Sandhi Tun 2015 is one of several people arrested for “insulting” public institutions or

persons on Facebook In response to media reports, the government explained on 20 October that the

arrests were to “protect the honour of someone who has been insulted.” Chaw Sandhi Tun posted

an image montage on her Facebook page, showing that the Myanmar military’s re-designed uniform

matches the colour of Aung San Suu Kyi’s dress On the montage were the words “if you like her [dress] so much, why not put it on your head”.2 Ma Chaw Sandi Htun was sentenced to 6 months

in prison by the court of the Maubin Township of the Ayeyarwady Delta Region in Myanmar on December 28, 2015 She was found guilty of defamation under the broad Section 66(d) of Myanmar’s Telecommunications Law stipulating that extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening any person by using media platforms 3

Section 66(d) shall be replaced with the following:

“(d).extorting, defaming, disturbing or threatening to any person by using any telecommunications network.”4

These above two laws are mostly used for proceedings by people including government organizations Especially, the telecommunication law is used for cases that happens on Internet Social Media There are over 100 complaints using Section 66 (d) of the Telecommunications Law 2013 And other laws related with media can limit the media freedom of expression right too Although prior censorship system canceled for print media, the licensing system is controlled by the Ministry And broadcasting system is also administered by the Ministry Therefore in Myanmar media freedom

of expression right depend upon government policy and can see many limitation system

According to the Freedom House report, from 2015 to 2019 the freedom rank of Myanmar can

be seen in the table as follow:

1 Lieutenant Colonel Yu Naing v U Wa Lone and U Kyaw Soe Oo 2018.

2 https://www.article19.org/resources.php/resource/38158/en/myanmar:-facebook-arrests-violate-international-law

3 https://globalfreedomofexpression.columbia.edu/cases/case-chaw-sandi-htun-myanmar/

4 Amendment of Telecommunications Law 2017.