Legal Framework: An International Human Rights Approach to Addressing Hate Speech and Protecting Free Expression in Myanmar Given the need to ensure that any restrictions are narrowly construed and applied, the human rights framework has emphasized the need for an independent judiciary and other adjudicatory mechanisms. For example, in discussing the six factors of the Rabat Plan of Action, one Special Rap- porteur noted there is a need for “careful consideration by the judiciary of the context in which hatred is expressed,” which requires examination “of various factors, including the existence of patterns of tension between religious and racial communities,” and “discrimination against the targeted group.”663 The Rabat Plan of Action reiterated that an independent, impartial, and objective judiciary is “vital” in hate speech cases because determinations require “contextual” analysis and “the individual circum- stances of each case, such as local conditions, history, cultural and political tensions, must be taken into account.”664 In short, without an independent and functional judiciary and the rule of law, the likelihood of successfully tackling hate speech is likely to be greatly reduced. The Case of Myanmar Myanmar’s overly broad laws regarding restrictions of freedom of expression combined with their selective enforcement, which has been used to silence dissent and critique has infringed on human rights protections and made combatting hate speech much more difficult.665 The lack of an independent judiciary and the rule of law has only made the situation worse.666 The outcome has been predictable -- the suppression of legitimate speech and the continuation of hate speech.667 As a starting point, Myanmar’s legal framework that is relevant to hate speech does not meet human rights standards. Myanmar has domestic legislation that could be used to prosecute perpetrators of hate speech. The 2008 Constitution also prohibits “abuse of religion for political purposes” and clarifies that laws may be promulgated to punish “any act which is intended or is likely to promote feelings of hatred, enmity, or discord between racial and religious communities or sects.”668 The Penal Code criminalizes incitement and expression that “by words, either spoken or written, or by signs, or by visible representations, or otherwise, promotes or attempts to promote feelings of enmity or hatred between different classes of [persons resident in the Union].”669 The various Myanmar laws used to curb dissent listed in Section III, however, fail to meet the re- quired test of legality, legitimacy, necessity and proportionality. Firstly, they contain broad definitions and inherently vague phrases like: “incitement to offences that damage public tranquility”; “feelings of enmity or hatred”; “wounding the religious feelings”; “deliberately affects the reputation of a person or organization or that disrespects their human rights”; “likely to cause, fear or alarm to the public, or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquility”; “extortion of any person, coercion, unlawful restriction, 663 664 665 666 667 668 669 A/67/356, paras. 46, 76, and 82 (noting importance of judicial training regarding international standards). Rabat Plan of Action, paras. 10, 27, 28 (noting how disadvantaged and vulnerable groups have “often very low recourse to judicial and quasi-judicial mechanism”). See, e.g., Human Rights Watch, Dashed Hopes, 31-32. See, e.g., International Commission of Jurists, “Myanmar: Independence and Impartiality.” Ibid. Constitution of the Republic of the Union of Myanmar (2008), Article 354(a), http://www.myanmar-law-library.org/ law-library/laws-and-regulations/constitutions/2008-constitution.html [hereinafter “Myanmar Constitution]. Myanmar Penal Code, Section 505, http://www.burmalibrary.org/docs17/1861-Penal_Code-ocr-en+bu.pdf. 97