Update:
It was reported today, 23 November, that the judge has refused to throw out the case of Chaw Sandi Tun as requested by her defence lawyer, Robert Sann Aung. The case regarding her defamation charges will, therefore, go ahead.
The court were asked to throw out the charges on the grounds that they were not filed by a complainant who had been directly defamed. The appeal was rejected, with the court judging the defamation charge to broadly concern military personnel, not a particular individual.
ARTICLE 19, the Gender Equality Network (GEN) and Myanmar ICT for Development Organization (MIDO) call for the immediate and unconditional release of Chaw Sandhi Tun, who has been arrested and detained for posting a satirical gender-related image on Facebook.
Chaw Sandhi Tun is one of several people arrested over the past week for “insulting” public institutions or persons on Facebook. In response to media reports, the government explained on 20 October that the arrests were to “protect the honour of someone who has been insulted.”
The Government’s Position is not supported by International Law
Firstly, criticism of public bodies and officials is fundamental to democracy. International law is clear: States “should not prohibit criticism of institutions, such as the army or the administration”.[1] Public bodies should be prohibited from bringing defamation cases, and individual public officials should bear a higher level of criticism due to the nature of their work.
Secondly, while some criticism may be regarded by some people as insulting, international law declares 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”.[2]
Thirdly, international law protects not only those views that are favourably received, but also those that some people may find controversial, shocking or offensive. It explicitly protects the freedom to joke, to make light of serious things, to exaggerate, to trivialise, to satirise, parody and mock.
Finally, if government officials or bodies wish to defend themselves from criticism, they have (more than) adequate means to do so, including vast public relations machines. In a democracy, speech can best be challenged by more speech, not less.
Gender in Myanmar
Chaw Sandhi Tun posted an image montage on her Facebook page, showing that the Myanmar military’s re-designed uniform matches the colour of Aung San Suu Kyi’s dress. On the montage were the words “if you like her [dress] so much, why not put it on your head”.
Placing a woman’s clothing from the lower body on a man’s head is considered by some in Myanmar to be offensive as it undermines a man’s “phon” or masculinity. This attitude is indicative of the broader environment for gender issues in the country, which often manifests in gender-based violence.
Gender-based restrictions on freedom of expression are common in Myanmar too, as a result of patriarchal and paternalistic mindsets.[3] This response by the authorities to Chaw Sandhi Tun is indicative of this, showing a kneejerk and disproportionate reaction to a perceived challenge to the military’s (seemingly fragile) masculinity.
Chaw Sandhi Tun’s satirical post is valuable not only because it critiques the political alignment of the military, but also because the clearly disproportionate reaction to it highlights entrenched gender prejudice in the country.
The Electronic Transactions Law
Chaw Sandhi Tun’s “attack” on the military’s “phon” resulted in her being arrested on 12 October and charged under Article 34(d) of the Electronic Transactions Law, which prohibits insult online.[4] She faces a potential five-year sentence, plus a fine.
For the four reasons detailed above, the Electronic Transactions Law is regarded as an illegitimate restriction on the right to freedom of expression under international law and as such, Chaw Sandhi Tun should be released immediately and unconditionally.
In addition, the Electronic Transactions Law should be amended to protect the right to freedom of expression over electronic media, and to bring all articles into line with international standards, including the three-part test established under Article 19 of the International Covenant on Civil and Political Rights.
34. Whoever commits any of the following acts shall, on conviction be punished with imprisonment for a term which may extend to five years or with fine or with both:
…
(d) creating, modifying or altering of information or distributing of information created, modified or altered by electronic technology to be detrimental to the interest of or to lower the dignity of any organization or any person.