Analysis of Counter-Terrorism Law and Its Impact on Press Freedom
It has been twelve years since the Counter-Terrorism Law was passed by the Union Parliament on June 4, 2014, during the government led by U Thein Sein. It has been amended and ratified twice by the military junta on August 1, 2021, and September 26, 2024. The original purpose of this law was to guarantee the authority to target, monitor, and suppress protests against the military’s violent repression after the coup. This latest amendment also includes restrictions on prosecutions aimed at controlling media outlets reporting on violence perpetrated by the military junta. Since the amendment to the rules of this law, the military has targeted and prosecuted a large number of civilians, revolutionaries, activists, opposition political forces, and journalists.
Before the enactment of this Counter-Terrorism Law, the rights of press were already being violated under Section 17(1) of the Unlawful Associations Act even before the coup. It had been widely used to prosecute journalists reporting on ethnic armed groups, especially those in areas where they have not signed a Nationwide Ceasefire Agreement (NCA). This law had been used by the authorities as a weapon to suppress press freedom and freedom of expression, and there had been calls in parliament to amend or repeal it, however, this had not happened.
Instead of using the previously common Section 66(d) of the Telecommunications Law, Sections 124(a), 122, 505A of the Penal Code for defamation, and Section 17(1) of the Unlawful Associations Act, more action is being taken under the sections of the Counter-Terrorism Law according to the observations of Athan Organization. Since the coup, 26 journalists have been prosecuted under this law. If journalists violate media ethics in their work, they can be prosecuted under the Counter Terrorism Law, rather than enforcing the criminal penalties and sanctions under the relevant Media Law, is a blatant violation of media freedom. Despite journalists being arrested and imprisoned, the fact that the Myanmar Press Council (MPC) is being used by the military junta without standing up for the rights and grievances of journalists is also a huge blow to press freedom in Myanmar. The Athan Organization believes there is a need to investigate the nature of this law, which seriously threatens journalists’ right to information and freedom of expression, how this law is being misused and fair trial standards are being violated, and the cases in which journalists have been prosecuted. In this report, the study mainly focuses on the rights of journalists to access information and their legal protections, losses, and subsequent physical and psychological harm caused by the Counter-Terrorism Law.
The difference between the military junta and the international community in defining terrorism and terrorists
There is no universally accepted definition of the term “terrorism,” which is both complex and comprehensive. Numerous definitions have been devised by international organizations and nations worldwide.
The debate regarding the classification of non-state actors as terrorist groups and the inclusion of armed resistance for self-determination in the definition of terrorism presents a global challenge in achieving a shared understanding of terrorism. Despite the fact that self-determination is the most fundamental human right, the struggle for independence and terrorism have not been well-defined globally.
In the interim, the 1994 United Nations Declaration on Measures to Eliminate International Terrorism, which was adopted by General Assembly resolution 49/60, designates crimes committed by an organization or an individual with the intention of causing violence against the public as acts of terrorism without exception, irrespective of political, religious, racial, or ideological differences.
The UN’s unconditional inclusion of armed violence committed for political and religious purposes as terrorism continues to be a source of disagreement. The Palestine Liberation Organizations, which lack international support, are classified as terrorist organizations by the majority of nations worldwide.
This disagreement has prompted international scholars to define terrorism in terms of the actions of an organization, in addition to the intent. Consequently, it has become imperative to differentiate between civilians and military targets when distinguishing between armed insurgents and terrorists. Actions that predominantly target civilians are the sole definition of terrorism by some. Most authoritarian countries, including major powers, have widely proclaimed ethnic minorities and revolutionary armed groups fighting for democracy and self-rule as terrorist groups due to this disagreement and the inability to define it precisely.
The Counter-Terrorism Law of the military junta is comparable. The junta’s Counter-Terrorism law has the potential to arbitrarily detain and punish civilians, political activists, and journalists from independent media organizations who oppose the military rule, given the international disagreement over the norms of terrorism. The military has intentionally capitalized on the absence of a clear legal standard and the disagreement to suppress them.
The penalties for terrorism are severe, as it is classified as an international offense. In order to safeguard against terrorist acts that pose a substantial threat to civilians, it is imperative that effective counter-terrorism legislation be established. Nevertheless, the most fundamental human rights are jeopardized by the prosecution of activists involved in the revolution, ethnic armed groups fighting for autonomy, and independent journalists under the pretext of terrorism.
The nature and characteristics of the Counter-Terrorism Law currently being used by the military junta
The concept of combating terrorism can be understood as the protection of the state and government apparatus from acts that target the lives and property of ordinary civilians. Even in countries that follow the rule of law and have human rights, which follow a democratic system, counter terrorism laws are enacted to prevent and protect the lives and property of civilians, freedom of expression and other rights to freedom of procession and assembly. Therefore, this law can be seen as a necessary law from the perspective of public interest. Regarding the nature of the Counter Terrorism Law, a legal advocate, Mae Aye discussed,
“If there are acts of violence that disturb the public, or when people live peacefully or express their free will, this Counter-Terrorism Law was enacted to prevent it. If you ask whether this Counter-Terrorism Law is necessary in the country, in my opinion, this law is necessary in the country. But the thing is, since this law is a Counter-Terrorism Law, all those who commit acts of terrorism will be prosecuted inclusively under this law. That is the nature of terrorism.
However, the military junta amended the law in Section (3)(b), which provides a general definition of terrorism. [Counter Terrorism Law Section (3)(b), September 26, 2024 Amendment] In addition, Section (3) does not provide a precise definition of a terrorist, but rather broadly includes concepts that can easily be used to classify those who oppose them as terrorists or terrorist groups. It is found that the National Unity Government (NUG), the Committee of Representatives of the Pyidaungsu Hluttaw (CRPH), the People’s Defense Forces (PDFs), the Ethnic Resistance Organizations (EROs), and other political groups are defined as terrorists and terrorist groups, and are interpreted broadly in the law. In addition, the new provision removes the requirement to notify the Ministry of Home Affairs when a complaint is received under the Counter-Terrorism Law, and establishes a committee that grants permission to prosecute up to the regional level, which automatically approves and prosecutes under this Law. Commenting on the formation of such committees, researcher Lily said:
During the reign of military council, the permission of the Ministry of Home Affairs was abolished. After it was abolished, the Prosecution Permission Committee was formed, and committees were formed from Nay Pyi Taw to the regional levels.
However, during the military council, they wanted to prosecute everyone under this law, so they formed a committee using this new provision, and that committee automatically approved it.”[1] Therefore, the ease with which a person suspected of being a terrorist is prosecuted and imprisoned raises questions about the current judicial system.
Section 3(b)(15) of this law states that anyone who commits the offence of “ inciting, instigating or recruiting any person to join a terrorist group or to carry out terrorist activities” shall be punished with imprisonment for a term minimum three years and up to seven years, and may also be fined. This section is intended to threaten the freedom of journalists to obtain and disseminate information and to intentionally restrict the press freedoms. In addition, the Sections of 50 are that can be prosecuted for alleged financial support, and Section 50(j) is the most common type of prosecution and imprisonment. This section provides for a minimum of (10) years in prison and up to life imprisonment. However, the aforementioned sections of the law are being used to sentence journalists to long prison terms, said researcher Ko Htet, “It is not appropriate to use the CT Law, which is not related to their repression, in any way. Even though it is not appropriate, under the military council, they can use it as they wish. We see this as a method they use when they want to impose long prison terms, or even life sentences.”
In short, this law is being misused to forcibly seize public power and to label the actions of the junta leader Min Aung Hlaing and his group as acts of terrorism. However, the Burmese people and the people of the world are well aware that the civil war and armed conflicts throughout Myanmar are a reactionary revolution that emerged from the oppression caused by the brutal war crimes committed by the military. Therefore, using the Counter-Terrorism Law as a lever can be said to be protecting their interests and power.
The use of the Counter-Terrorism Law by the quasi-civilian government before the 2021 coup
This law was also implemented during the National League for Democracy government prior to the military’s assumption of power in 2021. It was primarily employed to apprehend and prosecute individuals who were affiliated with the Arakan Army. The Arakan Army was declared a terrorist organization during that administration. Six individuals, including the leader of the Arakan Association – Singapore charity, Hein Zaw, were charged with providing financial support under Sections 52(a) and 50(j). In theory, this law is well-intentioned; however, the Arakan Army, which fought for freedom in response to oppression during the previous civilian government, was prosecuted and abused by falsely declaring it a terrorist organization.