In November 2019, a court in the Botataung Township in Myanmar handed convictions against six members of a satirical Thangyat troupe. Six members of a troupe named Peacock Generation Thangyat were sentenced to a year in prison for allegedly mocking Myanmar’s armed forces through their live-streamed performance.
Thangyat is one of the oldest forms of Burmese art and usually involves comedic and satirical pieces. Thangyat traditions involve young individuals publicly reciting humorous Thangyat lyrics, freely criticizing any topic from the field of politics or social behavior. This form of art has constantly been under threat from the government of Myanmar, facing a ban since 1988 by the military junta. However, the ban on the art form was lifted in 2016, with the National League of Democracy Party (NLD), led by Aung San Suu Kyi coming into power. However, the lifting of this ban involved caveats.
Section 66(d) of the Telecommunications Law of Myanmar, which criminalizes online defamation, has emerged as a major threat to the freedom of expression in Myanmar. The law envisages a punishment of two years imprisonment without the opportunity to avail bail. This provision has been used multiple times by the government to arrest activists and journalists in the country. Along with being charged under this section, the Thangyat troupe was also convicted under Section 505(a) of the Criminal Code, which criminalizes any statement made that is likely to lead to any member of the armed forces “to mutiny or otherwise disregard or fail in his duty as such”.
Article 19 of The Universal Declaration of Human Rights (UDHR) proclaims the right to freedom of opinion and expression, including the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers as a Fundamental Human Right to be universally protected. It seeks to support the freedom and liberty of any individual or a community to articulate and express their ideas and thoughts.
While Article 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR) later adapted freedom of opinion and expression to having certain restrictions, draconian laws in Myanmar and their usage by the Myanmar Government has resulted in a precarious situation for the expression of ideas in the country. The ICCPR provides for certain restrictions for the purpose of respecting the rights of others, the protection of national security, the prevention of spreading propaganda for war and advocating national, racial or religious hatred. However, Section 66(d) has been used very loosely, leading to the military and the government commonly using it as a weapon to stifle voices in the country. In June 2017, a local human rights leader was arrested and charged under this for live-streaming a play that was critical of the military and its clashes with local ethnic groups. Since 2015, approximately 140 cases of defamation have been brought up and at least 43 journalists have been arrested as of September 2018.
Additionally, a legal problem arises with the usage of the term “defamation” per this legal provision as the lack of a definition for the same gives the judiciary the leeway to interpret the law according to its own subjective discretion, making it very arbitrary in usage. Since the term has no clear definition, and due to the stringent punishment involved for the violation of the law, journalists are now forced to guess what defamation consists of and then accordingly go ahead, leading to self-censorship.
In 2018, a Report by The United Nations Special Rapporteur on the situation of Human rights in Myanmar called for the amendment of the Telecommunications Law and the repealing of Section 66(d) to ensure that it complies with international standards. The Report termed the existence of defamation as a criminal offense as problematic and voiced out concern on the arbitrary arrests and prosecution of those exercising their right to freedom of expression.
The existence of this law is stifling for the expression and assertion of unpopular and sensitive views, and this goes against the essential values of democracy; the promise of promotion of which led the NLD to victory in the 2015 elections.
Authored by: Karthik Subramaniam, 2nd Year Student, NALSAR University of Law, Hyderabad