A/HRC/39/CRP.2 1. Legal toolbox for restricting fundamental freedoms 1291. The interrelated rights to freedom of opinion and expression, association, and peaceful assembly are fundamental freedoms, critical to the functioning of a democracy and necessary for the realization of all other rights. They are firmly protected under international human rights law.2844 Although Myanmar has not yet ratified the International Covenant on Civil and Political Rights (ICCPR), the ICCPR’s provisions regarding the rights to freedom of opinion and expression, association, and peaceful assembly, as well as the interpretation and application of these provisions in international jurisprudence, remain relevant. Myanmar has ratified other treaties with comparable provisions, most notably the Convention on the Rights of the Child. 1292. Under international human rights law, the rights to freedom of expression, association and peaceful assembly are not absolute. The exercise of the right to freedom of expression (which includes the freedom to seek, receive and impart information and ideas of all kinds) may be subject to restrictions. However, such restrictions must be provided by law and be necessary in a democratic society for the respect of the rights or reputations of others, or for the protection of national security or public order, or of public health or morals. 2845 Necessary restrictions must be proportionate and formulated with sufficient precision. Where restrictions seek to protect national security, they are permissible only in serious cases of political or military threat to the entire nation. The right to freedom of expression embraces even expression that may be regarded as deeply offensive. All public figures, including those exercising the highest political authority, are legitimately subject to criticism and political opposition. Criticism of such officials, even where considered insulting, is insufficient to justify the imposition of penalties.2846 The exercise of the rights to freedom of association and of peaceful assembly can be limited under similarly strict conditions only. 1293. The problem with the Myanmar domestic legal framework is twofold. First, the constitutional human rights guarantees with respect to the rights to freedom of opinion and expression, association and peaceful assembly are weak and ambiguous. Section 354 of the 2008 Constitution protects these rights for “citizens”, if “not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquillity or public order and morality”. Apart from the fact that, under international law, these rights should not be limited to citizens only, the concept of “community peace and tranquillity” is impermissibly vague and broad. In addition, the key requirement that the restriction be “necessary” to achieve the stated goals is missing. Second, multiple domestic laws contain imprecise or overly broad restrictions on the exercise of fundamental freedoms, including through the criminalisation of the peaceful exercise of such rights. 1294. Problematic laws that are frequently used to arrest, prosecute and convict civil society actors, journalists, lawyers and human rights defenders, with a view to intimidate and silence them, include: • Sections 143-147 of the Penal Code, penalising unlawful assemblies: these provisions contain an overly broad definition of unlawful assemblies, which may encompass peaceful assemblies. Importantly, section 147 stipulates that, when force or violence is used by an unlawful assembly, or by any member thereof, every member of such assembly is guilty of the offence of rioting. However, the right to peaceful assembly is an individual right: therefore, an assembly cannot be considered violent because a few people in the assembly take violent action. Individuals who do not engage in violence or incitement to violence should not be held responsible for the actions of others.2847 Such provisions allow for treating entire public protests as “unlawful” and for resorting to mass arrests of participants. 2844 2845 2846 2847 316 UDHR, arts. 19-20; ICCPR, arts. 19-22; CRC, arts. 13, 15; CPRD, art. 21; ASEAN Declaration, arts. 23-24. ICCPR, art. 19(3); CRC, art. 13. United Nations Human Rights Committee, General Comment no. 34 (CCPR/C/GC/34). A/HRC/31/66, para. 20.