Legal analysis

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Asia Pacific: Free expression and law in 2011

In this statement, ARTICLE 19 highlights the major legal developments, in particular laws and regulations, relating to freedom of expression and the right to information throughout Asia in 2011.

Trends

2011 saw both positive and negative trends in Asia Pacific.  On the positive side:

• The Indian government indicated its intention to decriminalise defamation
• Cambodia and Mongolia adopted Right to Information legislation
• Malaysia and Vietnam all took steps towards legislation which increased media freedom within their respective countries. However, these laws do not properly reflect international standards on freedom of expression.

On the negative side:

• Public debate and freedom of media continued to be restricted through the use of criminal defamation laws
• Several countries, for example Burma, China and Pakistan, adopted laws restricting the right to freedom of expression on the internet  
• National security laws, allegedly enacted with the aim of combating terrorism, continued to restrict freedom of expression. Such laws risk that individuals will censor themselves to avoid disclosing “state secrets”
• Cambodia and Malaysia considered legislation that would significantly limit the right to freedom of assembly. 

Press regulations

In 2011, numerous bills regulating the print media were introduced in the region.  Most of them fall short of meeting international standards on freedom of expression. For example:
Malaysia The Malaysian government committed to a review of the Printing Presses and Publications Act 1984 (Press Act), intending to amend rather than repeal it in 2011. The planned amendment would replace the requirement for annual renewals of media outlets with a one-off licensing policy. Despite relaxing the media-licensing requirement, the government would still control the distribution of permits to all newspapers, printing presses and publications, thereby effectively controlling media content. The Press Act is fundamentally flawed from a freedom of expression perspective and must be repealed in its entirety.
Vietnam The Prime Minister of Vietnam issued Decree No. 2 of 2011 on the Administrative Responsibility for Press and Publication Activities (“Decree”), which applies to a wide range of individuals. ARTICLE 19 raised concerns about the Decree:

• it over-regulates, moving into usually self-regulated areas such as the internet and print media.
• It requires the unnecessary registration of the print media and does not adequately protect journalistic sources or journalists from any abuse of administrative powers.

Broadcasting laws

A number of broadcasting laws adopted in 2011 raise concerns about increased governmental control of the broadcasting sector, as well as a lack of diversity in the media.
China In December 2011, the Guangdong provincial government (in south China) issued a new regulation, effective from 1 March 2012. This regulation:

• requires radio and television stations to apply to regulatory authorities for permission to broadcast in the indigenous Cantonese dialect instead of Mandarin
• states that Mandarin should be the main language used for broadcasts
• requires approval from central or provincial radio, film and television administrations for the use of any dialects (which television companies must accompany with subtitles)

Anybody violating the law will face “disciplinary action”.

Information and communication technologies

The regulation of information and communications technologies in the region is especially concerning. Burma, China and Pakistan all issued regulations which severely curtail freedom of expression on the internet and are likely to result in self-censorship by individuals. China issued two such regulations, in addition to the broadcasting law (see above).
Burma New internet regulations, issued by the Communications Ministry in May 2011, banned the use of external hard drives (CDs, USB sticks and floppy disks) in internet cafés.  Internet café owners are already subject to stringent regulation and are required to submit monthly records of internet usage to the Myanmar Post and the Telecommunications Ministry. Just two months before it issued these regulations, the government restricted the use of Skype and other VoIP (voice over internet protocol) services.
China In June 201, new police regulations require the installation of internet surveillance technology for wi-fi users in cafés, hotels and other businesses in central Beijing. This software will allow officials to check the identities of users and monitor their online activity. Businesses that fail to comply with the regulations face:

• a fine of approximately £1900 (the cost of the new software)
• the revocation of their licenses.

On 16 December 2011, the Beijing Municipal Government issued the “Beijing Microblog Development and Management Regulations”, targeting “micro-blog” (i.e. Twitter) users.  These regulations:

• require Twitter users to register their real names with micro-blogging services to be verified by government authorities.
• ambiguously prohibit the use of micro-blogs to disseminate rumours, obscenity or pornography, or to insult, incite illegal assembly or undermine national unity.

Pakistan On 21 July 2011, a Pakistan Telecommunications Authority (PTA) directive ordered internet service providers (ISPs) and mobile phone companies to implement the Monitoring & Reconciliation of International Telephone Traffic Regulations 2010. The regulations:

• prohibit all users from sending encrypted information over the internet
• oblige ISPs and mobile phone companies to report users who do so. 

The PTA directive enforces another regulation, issued in March that requires ISPs to:

• allow for real-time surveillance of all communications
• monitor and maintain records of all internet traffic, including websites visited and emails sent.

The PTA based the prohibition on the need to stop terrorists from communicating in secret via VPN (Virtual Private Network) technology. However, banning encryption will also allow for the routine surveillance of all internet users by the security services. 

Defamation and privacy

Developments relating to freedom of expression based on the protection of reputation were mostly negative in 2011. Although the Indian government announced an initiative to decriminalise discrimination, it has not yet been brought into effect. High profile cases in Thailand and Kazakhstan highlighted the chilling effect of those countries’ penal codes, which retain criminal liability for defamation.
Thailand 2011 witnessed an unprecedented spike in lèse-majesté cases (defamation of the monarchy). Thailand’s lèse-majesté law (Article 112 of Thailand’s Penal Code) prohibits “defamation, insults or threats” of “the King, the Queen, the Heir to the throne or the Regent” and imposes imprisonment for these offences of between three and 15 years. These provisions have been retained despite repeated international criticism. For example, in October 2011, the UN Human Rights Council expressed widespread concern about the increased use of lèse-majesté provision and its consequent impact on freedom of expression. However, on 23 November 2011, a Thai criminal court sentenced Amphon Tangnoppaku, also known as Ar Kong, to 20 years in prison for sending four text messages deemed to be insulting towards the Queen of Thailand. This is the heaviest sentence ever handed down for a lèse-majesté case in Thailand.
India Following public statements by the Minister of Information and Broadcasting and the Minister of Law and Justice, the Indian government announced an initiative to reform its Penal Code and decriminalise defamation. ARTICLE 19 applauds the government’s recognition that criminalisation of defamation results in a disproportionate restriction on freedom of expression and encourages speedy repeal of the relevant provision in the penal code.
Cambodia The courts have continued using the Penal Code (adopted in 2010) as a means of oppressing critics of the ruling Cambodian People’s Party (CPP) and silencing dissent. For example, in January 2011, human rights defender Sam Chankea was found guilty of defamation under the new Penal Code by the Kampong Chhang Provincial. The charges relate to an interview he had given to Radio Free Asia in 2009, in which he expressed his opinion about a land dispute between the villagers of Lorpeang village, Ta Ches commune, Kampong Tralach district of Kampong Chhnang and KDC International. Chankea has been ordered to pay a fine of 1 million riel (approx. £160) as well as 3 million riel (approx. £480) in compensation to the company, an excessive amount in relation to the average salary in the country. 

National security

There is growing concern over the use of national security laws to limit freedom of expression and the right to information. While Indonesia passed such a law, Malaysia repealed its controversial Internal Security Act and Emergency Ordinance.
Indonesia On 12 October 2011, the Indonesian Parliament passed the new “Law on State Intelligence”. This was the culmination of a government initiative to respond to the September 11 terrorist attacks and to international terrorism in general. The Law vaguely prohibits the revelation or communication of ‘state secrets’, punishable by up to 10 years in prison and fines exceeding 100 million rupiah (approximately $11,000), yet does not define the term ‘state secret’.  Civil society and journalists are, therefore, particularly vulnerable.  The Law also authorises the interception of communications by intelligence agencies without prior court approval.
Malaysia In September 2011, the Malaysian Prime Minister Najib Razak announced the repeal of the controversial Internal Security Act (ISA) and the Emergency Ordinance (EO), pledging to replace them with two new laws “strictly for terrorism” and similar to those in the United States and United Kingdom. ARTICLE 19 expressed concern at the reference to the UK anti-terrorism law, which the organisation has repeatedly criticised for criminalising the legitimate exercise of the right to freedom of expression.

Protection of journalists, human rights defenders and bloggers

The safety of journalists and others commenting or reporting on areas of public interest is one of the top concerns in the region. In 2011, too many journalists, bloggers and others have been murdered or attacked because of their work. There were no positive legislative developments in this area during the year.
India 2011 witnessed the murder of three human rights activists in India (environmental activists Amit Jethava and Sheila Masood in July and August 2011 and right to information activist and whistle-blower, Shri Ram Vilas Singh in December 2011). All three were murdered for seeking information to promote transparency and accountability in public authorities. Although the killings of the two environmental activists resulted in parliamentary demands for the protection of human rights defenders, no such protection has been enacted. ARTICLE 19 condemns the killings and calls for:

• speedy and effective investigation
• an immediate extension of existing human rights defenders’ protections to environmental activists.

Elections restrictions 

Burma In November 2011, President Thein Sein signed a law amending Burma’s Political Party Registration Law. This made notable changes to the controversial law, which previously required that all political parties “protect” the country’s Constitution. The new law:

• amends that provision, requiring only that political parties “respect” the Constitution.
• no longer restricts anyone currently serving a prison sentence from membership in a political party, paving the way for the re-registration of Aung San Suu Kyi’s party (the main opposition party), the National League for Democracy.

ARTICLE 19 welcomed this initiative but election restrictions in the country remain an issue of grave concern.

Official advertising

Government regulations concerning advertising indirectly influence the editorial independence of broadcast media.
China Supplementary provisions to the “Radio and Television Advertising Broadcast Management Rules”, effective from 1 January 2012, prohibit the insertion of advertising in the middle of 45-minute television drama broadcasts. These revisions are intended to implement the “Central Committee of the Chinese Communist Party Decision Concerning Some Great Issues in Deepening Cultural Structural Reform and Promoting the Grand Development and Grant Flourishing of Socialist Culture.” Although it is unclear what implications these provisions will have, they clearly interfere with the media independence.

Freedom of information and data protection 

In 2011, there have been some positive developments relating to the right to information in the region

• Cambodia has drafted the Law on Access to Information
• Mongolia has adopted the Law on Information Transparency and Freedom of Informatio

However, implementation and enforcement of such legislation remains an issue, as shown by the lack of implementation of the Indonesian law two years after its enactment.
Cambodia The Second Draft of the proposed Law on Access to Information in 2011 was welcomed by ARTICLE 19 as a positive and effective example of Right to Information (RTI) legislation in the region. In addition to all the main features expected from an effective RTI law, the Draft:

• outlines, for example, a public interest test
• outlines provisions on proactive disclosure and the protection of whistleblowers
• contains an independent oversight body.

This legislation is particularly important because the Constitution of Cambodia does not expressly protect the right to information. ARTICLE 19 strongly encourages the adoption of the Law, which would make Cambodia the model throughout Southeast Asia.
Mongolia On 1 December 2011, the Law on Information Transparency and Freedom of Information, adopted by the Mongolian Parliament on 16 June 2011, came into effect. ARTICLE 19 has called on the government and civil society of Mongolia to ensure the effective implementation of the law.
Indonesia: In February 2011, a report by ARTICLE 19 and the Tifa Foundation revealed that, despite having more than two years to prepare for the implementation of the Indonesian Freedom of Information Act (FOIA):

• local governments have failed to put in place mechanisms to publish information proactively and upon request
•  no local regulations governing implementation of the FOIA are in place
• existing proactive disclosures fall well short of FOIA’s requirements
• citizens have little or no awareness of either the Act itself or the right to access information held by public bodies under the Act.

Freedom of association and assembly

Closely related to the right of freedom of expression is the right of individuals to protest. In 2011, Cambodia and Malaysia circulated draft legislation that severely restricts the right of freedom of association and assembly in their respective states.
Cambodia During 2011, the Cambodian legislature circulated a number of drafts of the Law on Associations and Non-Governmental Organisations (“LANGO”), which severely restricts the freedom and independence of NGOs in Cambodia. The law includes:

• mandatory registration provisions
• a complex registration process, requiring that foreign NGOs maintain a “representative office” in Cambodia and “reach an agreement” with relevant government ministries
• an obligation for NGOs to submit timely annual reports to the government. Those who do not risk having their activities suspended or completely invalidated: there is no recourse to appeal for a suspension or termination. 

Malaysia On 20 December 2011, the Malaysian Senate passed the Peaceful Assembly Bill, which prohibits street protests and imposes monetary fines on violators.  When enacted into law, the Peaceful Assembly Act (PAA) will:

• impose arbitrary restrictions on the right to assemble peacefully, such as a 21-year-old minimum age requirement for organisers and protestors and venue restrictions specifying the few open spaces where assemblies are permissible. 
• give excessive, unlimited authority to the police to disperse assemblies and arrest participants.  

The passage of this bill will allow the Malaysian government to prevent legitimate political expression, as it did in July 2011: police arrested more than 1600 protestors and fired water cannons and tear-gas at demonstrators demanding electoral reforms.
Burma In December 2011, Burmese President Thein Sein signed into effect a new law allowing peaceful demonstrations in the country. All demonstrations had been banned previously. While permitting peaceful demonstrations is a step in the right direction, the law does not meet international standards:

• it, requires any group of more than one person to obtain a permit in advance
• anybody failing to obtain a permit may receive up to one year in jail
• anyone making a speech containing false information or information that could hurt the state may be imprisoned for up to six months. 

Singapore  Although accepting 84 of 112 recommendations made by Member States at its first UN Human Rights Council review, Singapore rejected recommendations regarding:

• media freedom
• the protection and promotion of the right to freedom of expression
• the protection and promotion of the right to peaceful assembly and association. ARTICLE 19 condemns this action. We also condemn:, Singapore’s absence of intention to:
• accede to the International Covenant on Civil and Political Rights (ICCPR)
• review its defamation policy
• repeal the Internal Security Act (ISA), which allows for detention without trial.

Conclusions

While there was progress in a few areas, there were more setbacks and disappointments during 2011.

• New proposals to limit freedom of expression on the internet and peaceful assembly were introduced throughout the region
• Despite attempts to improve it, most positive legislation consistently falls short of ensuring freedom of expression and the right to information in line with international standards
• National security laws continue to be used by governments to limit freedom of expression
•  Countries remain unwilling to decriminalise defamation.

ARTICLE 19’s recommendations

• All countries should abolish all defamation and insult laws, including those on seditious defamation. They should replace them with appropriate civil law regulation;
• Laws or regulations restricting freedom of expression on the internet should be repealed
• National security laws or provisions which illegitimately restrict freedom of expression should repealed
• Laws on the right to information should be properly implemented into domestic law
• Any laws or regulations on the media, including provisions concerning registration, should meet international standards on freedom of expression, association and assembly.

 Source : Article19