96 Hate Speech Ignited: Understanding Hate Speech in Myanmar B. Safeguarding Expression and Preventing Abuse of a Hate Speech Framework in Myanmar From the preceding section’s discussion, it is clear that the government of Myanmar has failed to prosecute “real” incitement cases648 and combat “genuine harms” associated with hate speech.649 In addition to concerns about the lack of prosecution of perpetrator, there is a corresponding question -- whether “at the same time members of minorities are de facto persecuted, with a chilling effect on others, through abuse of vague domestic legislation, jurisprudence and policies.”650 Three issues flow from this concern: 1) the laws themselves, 2) the application of the relevant laws, and 3) the adjudication mechanisms, which implicate the independence and competence of the judiciary and the rule of law generally.651 Myanmar has failed on all three fronts. The commentary of the UN Human Rights Committee on Articles 19 and 20 of the ICCPR is in- structive as far as restricting that well-established fundamental freedom of expression.652 The commentary states that any limitation on freedom of expression must meet all three of the following conditions: 1) legality, 2) legitimacy, and 3) necessity and proportionality with the onus placed upon the authority rather than the individual claiming their right to expression.653 First, legality requires that any restriction must be “provided by law.”654 The law must be sufficiently precise as to enable someone to regulate his or her conduct.655 It also requires that the law must be subject to regular legislative or administrative processes and should not confer unlimited discretion on those charged with its implementation and enforcement.656 Second, in order for a restriction of expression to be legitimate, the law must protect one or more interests like: respect for the rights or reputations of others,657 national security,658 public order,659 and public health or morals.660 The underlying commentary is that any restrictions or limitations must be done in accordance with principles of human rights and non-discrimination. Thirdly, any restricting of speech is to be “necessary to protect the legitimate interest; and proportional to achieving the purported aim.”661 Restrictions cannot be overly broad and must be “clearly and narrowly defined . . . so that they do not restrict speech in a wide and untargeted way” and are appropriate to protect the interests at risk, utilizing the least intrusive means.662 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 Rabat Plan of Action, para. 27. A/74/486, para. 1. Rabat Plan of Action, para. 27. A/74/486, 52. ICCPR, arts. 19, 20. ICCPR, General Comment No. 34, CCPR/C/GC/34, paras. 18, 22; A/74/486, para. 6; See also A/67/357, para. 41; A/74/846, para. 6; Rabat Plan of Action, para. 18. Ibid., art. 19(3). Ibid., para. 25. Ibid. Ibid., para. 28. Ibid., para. 29–30. Ibid., para. 31. Ibid., para. 32. Ibid., para. 33–34; Rabat Plan of Action, para. 18 (noting that “the benefit to the protected interest [must] outweigh the harm to freedom of expression, including with respect to the sanctions they authorize”). Rabat Plan of Action, para. 18