New report denounces the worsening situation of Parliamentarians at risk in Southeast Asia

New report denounces the worsening situation of Parliamentarians at risk in Southeast Asia

JAKARTA — Parliamentarians in Southeast Asia continue to face risk of reprisal simply for exercising their mandate or expressing their political opinions, according to the latest annual Parliamentarians At Risk report from ASEAN Parliamentarians for Human Rights (APHR), launched today in Jakarta.

The increasing risks, both physical and otherwise, faced by parliamentarians in the region are totally unacceptable and a matter of the utmost concern. Parliamentarians are the representatives of the people and their safety and freedom reflect the health of the democracies in which they work. We call on ASEAN, as well as ASEAN member states, to implement sufficient protections for them and put pressure on those governments that are arbitrarily and unjustly persecuting their lawmakers,” said Mercy Barends,member of the Indonesian House of Representatives and APHR Chair.

The year 2022 saw a worsening trend for parliamentarians at risk in the region, particularly in Myanmar, where MPs face increasing dangers in the aftermath of the 1 February 2021 coup d’état. One lawmaker, Kyaw Myo Min, was tortured to death in detention and a former lawmaker, Phyo Zeya Thaw, was executed together with three political prisoners in Myanmar. The number of parliamentarians detained across Southeast Asia remains high at 85, with 84 in Myanmar and former senator Leila de Lima in the Philippines.

Even Myanmar MPs who have managed to take refuge in neighboring countries such as Thailand remain in a very precarious situation. Dozens of them are living in towns along the Thai-Myanmar border and  find themselves constantly harassed by the police as undocumented migrants, in constant fear of being detained or, even worse, be repatriated to their country, where they would face arrest, likely torture or even worse, at the hands of the junta,” said Charles Santiago, former member of the Malaysian Parliament, and APHR Co-Chair.

Outside of Myanmar, particularly in Cambodia, Malaysia, the Philippines and Thailand, cases of physical attacks remain rare, but governments often resort to politically motivated charges against opposition parliamentarians. Reprisals and threats are not only of a judicial nature. Parliamentarians also face online harassment, and being the victims of both disinformation campaigns as well as hate speech. 

In Cambodia, the government of Prime Minister Hun Sen has conducted a series of mass trials and convicted more than 100 members and supporters of the Cambodia National Rescue Party (CNRP), including a number of former lawmakers in absentia. Political persecution and intimidation by the government against members and supporters of the opposition parties, human rights defenders, land rights and environment protection activists, and journalists are expected to continue escalating in the lead up to the next general election, expected to be held in July 2023. 

“Hun Sen and his party have been slowly building a one-party dictatorship over the years. The process has been so slow that few have noticed, but the signs are unmistakably clear and have resulted in an almost totalitarian state. The international community must hold Hun Sen’s government to account for its widespread human rights violations and ensure the opposition parties and their candidates are able to contest in the 2023 general election in a free and fair environment with a level playing field before it is too late,” said Kasit Piromya, former Thai Foreign Minister and APHR Board Member.

Meanwhile, in Malaysia and the Philippines, online disinformation and hate speech against MPs continue to be widespread. Opposition parliamentarians in both the Philippines and Thailand also often face judicial harassment through the use of overly broad legislation, while the continued existence of draconian laws such as the Sedition Act and the Communication and Multimedia Act in Malaysia remain a threat that hangs over the heads of potential government critics. 

The use of laws as weapons against politicians is nothing but a perversion of the rule of law, one of the cornerstones of a democracy. In several countries across Southeast Asia, laws and courts are used as instruments of those in power, rather than what they should be: instruments to prevent or stop abuses. It is necessary to hold those governments that abuse their power to account and make them understand that they are not above the law,” said Mu Sochua, former member of parliament from Cambodia and APHR Board Member.

Click here to read the full Parliamentarians At Risk report.

Click here to read this statement in Burmese.

Click here to read this statement in Indonesian.

Click here to read this statement in Malay.

Click here to read this statement in Khmer.

Click here to read this statement in Thai.

Joint Statement: Cambodia should scrap rights-abusing National Internet Gateway

Joint Statement: Cambodia should scrap rights-abusing National Internet Gateway

We, the following 32 human rights organizations, call on the Cambodian authorities to revoke the Sub-Decree on the Establishment of the National Internet Gateway (NIG). Since passage of the sub-decree on February 16, 2021, the government has yet to address the serious human rights concerns raised by civil society groups and tech companies. At the same time, the government has been wholly non-transparent regarding the infrastructure, implementation, financing, and cooperating companies, agencies, and organizations involved in supporting the NIG.

The NIG sub-decree paves the way for the establishment of a digital gateway to manage all internet traffic into and out of Cambodia. Provisions in the sub-decree allow government-appointed NIG operators to block or disconnect any online connections (article 6), retain traffic data for a year and provide other network information as requested by authorities (article 14), and issue overbroad penalties for non-compliant telecommunications operators (article 16).

The sub-decree states that the purpose of the NIG is to facilitate and manage internet connections to strengthen revenue collection, protect national security, and — in terms that are overbroad, ambiguous, and prone to misuse — to “preserve social order, culture, and national tradition” (article 1).

While the exact technical infrastructure and how it will be operated is still unknown, there is little doubt the NIG’s true purpose is to enable the Cambodian government to tighten the noose on what remains of internet freedom in the country.

In April 2021, three independent experts appointed by the UN Human Rights Council expressed concerns that the sub-decree “poses risks to the fundamental freedoms of individuals, namely the freedoms of expression and opinion and the right to privacy and may expose individuals’ personal information without their consent, which would contravene international human rights instruments and Cambodian laws.” They reiterated this call to the government on February 1 2022, warning that the NIG “will have a serious negative impact on internet freedom, human rights defenders and civil society in the country, further shrinking the already-restrictive civic space in Cambodia.”

Cambodia is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the ICCPR protects the right of every individual against arbitrary or unlawful interference with his or her privacy. Article 19 of the ICCPR protects the right to freedom of expression. This right includes the “freedom to seek, receive, and impart information and ideas of all kinds.” Any measures the state takes that would interfere with these rights must be provided for by law, be non-discriminatory, and be strictly necessary and proportionate to protect the rights of others, national security, public order or public health or morals.

The government has repeatedly rejected all human rights concerns about the NIG. The government has also refused to explain how the NIG’s restrictions on freedom of expression and access to information are necessary to achieve any of the legitimate aims, and failed to address the lack of proportionality of the measures. Instead, the internet gateway is poised to restrict these rights in an overly broad manner, without any apparent limits. As UN experts, tech company representatives, and human rights advocates have pointed out, the sub-decree lacks procedural safeguards, independent oversight, and data and privacy protections.

There are grave concerns that the gateway will supercharge the government’s censorship capabilities, allowing it to scale up its website blocking. The gateway is also likely to have a chilling effect on online communications and generate self-censorship online among critical voices and independent media outlets who fear increased surveillance, harassment, and reprisals.

The sub-decree poses risks to data protection and data privacy, requiring government gateway operators to retain and share metadata. In the absence of a data protection law in Cambodia that would protect internet users from misuse of their data and provide certainty about where and how long data is retained, and who has access to it, the NIG will facilitate the authorities’ ability to identify users’ internet activities and habits, ultimately risking identifying the users themselves. Data retention without sufficient protection for data security will increase risks to data security from third-party interference, or hackers. Centralizing internet traffic and data under the NIG also creates a vulnerability for malicious acts, without guaranteeing service providers’ capacity to adequately address the resultant increase in data security needs.

In a press statement issued on February 15, 2022, Cambodia’s Ministry of Foreign Affairs claimed that it had conducted an “extensive study on infrastructure models from different countries around the world and found that most countries have internet gateways.” No information has been provided to back these sweeping assertions, such as which infrastructure models the authorities considered, what their benefits and disadvantages are, and whether the study was done with reference to Cambodia’s human rights obligations under various international human rights treaties.

In Cambodia, the government’s rushed adoption process of the sub-decree establishing the NIG was plagued by a lack of transparency. The authorities failed to hold any consultations, much less wide and inclusive ones, and did not invite inputs by experts, civil society groups, private actors, business groups, and other interested parties prior to the sub-decree’s adoption. The NIG appears designed to function as an authoritarian tool that will facilitate the government’s efforts to curtail free expression, association and privacy online as well as offline, and facilitate targeting of online expression by members of civil society, independent media, and the political opposition.

On February 15, 2022, the government revealed that implementation of the NIG, set to start the next day, would be delayed. No new date for the NIG implementation has been set. A spokesperson for the Ministry of Posts and Telecommunications told the news outlet Nikkei Asia on February 15 that the delay was due to the Covid-19 pandemic. However, another ministry spokesperson told the news outlet VOD that technical difficulties in implementing the NIG was the cause of the delay, stating that “we have to prepare to install and order equipment in order to prepare and create the gateway. And we have to give licenses to any company that the government understands that has the ability to create the gateway.”

Cambodia’s internet gateway greatly risks restricting the free flow of information between Cambodia and the rest of the world while establishing a system that will cast a wide net of surveillance across the country. Foreign governments, technology and telecommunications companies, internet service providers, business groups, UN agencies and others concerned should come together to seek to halt this wholesale attempt at information control.

Signatories:

Access Now

Amnesty International

ARTICLE 19

ASEAN Parliamentarians for Human Rights (APHR)

Asia Democracy Network (ADN)

Association for Progressive Communication (APC)

Bangladesh NGOs Network for Radio and Communication (BNNRC)

Campaign for Human Rights and Development International (CHRDI)

Centre for Civil and Political Rights (CCPR Centre)

CIVICUS: World Alliance for Citizen Participation

Civil Rights Defenders

Committee to Protect Journalists (CPJ)

Digital Reach Asia

Electronic Frontiers Foundation (EFF)

ELSAM: Institute for Policy Research and Advocacy

Freemuse

Foundation for Media Alternatives

FORUM-ASIA

Japan Computer Access Network (JCA-NET)

Human Rights Watch

International Commission of Jurists (ICJ)

International Federation for Human Rights (FIDH)

International Freedom of Expression Exchange (IFEX)

Lawyers’ Rights Watch Canada (LRWC)

Manushya Foundation

Open Net Association

PEN America

Ranking Digital Rights

SAFENet – Southeast Asia Freedom of Expression Network

Thai Netizens Network

WITNESS

World Organisation Against Torture (OMCT)

Net users in Thailand, you are being watched

Net users in Thailand, you are being watched

By Mu Sochua

Over the past two years, Thailand has not just suffered repeated Covid-19 waves, but it has also faced growing discontent and criticism. Widespread protests have taken place calling for major reform of the political establishment.

Many aspects of these protests have been innovative, not only because they challenged usually taboo subjects such as monarchy reform and the army in politics. The protests took place both on the streets as well as the internet.

The internet has become an increasingly important space in Thailand’s pro-democracy movement, with digital-savvy netizens using the web to spread their messages and make their voices heard in the form of videos, memes, popular hashtags, and social media posts.

The authorities’ attempts to quash the protest movement and the control measures — with political cyberspace campaigns, are repressive laws to restrict internet use and have their online access and activities limited and monitored by state surveillance.

In its 2021 Freedom on the Net report, which analyses internet freedoms globally, Washington DC-based Freedom House, a non-profit group on democracy rated Thailand “not free”, giving it a grade of just 36 out of 100. “The internet is severely restricted in Thailand,” the report said.

Among the weapons in the government’s arsenal to control the internet are the Cybersecurity Act 2019, which allows the government to monitor and access digital data it deems “cyber threats” to the country, and the Computer Crime Act (CCA)2017.

The CCA, first introduced in 2007 and amended in 2017, is draconian in nature. It grants broad powers to the government to conduct surveillance, censor free speech and opinion, and target activists and political opponents. It allows the government to prosecute those it deems to be spreading “false” or “distorted information”.

The act has repeatedly been used to arrest activists in order to restrict freedom of expression. At the height of the pro-democracy protests in 2020, authorities targeted protesters and warned them against using online platforms to mobilise people to join the demonstrations. According to the Thai Lawyers for Human Rights (TLHR), between July 2020 and September 2021, 90 people in 103 cases were charged under the CCA.

The government did not stop there. In August, the Ministry of Digital Economy and Society introduced a new ministerial notification to update rules on retaining computer traffic data of service providers, pursuant to the CCA. This new notification adds requirements for a range of digital service providers, including internet providers, social media platforms, and messaging applications, to collect data to identify individuals and hand it over to authorities upon request. This data is admissible in court. Even public venues providing internet access are required to install surveillance cameras to aid authorities in identifying internet users.

Ultimately, these new rules are here to assist authorities in tracking down individuals whose online activities they deem to have violated the CCA. Given how the authorities have used the broadly worded CCA against those calling for change in Thailand, there are legitimate concerns the new ministerial notification was made not to fight cybercrime, but instead to grant authorities added arbitrary powers to crack down on free speech in the digital sphere.

The new ministerial notification took into account the increased popularity of social media and messaging platforms such as Facebook, Line, Telegram, YouTube, and Instagram, among others, and has now added them as the subject of increased state surveillance, outside of any accountability for the government. Since these surveillance activities are justified by the authorities in the interests of “national security”, users are not able to invoke their right to privacy under the Personal Data Protection Act 2021.

Despite the government’s efforts to control cyberspace, Thai youths and various pro-democracy groups are still displaying extreme courage, continuing their street protests and using social media to express opinions, raise awareness, and mobilise their campaigns. Yet, for them and all people in Thailand, keeping themselves safe from the government’s prying eyes is becoming increasingly challenging.

Internet service providers and parliamentarians should be at the forefront of fighting back against digital dictatorship, and urging the government to repeal laws and regulations that curtail internet freedom.

Mu Sochua is a board member of Asean Parliamentarians for Human Rights (APHR) and a former Cambodian member of parliament.

This article first appeared in the Bangkok Post

Singapore: Withdraw Foreign Interference (Countermeasures) Bill  

Singapore: Withdraw Foreign Interference (Countermeasures) Bill  

Singapore: Withdraw Foreign Interference (Countermeasures) Bill  

Click here for to download the pdf file.

October 13, 2021 – Today, eleven undersigned organizations called on the Government of Singapore to withdraw the Foreign Interference (Countermeasures) Bill (‘FICA’). FICA’s provisions contravene international legal and human rights principles – including the rights to freedom of expression, association, participation in public affairs, and privacy – and will further curtail civic space, both online and offline. 

On October 4, 2021, the Parliament of Singapore passed FICA, three weeks after it was tabled on September 13 by the Ministry of Home Affairs purportedly to “prevent, detect and disrupt foreign interference in (…) domestic politics”. This was despite serious concerns that the law could undermine civic freedoms – raised by members of the public, civil society, legal fraternity, independent media, political opposition, academia and industry in Singapore. The bill went through both its second and third readings in one parliament sitting and FICA was passed without significant amendments to address key concerns. 

While the protection of national security may be a legitimate aim, FICA contravenes the rule of law and the principles of legality, necessity and proportionality under international human rights law. Overbroad and ambiguous provisions draw within its scope a wide range of conduct, activities and communications “directed towards a political end in Singapore”. As a result, almost any form of expression and association relating to politics, social justice or other matters of public interest in Singapore may be ensnarled within the ambit of the legislation – making it difficult, in turn, for the average individual to reasonably predict with precision what conduct may fall foul of the law. Vague provisions also allow for unfettered executive discretion in interpretation and implementation of the law. Unlimited executive discretion – together with severe penalties under the law – can result in executive overreach into what it deems permissible as civic discussion and public debate. FICA also provides no mechanism for independent judicial oversight or provision of remedy where human rights violations occur as a result of the enforcement of its provisions. The law thus fails to provide for the least intrusive mechanisms to achieve its stated aim of protecting national security while greatly enhancing the risk of executive abuse.

FICA empowers the Minister for Home Affairs to order the removal or disabling of online content undermining the right to freedom of expression. The Minister is, for example, empowered to order publication of mandatory messages drafted by the authorities, ban apps from being downloadable in Singapore, and order disclosure of private communications and information, when the Minister “suspects or believes” that someone is undertaking or planning to undertake online communications activity “on behalf of a foreign principal”, and that it is in the “public interest” to act. The law makes it a criminal offence to undertake “clandestine” electronic communications on behalf of a foreign principal under certain circumstances, including when that activity “diminishes or is likely to diminish public confidence in (…) the Government or a public authority” or “is likely to be directed towards a political end in Singapore”. Activity “directed towards a public end” includes conduct influencing or seeking to influence government decisions or public opinion on matters of “public controversy” or “political debate” in Singapore. The government can also designate individuals as “politically significant persons” after which they can be required to follow strict limits on sources of funding and disclose all links with foreigners or foreign entities.

FICA’s provisions can also facilitate violations of the rights to freedom of association and participation in public affairs. “Conduct” committed in connection with a “foreign principal” and “directed towards a political end in Singapore” is criminalized where this involves “covert” communication or “deception” – which is defined as including any “deliberate” use of “encrypted communication platforms”. The expansive and vaguely worded definition of activities “directed towards a political end” can cover a broad range of activities – including social justice advocacy, artistic commentary, academic research, social enterprise or journalistic reporting – carried out by, among others, members of civil society, academia, media, the arts and industry. Meanwhile, the overbroad configuration of connection with a “foreign principal” as “arrangements” with any “foreigner” or “non-Singapore registered entity” that can be “written or unwritten” brings within the law’s remit nearly all forms of cross-border collaboration or engagement. Use of “encrypted platforms” as a reflection of “covert” communications also allows for criminal intent to be inferred from a wide range of modes of communications via modern electronic devices and platforms – including through encrypted messaging and email services; and the use of online platforms through secure connection services, such as virtual private networks (VPNs). 

FICA will disproportionately impact members of civil society, independent journalists, academics, researchers, artists, writers and other individuals who express opinions, share information and collaborate to advocate on socio-political issues and matters of public interest. As their work can involve critical opinions and is often underpinned and supported by cross-border collaboration, research and funding, they are exposed to increased scrutiny and sanctions under FICA. The issues on which they work will also come under increased State oversight and control. Executive oversight and control can, in turn, infringe not only their rights to freedom of expression and association but the rights of other individuals in Singapore who rely on their work to participate in public affairs, which includes conduct of citizens to “exert influence through public debate and dialogue with their representatives or through their capacity to organize”. 

Severe penalties under FICA are disproportionate. In addition, many of those penalties may be imposed without adequate independent oversight or remedy in case of human rights violations, which can result in a chilling effect on civic space and discussion. Directions can be issued by the authorities to censor, restrict or block access to online content, accounts, services, apps or locations deemed to violate the law. The law also allows for the authorities to designate “politically significant” individuals and entities and order them to “disclose foreign affiliations” and “arrangements” or to end “reportable arrangements”. However, there is a lack of independent oversight over these restrictions and designations. These directions may only be appealed to a Reviewing Tribunal appointed by the President on advice of the Cabinet, and decisions made by this Tribunal cannot be appealed to the High Court except for non-compliance with procedural requirements. Further, individuals can face criminal sanctions under the law for “clandestine foreign interference by electronic communications activity” and non-compliance with directions, which may result in steep fines and imprisonment terms. These criminal offences are arrestable and non-bailable. 

These penalties and restrictions not only risk undermining the right to privacy, but increase the risk of individuals self-censoring and deliberately deciding not to participate in or engage with cross-border networks to avoid potentially falling foul of the law. Their negative impacts can be particularly severe on independent online platforms, which can be banned from receiving funding or other financial support from foreign individuals or entities, and on journalists, political commentators, civil society members and community researchers who often nurture public opinion and debate through information, opinions and advocacy shared online. 

In light of these significant concerns, we request that the Government of Singapore withdraw FICA. The law risks imminently and substantially narrowing already limited civic space in the country – particularly where this space is significantly restricted through abuse of other existing laws such as defamation and contempt of court provisions; the Protection Against Online Falsehoods and Manipulation Act (POFMA), the Public Order Act and the Administration of Justice (Protection) Act. The imminent enactment and future enforcement of FICA will significantly undermine the Government of Singapore’s obligations under international law to protect, promote and fulfil human rights – instead allowing for the State to expand curtailment of civic freedoms to the detriment of its people.

 

Signatories:

Access Now

Amnesty International

ARTICLE 19

ASEAN Parliamentarians for Human Rights 

Asian Forum for Human Rights and Development (FORUM-ASIA)

CIVICUS: World Alliance for Citizen Participation

Digital Defenders Partnership

Human Rights Watch

International Commission of Jurists

Lawyers’ Rights Watch Canada

Wikimedia Foundation

Summary Legal Analysis

International legal principles are clear that even as the protection of national security is a legitimate purpose for the restriction of certain rights, restrictions must be narrowly defined, strictly necessary and proportionate to this aim. The UN Human Rights Committee has clarified that this three-part test of legality, necessity and proportionality applies to freedom of expression. Limitations on this right must “conform to the strict tests of necessity and proportionality” and be “directly related to the specific need on which they are predicated”. Restrictions on the right to freedom of expression also negatively impact upon the rights to association and participation in public affairs as freedom of expression underpins the “free communication of information and ideas about public and political issues between citizens, candidates and elected representatives”. Meanwhile, the UN High Commissioner for Human Rights has noted that the three-part test also applies to the right to privacy in the digital age – noting that any interference with privacy must be “necessary and in proportion to” a legitimate aim, “be the least intrusive option available,” and “not render the essence of the right meaningless”.

Overbroad and ambiguous provisions 

FICA’s overbroad and ambiguous provisions allow for abusive interpretation and implementation by the authorities, while failing to provide clarity to the public on what conduct would fall foul of the legislation. Its potential to encompass a wide range of conduct fails to ensure compliance with the principle of legality and confers overbroad discretion in interpretation and implementation upon those charged with enforcement of the law.

FICA applies to “conduct” engaged on behalf of a “foreign principal” directed “towards a political end in Singapore”. (ss 4; 8) This includes “arrangements” with any “foreigner” or “non-Singapore registered entity” that can be “written or unwritten” to “influence or seek to influence” “public opinion” on matters of “public controversy” or “to promote or oppose political views, or public conduct relating to activities that have become the subject of a political debate”. (ss 4; 5; 8(f); 8(g)) 

Criminal penalties apply where a person “undertakes electronic communications activity on behalf of a foreign principal” in a “covert” or other manner that “involves deception” which results in the publication in Singapore of “information or material” which “is likely to be prejudicial” to “public tranquillity” or “public order”; “likely to diminish public confidence in the Government” or is “likely to be directed towards a political end.” (ss 17-19)

The expansive and vaguely worded definition of activities “directed towards a political end” encompasses a broad range of activities – including social justice advocacy, artistic commentary, academic research, social enterprise or journalistic reporting relating to a “political” issue – of civil society, academia, media, the arts and industry, amongst others. Individuals and organizations are therefore unable to accurately define what conduct can risk violating the law. Engagement “on behalf of a foreign principal”, for example, can also cover collaboration with foreign actors to conduct and share research; receive funding to hold events or implement projects; and cross-border training and education.

Matters of “public controversy” and “political debate” can also overbroadly apply to pertinent issues of public interest on which individuals engage – potentially limiting their rights to freedom of expression, association and participation in public affairs. This risks impacting particularly on civil society engaging in research and advocacy – whose purpose is specifically to nurture and direct “political debate” on matters of public interest, including “controversy”, and to oversee and check powers of the executive. There is a risk that the authorities may bring within FICA’s remit civil society’s cross-border engagement and information-sharing, both of which are fundamental to policy and advocacy work, thereby negatively affecting collaboration among civil society actors in Singapore and organizations based outside the country, such as the organizations that are signatories to this statement.

“Public tranquillity” and matters which “likely diminish public confidence in the Government” also allow for an overly broad interpretation to target critical commentary on government policy even in the absence of any legitimate reason to limit freedom of expression. “Covert” conduct includes “deliberately moving onto encrypted communication platforms” (p. 205), which can apply to the use of most modern electronic devices and be relied on to infer criminal intent from a broad range of potential communications – including through encrypted messaging and email services; and the use of online platforms through secure connection services, such as virtual private networks (VPNs).

Unfettered executive discretion

FICA allows for unfettered executive discretion to censure expression and association deemed impermissible by the State. In fact, it provides for wide potential for the authorities to encroach on the rights to free expression, association, participation in public affairs, and privacy, even in circumstances when such encroachment is not strictly necessary to achieve the purported aim of protecting national security.

FICA allows authorities to designate individuals and entities as “politically significant” if their activities are “directed in part towards a political end” and if “it is in the public interest”. (ss 47, 48) This can result in any individual being potentially targeted under the law for expression or advocacy on issues relating to politics or public interest in Singapore. It can also apply to any individual currently working on these issues for a foreign organization or in collaboration with foreign actors – either through academic, civil society or other modes of arrangement. 

Designated “politically significant” individuals and entities can be ordered to “disclose foreign affiliations” and “arrangements” through reports to the authorities on their activities, even where they are “not directed towards a political end in Singapore”. (ss 76, 78) The authorities can also direct these “reportable arrangements” to end. (s 84) This can result in infringements of the rights to privacy and association of designated individuals working on issues of social concern in Singapore – particularly journalists, academics and researchers who may be required to reveal information and communications with foreign actors in contravention of professional ethics. Designated “politically significant” journalists and independent media outlets can also be issued a “transparency directive” – requiring them to disclose any “political matter with a foreign link” published in Singapore and identify the author’s name and nationality and any links to a “foreign principal”. (s 81)

FICA also prohibits “politically significant” individuals and entities from accepting “donations” from “impermissible donors” who are not Singaporean individuals or companies (ss 55, 56); caps anonymous donations at S$5,000 a year (ss 57, 58); and bans foreigners from provision of “voluntary labour” to such individuals and entities. (ss 55, 56) These provisions risk being abused to muzzle social justice initiatives, civil society organizations and independent media outlets that rely on independent funding and potential support of individuals who are not Singaporeans to volunteer work or research time.

Notably, FICA empowers the authorities to order any person to “provide any document or any information or material” on activities “directed towards a political end in Singapore” where it is deemed “necessary” for the exercise of powers under FICA. (s 108) This potentially violates the rights to privacy and association of any individual in connection with any individual or entity in relation to any matter under FICA – with a penalty of a fine of up to S$5,000 (approx. US$3,685) and continuing fines of up to S$500 (approx. US$368) for “every day or part of a day” of non-compliance. (s 108)

Severe penalties 

Severe penalties can result in a chilling effect on the free exercise of the rights to expression, association, and participation in public affairs. Directions can be issued by the authorities under Part 3 of the law to “stop”, “disable” or “block access to” online content; and “restrict accounts or services” and “remove apps” for apparent violations. An online location which is deemed a “proscribed online location” by the Minister (s 24) on a Part 3 direction can then be prohibited from “soliciting or procuring” “any expenditure to operate” or for “services” provided for the platform. (s 39) Non-compliance with these restrictions amounts to a criminal offence, which is arrestable and non-bailable.  Individuals can be slapped with severe criminal sanctions for alleged “clandestine foreign interference by electronic communications activity” – they can be fined up to S$100,000 (approx. US$74,000) and/or imprisoned for up to fourteen years. (ss 17 – 19)

The UN Human Rights Committee has noted that criminal sanctions constitute severe interference with the right to freedom of expression and are disproportionate responses in all but the most egregious cases. These severe penalties are likely to exert a chilling effect on everyone, and particularly on journalists, political commentators, civil society members, academics and community researchers, who often publish information and opinions online.

Lack of independent judicial oversight 

FICA does not provide for any independent oversight or remedial mechanism to address potential human rights violations. Appeals against Part 3 directions and Part 4 designations are provided for under the law – however, they are to first be made to the Minister in charge of issuing the order in the first place (ss 92, 93) and/or to a “Reviewing Tribunal” chaired by a Supreme Court Judge but consisting of three individuals closely linked to the government, “each of whom is appointed by the President on the advice of the Cabinet”. (s 94) The rules for such Tribunal’s proceedings are to, in turn, be determined by the Minister for Home Affairs. (s 99) 

Independent judicial review is severely limited as any appeal decision made by the Reviewing Tribunal, Minister or other authorities is “final” and “not to be challenged, appealed against, reviewed, quashed or called in question in any court” – except where the requested review of the Tribunal’s or Minister’s decision refers to procedural requirements, that will not analyze substantive questions relating to executive implementation of the law. (s 104) This limitation on the judiciary’s review powers undermines the rule of law, which requires judicial oversight as a check and balance against the executive’s exercise of discretionary power. Lack of oversight accentuates risks of violations perpetuated by severe penalties and the law’s stipulation that non-compliance with any order is an offence with penalties incurred from the time of alleged offending, regardless of any appeal.

 

Thailand: Immediately repeal emergency regulation that threatens online freedoms

Thailand: Immediately repeal emergency regulation that threatens online freedoms

Click here for a Thai translation of this statement

Seventeen international human rights organizations today denounced the Thai government’s newly announced Regulation No. 29, which empowers the authorities to censor online expression, and investigate and prosecute individuals responsible for communications that may “instigate fear”. The Regulation is the government’s latest attack on the right to freedom of expression and information in Thailand.

The undersigned organizations are concerned that the Regulation seeks to impose unnecessary, disproportionate and arbitrary restrictions in violation of the right to seek, receive and impart information and ideas of all kinds – under the purported guise of combating the COVID-19 pandemic amid a state of emergency.

Regulation No. 29, promulgated on 29 July 2021, repeats language concerning prohibited speech featured in Regulation No. 27 of 10 July 2021, in accordance with section 9(3) of the Emergency Decree on Public Administration in Emergency Situation B.E. 2548 (‘Emergency Decree’). The regulations prohibit the release, distribution or dissemination of texts that may “instigate fear” or are “intended to distort information to mislead understanding of the emergency situation to the extent of affecting the security of state or public order or good morals of the people.” Regulation No. 29 additionally grants government authorities new enforcement powers, enhancing their ability to censor online speech and investigate internet users.

This Regulation is incompatible with Thailand’s Constitution and its obligations under the International Covenant on Civil and Political Rights (ICCPR) to respect and protect the right to freedom of expression and information. It also undermines the right to health, as guaranteed by the International Covenant on Economic, Social and Cultural Rights, which obligates States to ensure access to health-related information, and ensures the right of all people to seek, receive and share information and ideas concerning health issues – particularly in the midst of a pandemic.

The terms “fear”, “security”, “public order” and “good morals” used in the Regulation are vague and overbroad. They are featured without a clear delineation of their scope, limit or definition, in contravention of the principle of legality, as required by the ICCPR.

Moreover, these provisions are inconsistent with the principles of proportionality and necessity. Individuals found to have violated the Regulation by spreading such information may incur imprisonment for a term not exceeding two years or a fine of up to 40,000 baht (approx. US$1,283), or both.

If communications targeted by the Regulation are made available online, the National Broadcasting and Telecommunication Commission (NBTC) is required to inform internet service providers (ISPs) to identify the IP addresses associated with the communications and immediately suspend services to those addresses. The ISPs are then required to report the details of their findings to the NBTC, which must promptly submit evidence concerning the communication to the police for legal action.

The Regulation requires that the NBTC take action against ISPs who fail to comply with relevant orders, which will be deemed a violation of their operating licenses. The suspension of IP addresses also appears to be overly intrusive. Further, taking punitive action against ISPs who do not comply with NBTC’s demands also appears to be disproportionate and unnecessary, and will have a significant chilling effect on freedom of expression and information.

The powers conferred on the NBTC – a non-judicial body – to demand ISPs to suspend IP addresses are inconsistent with the requirement under international human rights law that content restrictions must be enforced pursuant to an order by an independent and impartial judicial authority, as well as in accordance with the principles of legality, necessity and proportionality and with due process.

While there is a need to combat the spread of COVID-19-related disinformation to protect public health during a pandemic, this objective should be pursued by adopting proportionate measures with a clearly defined legitimate aim in compliance with national constitutional measures, as well as international human rights law. Arbitrary and intrusive means that rely on criminal sanctions, onerous fines and suspension of IP addresses do not meet this threshold.

Regulation No. 29 is the latest effort by the Thai authorities to unduly muzzle free expression and information online using non-human rights compliant laws and regulations, purportedly to respond to the COVID-19 pandemic. These other regulations and laws include, among others, the Emergency Decree; Regulations No. 1 and 27 pursuant to the Emergency Decree; the Computer-related Crimes Act B.E. 2560 (2017); and lèse-majesté, insult and criminal defamation provisions under the Criminal Code.

The Thai authorities have enforced these laws to impose criminal sanctions against individuals they accused of “spreading fake news” and those they have sought to prosecute solely for expressing views critical of the government.

On 27 July 2021, Prime Minister Prayut Chan-o-cha ordered the responsible State agencies via his Facebook page to take legal action against individuals, celebrities, media outlets or owners of popular social media pages for spreading “fake news” about COVID-19 that may cause public confusion.

On 22 July 2021, Danupa “Milli” Kanaterrakul, a rapper, was ordered to pay a 2,000 baht (approx. US$60) fine after confessing to a charge of “insulting” the Prime Minister online. On 14 July 2021, the Government Pharmaceutical Organization (GPO) submitted complaints of “criminal defamation by means of publication” against Dr. Boon Vanasin, chairperson of Thonburi Healthcare Group, and Loy Chunpongthong, a mathematician, over their separate comments about the procurement of Moderna COVID-19 vaccine.

The Thai authorities should immediately repeal or substantially amend Regulation No. 29 and the aforementioned laws and regulations that do not comply with international human rights standards, and bring these laws and regulations in line with its international legal obligations under the ICCPR.

The Thai authorities should also cease their harassment and persecution of all individuals solely for exercising their rights to free expression and information, and drop existing charges against individuals facing prosecution for alleged violations of these laws.

Background

Regulation No. 29 has been passed pursuant to section 9(3) of the Emergency Decree on Public Administration B.E. 2548. On 25 March 2020, using powers under the Emergency Decree, the Thai government declared an “emergency situation” in all areas of Thailand, purportedly to combat the COVID-19 outbreak. Since then, the Thai authorities have enacted new regulations under the Emergency Decree, some of which are not compliant with Thailand’s international human rights law obligations to respect and ensure the rights to freedom of expression and information.

Section 9 of the Emergency Decree does not explicitly grant the Prime Minister the pow-er to suspend internet services. In April 2021, the Emergency Decree and a related announcement approved a sweeping transfer of some powers under 31 laws from ministers to the Prime Minister, however, these did not include powers or authority associated with the NBTC.

Article 19 of the ICCPR obliges Thailand to respect and ensure to all individuals under its jurisdiction the right to freedom of expression and information. The UN Human Rights Committee has clarified in General Comment No. 34 that protections for freedom of expression and opinion should extend to “political discourse, commentary… on public affairs, discussion of human rights, journalism…”, including through non-verbal means and “electronic and internet-based modes of expression.”

The UN Human Rights Committee also recognized that “a free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression …. [and] …constitutes one of the cornerstones of a democratic society”, and this implies “a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion”.

While in certain circumstances, a State may restrict freedom of expression, any such restriction must be strictly limited in accordance with the ICCPR. They must meet the requirements of legality, legitimate purpose, necessity, proportionality and non-discrimination.

The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has made clear that States should only seek to restrict content pursuant to an order by an independent and impartial judicial authority, and in accordance with due process and standards of legality, necessity and legitimacy. States should also not impose disproportionate sanctions, whether heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression.

Section 32 of the Constitution of Thailand protects the right to privacy and forbids the “exploitation” of personal data except when explicitly provided by law and necessary for the public interest. Section 34 of the Constitution provides that a person shall enjoy the liberty to express opinions, make speeches, write, print, publicize and express by other means. Section 35 provides that a media professional shall have liberty in presenting news or expressing opinions in accordance with professional ethics.

Signed:

Access Now

Amnesty International Thailand

ARTICLE 19

Asian Forum for Human Rights and Development (FORUM-ASIA)

Asian Network for Free Elections (ANFREL)

ASEAN Parliamentarians for Human Rights

Centre for Civil and Political Rights

Civil Rights Defenders

CIVICUS: World Alliance for Citizen Participation

Committee to Protect Journalists

FIDH – International Federation for Human Rights

Human Rights Watch

International Commission of Jurists

Lawyers’ Rights Watch Canada

Manushya Foundation

Open Net Association

People’s Empowerment Foundation