25 May 2016 – Update #1 to RAN 10/16

PEN welcomes the release of poet and PEN Myanmar member, Maung Saung Kha. Maung Saung Kha was arrested on 5 November 2015 on charges of criminal insult (under Article 505 of the Penal Code and Article 66(d) of the Telecommunications Law) in connection with a verse he posted on social media suggesting that he had a tattoo of the president on his penis. In a verdict delivered on 24 May 2016, the judge sentenced Maung Saung Kha to six months in prison and released him for time served. No further action needed at this time.

Thank you to all those who participated in the original action

PEN International opposes the criminalisation of defamation in all cases and adopted resolutions calling for the repeal of defamation and insult laws at its international Congresses in 2014 and 2015.

PEN International holds that criminal defamation laws are pernicious and widely used by those in positions of power to silence critics. Such laws – and the disproportionate penalties that they introduce – have a chilling effect on writers and journalists who uncover corruption, malfeasance and abuse of power and who are conscious of the possibility of serving lengthy prison sentences and the possibility of being left with a criminal record. The result is the stifling of reporting and public debate and difficulty in holding power to account. PEN continues to call on the Myanmar authorities to amend or repeal all legislation which impose unlawful restrictions on the right to freedom of expression in line with international human rights standards.

International human rights standards put a high value on uninhibited expression in the context of ‘public debate concerning public figures in the political domain and public institutions.’ The UN Human Rights Committee has been clear that the ‘mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties’.

The UN Special Rapporteur on freedom of opinion and expression, along with regional human rights mandates, have gone even further, stating: ‘Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.’

Background

On 8 October 2015, 23-year-old Burmese poet, PEN Myanmar member and director of the Poetry Lover Organisation – which aims to promote peace through lyrical literature – Maung Saung Kha, posted a poem entitled ‘Portrait’ (or ‘Image’) on Facebook, a part of which roughly translates to:

‘I have the president’s portrait tattooed on my penis / How disgusted my wife is.’

He immediately went into hiding after he was informed that the President of Myanmar had filed a case against him for criminal defamation under Article 66(d) of Burma’s Telecommunications Law and Article 505 of the Penal Code. The charges relating to Article 505 of the Penal Code were reportedly dropped last month.

Article 66 states that:
whoever commits any of the following acts shall, on conviction, be liable to imprisonment for a term not exceeding three years, or to a fine or to both.
(d) Extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening to any person by using any Telecommunication Network.

At least three other individuals are known to have been prosecuted under the same provision in November last year; these include a Kachin aid worker and an official for the Union Solidarity and Development Party.

According to reports, the police arrived at Maung Saung Kha’s home in Yangon’s Shwepyithar Township on 8 October 2015; however he had already fled. On 5 November 2015, Maung Saung Kha was arrested at Yangon’s Kamayut Township Courthouse, where he was attending the trial of a friend and fellow activist who faces charges for participating in student demonstrations.

Maung Saung Kha is reported to have said he had no intent to defame President Thein Sein, but that the verse was intended to be ambiguous, aimed at oppressive authority, not any one individual. According to The Irrawaddy, his inspiration came from images widely shared on social media of political party loyalists boasting tattoos of Aung San Suu Kyi. “If people have tattoos of those they love on their chests, I wondered where they might put a tattoo of someone they hate.”

Maung Saung Kha was among the supporters of the White Armband Campaign launched in March 2015 in Yangon and 19 other townships in protest at the government’s violent crackdown on student protestors. The white armbands bear the words, ‘We are Students. Respect Our Rights’. In an interview about the campaign, he stated:

The [government] needs to avoid the violence like this. All citizens have lost trust in the government due to the violence. Only if the government releases the [imprisoned] students and other activists who support the students, will the government gain the trust of the citizens again.

PEN International’s campaigning for freedom of expression in Myanmar

Myanmar has a been a key country for PEN International’s free expression campaigning for over 20 years, when many of the leading figures and founding members of PEN Myanmar such as such as Zarganar, Ma Thida and Nay Phone Latt  were first imprisoned. In July 2013, a PEN International Publishers Circle delegation went to Myanmar, and met with 20 writers who became the founding member of the PEN Centre. In September 2013, at the 79th International Congress in Reykjavik, Iceland, PEN Myanmar was formally launched, after a half-century of repressive military rule in the country. Blogger Nay Phone Latt’s speech to the Assembly of Delegates tells the story of this journey. PEN Myanmar has openly dedicated itself to strengthening freedom of expression and legal mechanisms in Myanmar, in addition to working on the pragmatic problems of publication and support of emerging writers.

In November 2015, Myanmar held its elections, which saw the National League for Democracy (NLD) come to power. April 2016 saw the release and pardon of some 83 political prisoners, including writer Htin Lin Oo  and five Unity journalists, by the newly elected President Htin Kyaw as part of celebrations of Myanmar New Year. The new government, which is steered by veteran democracy activist Aung San Suu Kyi, has vowed to prioritise freeing the scores of political prisoners jailed by the country’s former military leaders. PEN is hopeful that this new government will continue to make great strides in promoting freedom of expression.

For further information on the freedom of expression landscape in Myanmar, please see PEN’s joint submission with PEN Myanmar, PEN American Center, PEN Norway and Myanmar ICT for Development Organisation (MIDO) to the Universal Periodic Review and PEN’s Resolution on the Republic of the Union of Myanmar, adopted by the General Assembly during the 81st World Congress in Quebec City, Canada.