Article 19 of the Universal Declaration of Human Rights (UDHR) states that “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.”
Subsection A of section 354 of the current Myanmar constitution guarantees that “Every citizen shall be at liberty to express and publish freely their convictions and opinions if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality.”
The UDHR, proclaimed by the United Nations General Assembly in Paris on December 10th 1948 as the General Assembly resolution 217 A, is a milestone document in the history of human rights drafted by representatives with different legal and cultural backgrounds from various regions of the world, setting out fundamental human rights to be universally protected for the first time.
Subsection A of section 354 is part of chapter VIII of the Myanmar constitution that prescribes the fundamental rights and duties of the citizens. In light of the above universal and local provisions relating to the right to freedom of opinion and expression, a legal requirement in Myanmar has garnered widespread censure after it comes out to be rights violating. While the stipulation is plausible by its purpose, the application of it substantially constitutes the infringement of free speech, turning into a government’s tool to action the public reproach. It is now notorious as a repressive clause after being subjected to frequent use of the authorities to silence dissent. The controversial provision is section 66 (d) of the Telecommunications Law passed by the 1st Pyidaungsu Hluttaw on October 8th 2013. The section reads “Whoever commits the act of using a telecommunication network to extort, threaten, obstruct, , defame, disturb, inappropriately influence or intimidate, on conviction be punished with imprisonment for a term extending to a maximum of three years, and shall be liable to fine or both.”
The purpose of the enactment of that law was to develop the telecommunications sector of the country by facilitating the opening up of the telecom market while regulating the people’s use of telecommunication means, paving the way for incoming international telcos. But later, the whole legislation becomes ill-famed when the governments exploit section 66 (d) to seek legal action against members of the general public provided their online postings somehow offend the executive elite. Some ordinary netizens, activists and journalists encounter arrests, prosecutions or prison sentences because of this provision. In Myanmar, legal proceedings taken under 66 (d) are mainly associated with Facebook use, for the world-leading social network platform predominates in society ever since the nascent stage of the rise in social media use among the populace.
Being slammed as a public suppression tool for those in power during the tenure of the previous quasi-civilian government that initiated the transition from military rule to democracy, 66 (d) continues with its bad image into the current prodemocracy, fully-civilian regime led by the ruling National League for Democracy (NLD) party which always advocates democratic values and norms. The exercise of 66 (D) by the authorities even escalates at the hands of the NLD as compared to the former administration.
There were a total of seven individuals prosecuted for breaching of 66 (d) under the previous government and five out of those were convicted, with almost all of the cases involving inappropriate social media expressions against the State leaders. Findings by a group that researched into the Telecommunications Law revealed there were 23 lawsuits opened under 66(d) up to the last week of November 2016 following the NLD-led government took office in April. And the litigation pertaining to 66 (d) has dreadfully intensified in the NLD era that the total number of citizens being put on trial under this section increases to 49 as of the second week of January 2017, according to the group.
Meanwhile, the data released from the Yangon Region Police Force revealed that there were more than 90 cases in which individuals were reported with 66 (d) in the period from January 2016 to July 2016. But the police did not communicate further details on how many people were on trial or how many were arrested or placed in custody as the consequence of the accusations. The figures were only for Yangon Region and it is hard to conjecture on nationwide scale.
Among those cases are a considerable number of prosecutions conducted for deeds deemed defamatory or insulting the administrative leadership, including two high-profile proceedings faced by Myo Yan Naung Thein, secretary of the NLD’s Central Research Committee and two executives at Eleven Media Group.
Section 80 of the Telecommunications Law, which requires all violations embodied in the legislation to be cognisable offences, confirms the arbitrary practice of section 66 (d) as the office holders in law enforcement handle the complaints at discretion – i.e., their response to a complaint is largely dependent on the fact that a plaintiff is speaking for a State leader or not. It is normal to see the police’s action is not immediate and active enough when an ordinary citizen files a lawsuit against someone under 66 (d).
The provision of section 80 reads “(a) Offences contained in this law are prescribed to be cognizable offences. (b) In instituting an offence under this law, the prior sanction of the Ministry shall be obtained”. Thus not only law enforcement personnel but also officials at the Ministry of Home Affairs would have a chance to pursue discretional decision when it comes to complaints made under 66 (d). In reality, the latter dictate of section 80 is not abided if the accused is an ordinary citizen, directly apprehended by the police to be brought to trial without the step of obtaining the sanction from the ministry, according to the observers. The noticeable difference between the number of individuals reported with 66 (d) and the number of those brought to court or placed in custody with the same is the best proof of discretionary conduct by office holders.
When the police make an arrest upon a complaint under 66 (d), the accused has no right to defend themselves against the allegations and is subjected to immediate arrest to be confined whether they actually committed the violation or not. And, it is possible for a person to report another with 66 (d) even though he himself is not the party most concerned. This fact enables the telecommunication network users to take revenge on one another as well as to plot against someone with fake accounts. Although there is no instruction to deny bail in 66 (d), the defendants are not granted bail in most of the cases prosecuted for offending the executive elite.
No rules were promulgated to properly exercise the provisions of the Telecommunications Law and so controversy arises when interpreting 66 (d) which is vaguely phrased and bears no clear-cut meaning. Lawyers and observers argue that this sort of stipulation should be incorporated in a Cyber Law, and a specific Cyber Law is recommended to control all forms of cybercrime. Myanmar has yet to enact a Cyber Law.
The group that researched into the 2013 Telecommunications Law has submitted a report addressing the flaws of the law to Amyotha Hluttaw and Pyithu Hluttaw. The Assembly’s Commission for the Assessment of Legal Affairs and Special Issues also has already reviewed the law and said that it would collaborate with other actors in the effort amending the controversial section.
It is the shame of the ruling NLD party, led by Aung San Suu Kyi who has continually engaged in overwhelming democratic rhetoric throughout her political life, to practise a legal requirement defiant to due process of law. The time is now for members of parliament to implement the change or eradication of section 66 (d); otherwise it will continue to jeer at the democratic bombast of the NLD members.
