Protection Against Hate Speech Bill
Influential people that are intolerant of religious, ethnic, gender and sexual diversity have made hateful speech in Myanmar. Hateful speech has included everything from offensive and discriminatory remarks to incitement to violence and ethnic cleansing.
People making hateful speech are unaccountable. The government has not used Penal Code Article 153(a) which criminalises incitement, or taken any significant steps to stop intolerance.
The government should make policy and legal changes to promote tolerance of diversity, and use the Penal Code to prosecute the worst types of hateful speech.
An Interfaith Harmonious Coexistence Bill, later re-named Protection Against Hate Speech Bill, was started under the USDP government and has continued to be revised under the NLD. The Bill has not been made public by the Ministry of Religious Affairs and Culture but is in the third or fourth version.
Article 20 of the International Covenant on Civil and Political Rights tells governments that they must ban speech that incites war, or discrimination, hostility or violence towards a group. Groups include race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, sexual orientation, gender identity, disability or other status.
International standards do not say “hate speech” because it’s not precise enough and its vagueness could be used to censor legitimate speech. Often hate speech laws are used to persecute minorities and stop criticism of government, rather than protect marginalised people.
Rabat Plan of Action
The Rabat Plan of Action was created by the UN in 2013 to tell governments how to stop incitement without damaging freedom of expression. The Plan says that only the worst examples of hateful speech are incitement, and has 6 measures for testing whether it is or not.
- How unsafe the social and political context is – e.g. conflict or history of discrimination?
- How influential the speaker is – e.g. influential politicians or religious leaders?
- How intentional was the speech – e.g. did the speaker intend to incite?
- What was said – e.g. what was the content and how did people understand it?
- How big was the audience – e.g. was it public and how far did it go?
- How likely was it to harm – e.g. how certain was it that incitement would result in a short time?
The Rabat Plan says that:
- Governments should protect freedom of expression by using precise definitions of incitement rather than vague words and broad descriptions.
- Governments must promote tolerance of diversity among society using education and the media, and only punish incitement and hateful speech as a last step.
- Punishment for incitement must pass the freedom of expression 3-part test in Article 19 of the International Covenant on Civil and Political Rights.
- Only intentional incitement can be criminalised. Courts must prove that the defendant intended to incite people to be hostile, discriminate or be violent.
Promoting tolerance and equality
The Rabat Plan says that governments must prioritise promoting tolerance so that freedom of expression and equality are both guaranteed.
Freedom of expression is actually very important for minority groups. Laws on hateful speech are often used worldwide to repress and censor minorities for “hating” the majority, rather than protect them. Instead, minorities need their freedom of expression so that they can give alternative opinions, say about their culture, and stop stereotyping. Majorities are more likely to stop discrimination if they can hear minorities talk about it.
If governments really want to stop intolerance, they should make anti-discrimination laws to protect minorities. These laws should protect their rights to access healthcare, education, welfare, justice and housing, as well as political participation.
The Myanmar government should also train the police, judges and government officers.
Promoting tolerance and equality using the media
Governments can promote tolerance and equality in education and through public information campaigns. The Myanmar government could promote tolerance and equality through government-controlled and public service broadcasters, and include them as principles when giving out broadcasting licences.
The Broadcasting Council and the Myanmar Press Council can also promote tolerance and equality in all their work. They can facilitate and train minority media, create codes of conduct and monitor implementation, tracking when media uses stereotyping. They can also ensure that they include minority representation inside themselves.
Journalists can also help. They can make sure that when they report they do not use negative stereotyping and always give minorities an opportunity to speak out. Journalists can also do more coverage of minorities and promote a better public understanding of them.
Blasphemy and religion
Incitement laws protect people from hostility, discrimination and violence. Incitement laws do not protect ideas and they do not protect people from being offended.
It is important in a democracy that people can criticise ideas and opinions, including about religion or people within a religion. Even within a religion people have different opinions and should be free to talk openly.
2016 Protection Against Hate Speech Bill
Many people in Myanmar have been calling on the government to stop hateful speech which has incited discrimination and violence against women, ethnic and religious minorities.
The Interfaith Harmonious Coexistence Bill was started under the USDP government and picked up by the NLD government and is now in its third draft. It is now called the Protection Against Hate Speech Bill. It was leaked to civil society from the Ministry of Religious Affairs and Culture in 2016.
The Bill has some very big weaknesses:
- It creates definitions that are discriminatory and undermine the people’s right to freedom of religion, or freedom not to have a religion.
- It seriously undermines freedom of expression and prioritises censorship rather than promotes tolerance of diversity and pluralism.
- It condemns discrimination but has no punishment.
- It has vague terms on what kinds of expression are not allowed, which can be easily abused.
- It misses disabled people but protects groups defined by their status, wealth and rank, which could be easily used to protect powerful people from criticism.
- It criminalises blasphemy and “misusing religion for political purposes” which are not allowed under international standards.