Rohingya Calendar Trials
Facts – In November 2015, a printing house in Yangon published hundreds of calendars that referred to Myanmar's ethnic Rohingya Muslims as an ethnic minority. Following complaints by an organization made up of Buddhist monks and nationalists, the police raided the printing press and authorities charged six men with violating Article 8 of the Printing and Publishing Enterprise Law, for "provoking for the purpose of deteriorating the rule of law." A court fined them each 1 million kyats ($845). Five of the men were rearrested the following day on November 24, 2015. They were charged and four of them were ultimately convicted under Section 505(b) of the Penal Code which prohibits speaking or reporting “with intent to cause, or which is 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” and is punishable through “imprisonment which may extend to two years, or with fine, or with both.” Section 505(b) specifically targeted the use of the terminology "Rohingya" and "ethnic minority." The terms "Rohingya" and "ethnic minority" are not recognized by Myanmar's government.On June 14, 2016, the Pazundaung Township Court sentenced four of the men to one year in prison, after they had already served seven months in detention. Charges were dropped against a fifth man, and a sixth remains in hiding.
Issue – Do the Rohingya Calendar arrests, conviction, and sentencing on charges of inciting disobedience under the laws of Myanmar comply with international law requirements?
Rule – Under the Universal Standard of the ICCPR, incitement laws must not stifle freedom of expression. The test is six-prong.
The first prong (legality) requires that the restrictions on freedom of expression are provided by law and must not be overbroad. The law must be formulated with sufficient precision.
The second prong requires legitimate grounds which include rights of others, or national security, public order, public health, or morals.
The third prong (necessity) requires that the restrictions must be necessary for a legitimate purpose, and must be the only way to achieve protection.
The fourth prong (proportionality) requires that the restrictions must not be overbroad, must be the least intrusive instrument necessary amongst those which might achieve the protective function, and must be proportionate to the interest being protected.
The fifth prong (intent) requires the existence of intent, specifically the intent to incite discrimination, hostility, or violence.
The sixth prong (causation) requires a direct and immediate connection between the expression and threat.
First prong: (1) Legality – Myanmar has a number of statutes concerning incitement, including Penal Code Articles 121, 123, 124B, 350, and 505, Electronic Transactions Law Article 33,Telecommunications Law Articles 66, 68, and 71, and Printing and Publishing Enterprise Law Articles 7 and 8. Many of these laws criminalize nebulous conduct, especially in how they are applied making them overbroad. In the Rohingya Calendar case, restrictions on freedom of expression were provided for in Article 8 of the Printing and Publishing Enterprise Law and Section 505(b) of Myanmar's Penal code. However, the laws in this case are broad in that they do not necessarily define how words, such as "Rohingya" or "ethnic minority", can provoke "for the purpose of deteriorating the rule of law" or were used “with intent 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” Given that the Universal Standard requires laws to be made with sufficient precision to restrict freedom of expression,the first prong is not satisfied.
Second prong: (2) Legitimate Grounds – Myanmar's laws’ grounding in the protection of the reputation of others, national security, and public morality are all legitimate grounds for restricting freedom of expression. The second prong under the Universal Standard is therefore generally satisfied. However, in the Rohingya Calendar's case, after being detained, fined, and released, the men were rearrested and charged under a different law that mandated a harsher penalty of jail time as well as fines. As applied here, the restriction seems designed to enforce a government narrative rather than to uphold public order based on the protection of the public from hearing the terms “Rohingya” or “ethnic minority” or the assertion that one constitutes the other. Therefore, in the Rohingya Calendar's case, there was no legitimate grounds for restricting the freedom of expression. Hence, in the Rohingya Calendar case the second prong is not fulfilled.
Third prong: (3) Necessity – Since no legitimate grounds is applicable to this case, this does not fulfill the requirement that there be a legitimate purpose in restricting freedom of expression. Furthermore, it can be argued that the multiple arrests in this case were not the only way to achieve protection was would be required under the Universal Standard.
Fourth prong: (4) Proportionality – Though Myanmar recently instituted the Printing and Publishing Enterprise Law, which levies fines on conduct like incitement, it also applies jail sentences to often nebulous conduct. Unlike in some other cases, it is also not clear the publisher had the opportunity to reverse publication to avoid penalty. Regardless, years of imprisonment even alongside a fine that can amount to nearly a year’s wages or more is disproportionate for material that is “likely to cause” incitement (reflecting an overbroad and intrusive application of the law), but lacks concrete proof of such. This is indicative of how the fourth prong fails the Universal Standard's requirement that the restriction should not be overbroad, should be the least intrusive, and proportionate to the interest being protected.
Fifth prong: (5) Intent – Other than the Emergency Provisions Act, Myanmar’s incitement laws generally contain intent provisions. Section 505 requires “the intent to incite,” but also criminalizes publications “likely to incite.” As was the case in the Rohingya Calendar's case, this does not require specific intent to incite. The fifth prong is therefore not satisfied because under the Universal Standard there must be an intent to incite discrimination, hostility, and violence.
Sixth prong :(6) Causation – While there has been violence concerning the Rohingya in the past, there is no evidence that the court identified in determining that the use of the terms "Ronhingya" and "ethnic minority" alongside the use of a quote by a former Burmese prime minister in a calendar presented the likelihood of a risk of incitement. Regardless of the likelihood, it is clear that as applied there was no real causation requirement in that there was no determination that there was a direct and immediate connection between the expression and the threat. The sixth prong therefore fails.
Conclusion – The analysis of the Rohingya Calendar's case and Myanmar's laws presented above through the use of the six-prong test renders Myanmar a non-compliant with the Universal Standard.
Note: Myanmar held its first democratic election in 25 years in November 2015, and has since begun a series of democratization and transition back to civilian rule. Recently, Myanmar repealed the Emergency Provisions Act, a decades-old law often used to imprison dissidents. The law had not been enforced since the Daw Aung San Suu Kyi-led government took power in March of 2016.