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Freedom of Expression in Asia

Asian Legal Resource Centre -- ALRC
Friday, 2nd April 2004

Statement on 'Freedom of ex-pression in Asia' received by Commission on Human Rights

(Geneva, 2 April 2004) -- The written statement of the Asian Legal Resource Centre (ALRC) on 'Freedom of ex-pression in Asia' (E/CN.4/2004/NGO/42) was distributed on the 31 March 2004 at the 60th Session of the United Nations Commission on Human Rights in Geneva.

The full text of the statement follows.

This year, ALRC submitted 30 written statements to the Commission, on topics as diverse as caste discrimination in Nepal, food scarcity in Myanmar, custodial deaths and torture in India, extrajudicial killings in Thailand, policing in Pakistan, the National Human Rights Commission of Sri Lanka, and impunity in Asia.

The complete list of statements, with full texts and links to the original versions, can be viewed on the ALRC website, at http://www.alrc.net/mainfile.php/60written/.

Asian Legal Resource Centre -- ALRC, Hong Kong

Freedom of ex-pression in Asia

1. Throughout Asia, the judiciary is used to curb, rather than protect, freedom of ex-pression. The Asian Legal Resource Centre has regularly reported on limits to freedom of expression in Asia to the Commission, most recently at its fifty-ninth session (E/CN.4/2003/NGO/91). This year, it draws attention to the particular role of the judiciary in curtailing this right, by way of the following examples.

2. CHINA: The Beijing Higher People's Court on 10 November 2003 denied the appeals of four persons serving prison sentences of 8-10 years for subversion, after posting material on the internet calling for political reform, and discussing the country's social problems. Yang Zili, Xu Wei, Jin Haike and Zang Honghai have been imprisoned since March 2001 after forming the New Youth Society. About a week earlier another internet activist, Jiang Lijun, appeared in Beijing No. 2 Intermediate People's Court for inciting subversion. He was detained on 7 November 2002 having sent an open letter to the 16th Communist Party Congress advocating democratic reforms. Another signatory of that letter, He Depu, received an eight-year prison sentence during a five-minute court appearance on 6 November 2003. On October 14 he was found guilty of inciting subversion for putting political essays on the internet and for being a member of the banned China Democracy Party. Among similar cases are those of Ouyang Yi, tried on 16 October 2003 for demanding democratic reform on the internet, and Huang Qi, serving a five-year sentence in Chengdu Public Security Bureau No. 1 Detention Centre after publishing articles about the 4 June 1989 crackdown on his website. The arrest of internet activists in China appears set to continue. On 28 October 2003, Du Daobin, a civil servant from Hubei Province, became another victim. He had posted an online petition urging the release of an internet dissident arrested in November 2002, Liu Di, and had initiated a simulated detention campaign by asking people to shut themselves in a dark room during the day. Reporters sans Frontières reported in November 2003 that 39 people were then in prison in China because of the views they expressed on the internet.

3. MALAYSIA: Tenaganita, an organisation advocating the rights of women and migrant workers, published a memorandum in August 1995 condemning conditions in immigration detention centres for migrant workers and alleging that detainees were being tortured and killed. Although a similar report subsequently published by investigative journalists earned them the Malaysian Press Institute Award, presented by Prime Minister Mahathir Mohamad, it resulted in Irene Fernandez, Tenaganita's director, being charged with "maliciously publishing false news" under section 8A(2) of the Printing Presses and Publications Act 1984. After a trial lasting seven years, the judge scheduled a verdict for 17 March 2004. However, on 9 October 2003, Magistrate Juliana Mohamed suddenly informed the defendant to make her final written submission in two days in order that the verdict be delivered the following week. The defendant's lead lawyer was overseas and could not return to Malaysia until October 20. Consequently, the deadline was not met, and the defendant herself gave the closing argument together with a lawyer from the Bar Council. The magistrate found Fernandez guilty on October 16 and sentenced her to one year in prison the following day.

4. MYANMAR: A special court sentenced the chief editor of sports magazine "First Eleven", Zaw Thet Htwe, and eight associates to death for treason on 28 November 2003. The group were arrested in July and August and later accused of planning a bombing campaign in the capital city. However, no evidence of such a plan exists and the authorities appear to have been angered by a number of articles in the magazine hinting at corruption in the Myanmar sports industry. In November 2003, Reporters sans Frontières ranked Myanmar 164 out of 166 countries in its annual press freedom survey.

5. PAKISTAN: Munawar Mohsin, the former subeditor of the "Frontier Post" in Peshawar, was sentenced to life imprisonment on 8 July 2003 for blasphemy. The sentence, issued by the Northwest Frontier Province High Court together with a fine of 50,000 rupees (about US0), was for violating section 295-C of the Pakistan Penal Code, introduced by the dictator General Zia ul-Haq in 1986. As the editor responsible for letters, his crime was publishing a letter by Ben Dzec considered insulting to the Prophet Muhammad. He has been imprisoned since the letter was published on 29 January 2001.

6. VIETNAM: Dr Pham Hong Son, a physician and marketing director of a pharmaceutical company, was on 18 June 2003 sentenced for spying, after posting on the internet an article about democracy that he had translated from the United States Embassy website. The Hanoi Supreme People's Court reduced his initial sentence of 13 years in prison and three years' house arrest to five years in prison on August 26. The indictment of 10 April 2003 stated that Dr Pham had contacted dissidents in Vietnam and overseas and had endorsed their views, "Becoming a supporter of the action plan to use press freedom and democracy to defend pluralism and the multiparty system." Dr Pham has been imprisoned since his arrest on 27 March 2002. In November 2003, Reporters sans Frontières noted that five internet activists were at the time being detained in Vietnam.

7. These cases demonstrate how judicial systems in Asia are being used to restrict freedom of ex-pression. Their lack of independence from the executive makes these judicial systems particularly vulnerable to abuse by the state. Under such circumstances, legislatures readily enact laws to strip people of their rights with which the courts readily comply. Until these institutional defects can be corrected, freedom of expression in Asia will remain tenuous.

8. To render the judiciary a bulwark against attacks on freedom of ex-pression, rather than a tool to emasculate this right, the Asian Legal Resource Centre recommends that the Commission take material steps to see that prisoners detained for exercising their right to freedom of expression be released. The Commission should also become actively involved in the drafting of new constitutional provisions to guarantee freedom of expression, where there are no existing provisions, and in the strengthening and building of institutions to protect this right where it is already written into law. Likewise, the Commission should examine existing laws, indicate which of them in word or effect violate this right, and propose steps to see them amended or rescinded. In this respect, the Commission should pay particular regard to those laws contrived to deal with national security. Lastly, the Commission should request the Special Rapporteurs on freedom of expression and on the independence of judges and lawyers to work jointly with governments in Asia with a view to undertaking the necessary judicial reforms so as to guarantee freedom of ex-pression there. In particular, these must include measures to secure the independence of the judiciary from other branches of government. The Special Rapporteurs may consider providing regular and ongoing human rights training for judges at all levels as a step in the right direction.