1.2 PROTECTING FREEDOM OF EXPRESSION IN MYANMAR Myanmar has acceded to various international agreements that enshrine FoE, although inconsistently and ineffectively translated into national legislation. Article 19 of the UDHR, to which Myanmar is a signatory, recognizes FoE as a fundamental human right and underscores that everyone is entitled to hold opinions without interference (UDHR, 1948). The UDHR is not legally binding but is the foundational document for a number of treaties and covenants that are. Sadly however, the main covenant that protects FoE – the 1996 International Covenant on Civil and Political Rights (ICCPR), has not been adopted by Myanmar. Article 19-1&21 of the ICCPR stresses the significance of FoE as an ‘indispensable condition’ enabling individuals to reach their full potential, emphasizing that FoE enables the entertainment of diverse perspectives and opinions, the foundation of a democratic society. All three of Myanmar’s previous constitutions, in 1947, 1974 and 2008, all recognize FoE as a fundamental right. For instance, the 2008 Constitution, under Section 354, states: “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: b. to express and publish freely their convictions and opinions” (Constitution of the Republic Union of Myanmar, 2008, p. 150) 1 10 International Covenant on Civil and Political Rights 1966, Article 19 (1) and (2). https://www2.ohchr.org/english/bodies/ hrc/docs/gc34.pdf (Note, however, that the 2008 Constitution is no longer considered current, after its provisions were broken by the military when they unilaterally called a state of emergency after detaining the President.) Myanmar currently remains a member state of the Association of Southeast Asian Nations (ASEAN). The ASEAN Human Rights Declaration 2012, under Article 23 declares 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” (ASEAN Human Rights Declaration , 2013, p. 7). However, this declaration is not legally binding, and the voracity with which these commitments were made can be called into question when one considers the track records of some of the regimes ASEAN represent. 1.3 RESTRICTING FREEDOM OF EXPRESSION IN MYANMAR During its decade under a civilian-military hybrid government (2011-2021), the country saw several reforms that increased access to fundamental rights, although FoE remained contingent and civic space restricted.2 Furthermore, the pervasiveness of patriarchal and authoritarian norms, a legacy of military rule, as well as the continued dominance of the military within state institutions were, and remain, structural barriers to FoE. Myanmar’s cyberspace has frequently been subject to internet blockages, disruption and 2 See for example Athan Myanmar’s Analysis on Freedom of Expression Situation in Four Years under the Current Regime (Athan Myanmar, 2020); paras 71-72 of the report of the UN Independent International Fact-Finding Mission on Myanmar, “Report of the Independent International Fact-Finding Mission on Myanmar” (UNHRC, 2018); and the CIVICUS Monitor with records the following national civic Space ratings: Myanmar rated as repressed (CIVICUS, 2019). surveillance. Digital space in Myanmar has been under heavy surveillance for a long time, but preceding the coup, the focus was on conflict areas. For instance, the world’s longest enforced internet shutdown in Rakhine lasted over a year in Rakhine State, depriving people of access to information and their FoE. Since the coup, Internet restrictions in Rakhine State have been extended across the country. A combination of colonial era laws and more recent laws and regulations have frequently been used as a pretense to control dissent and suppress FoE. Many of these laws contain overbroad provisions enabling authorities to be selective and arbitrary in the way they enforce them. Defamation clauses have frequently been used to criminalize legitimate political dissent, targeting individuals and media that criticize the government or the military. These legal instruments include but are not limited to the Telecommunications Law (2013), the Official Secrets Act (1923), the Privacy and Data Protection Law (2017) and the Penal Code (1861). To the disappointment of civil society and democracy activities across the country, little improvement was evident during the National League for Democracy’s (NLD) tenure. No significant efforts were made to change restrictive laws that are a barrier to FoE (Athan Myanmar, 2020). Additionally, the conciliatory stance of NLD towards military and intolerance to dissent resulted in dilatory reform and in many instances backsliding. Indeed, the NLD’s new Privacy Law created yet a further defamation clause that could be abused to crack down on critics. Cyberspace was subject to over-zealous controls limiting FoE. For example, 2,147 websites accused of contributing to the spread of “fake news” were blocked in March 2020 by the Ministry of Transport and Communications (Telenor, 2020; Article 19, 2020c), swiftly followed by the harassment and arrest of website owners. The 2019 Myanmar Freedom of Expression Scoreboard report highlighted this lack of progress. For instance, on a ‘digital freedom’ indicator Myanmar scored only 1.4 out of 10. For safety and security Myanmar scored 0 out of 10. The report also pointed to multiple areas where there had been little to no change, as well as some areas where the state had not only failed to