Content Regulation / Censorship, Hate Speech, Indecency / Obscenity, Religious Freedom
Jersild v. Denmark
On Appeal Contracts Expression
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Tun Thurein, Htut Ko Ko Lwin, and Philip Blackwood, who are the owner and managers of the Rangoon-based V Gastro Bar, were sentenced to two and half years in prison with hard labor on March 17, 2015. The three individuals were found guilty under Articles 295 (a) and 188 of the Burmese Penal Code after the bar distributed a promotional flyer on social media depicting an image of Buddha wearing headphones. The three individuals had been arrested on December 11, 2014 after a complaint filed by the Buddhist nationalist movement called the Association for the Protection of Race and Religion or Ma Ba Tha (in Burmese) over the disputed flyer which showed a seated Buddha wearing headphones to a colorful, psychedelic backdrop along with advertising for 15,000 kyat ($15) “Bottomless Frozen Mararita” cocktails.
Columbia Global Freedom of Expression could not identify the official legal and government records on the case and that the information contained in this report was derived from secondary sources. It must be noted that media outlets may not provide complete information about this case. Additional information regarding this legal matter will be updated as an official source becomes available.
The three individuals were arrested on December 11, 2014 after a complaint filed by the Buddhist nationalist movement called the Association for the Protection of Race and Religion or Ma Ba Tha (in Burmese) over the disputed flyer which showed a seated Buddha wearing headphones to a colorful, psychedelic backdrop along with advertising for 15,000 kyat ($15) “Bottomless Frozen Mararita” cocktails.
Tun Thurein was the owner of the bar, Philip Blackwood was the general manager, while Htut Ko Ko Lwin was the bar manager. The three individuals had been denied bail following the arrest. They have been held in the notorious Insein Prison since the arrest, and all of them pleaded not guilty to the charges.
The online advertisement drew a lot of criticism after it was posted on social media. It was Blackwood, a New Zealand national, who happened to post the image. Thien Win, the head of Bahan Police Station who led the arrest, said “[d]uring the interrogation session, Mr. Philip, who runs the bar mostly, said he posted the pamphlet online on December 9 to promote the bar. He said he did it because using the Buddha in ads is in fashion internationally and thought it would attract more attention.” It was reported that Blackwood removed the disputed image and posted an apology after realizing that it went viral and had provoked outrage.
The Judge who adjudicated this matter was U Ye Lwin of the Bahan Township Court. On March 17, 2015, the Bahan Township Court sentenced each defendant to two and a half years in prison with hard labor under the Article 295 (a) and 188 of the Penal Code. Even though Blackwood has repeatedly apologized for the matter, the Judge said that “ignorance of the law is not excuse.” He added that Blackwood already knew a lot about Myanmar culture because he has stayed in Myanmar for more than three years. Furthermore, the owner of the bar failed to instruct his foreign staff about the culture and traditions of the country. An official court decision on the matter is not yet available.
The trio were charged under the Articles 295, 295 (a), and 188 of the Burmese Penal Code. Article 295 prescribes that “[w]hoever destroys, damages or defiles any of worship, or any object held sacred by any class or person with the intention of thereby insulting the religion of any of person or with the knowledge that any class of likely to consider such destruction, damage or defilement as insult to their religion, shall be punished with either description for a term which may extend to two years or with fine, or with both.” Article 295 (a) also states that “[w]hoever, with deliberate and malicious intention of outraging the religious feelings of any class of [persons dent in the Union] by words, either spoken or written, or by visible representations, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” Additionally, Article 188 stipulates that “[w]hoever, knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order he is directed to abstain from a certain act, or to take certain order with property in his possession or under his management, disobeys such direction, shall, is such disobedience, causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance, or injury to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both, and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment or either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” The first charge under Article 295 was later dropped.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case has a chilling effect on freedom of expression. Myanmar does not guarantee freedom of expression in their Constitution. The country also does not follow the international human rights standards such as the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICESCR).
While it is evident that that Buddhism in Myanmar is a sensitive issue, the rise of Buddhist extremism has been supported by the authorities as shown in a number of repressive bills that are under government consideration.
In this case, it can be simply interpreted that those Buddhist nationalists had been offended by the flyer and since Buddhist nationalism has government support, the conviction of these individuals was inevitable.
The three individuals should not face charges and imprisonment because of the online advertisement. The action of advertisement is not considered to be a criminal action. However, since Buddhism is a sensitive issue in Burma, their action has been considered by those Buddhists as inappropriate and insulting.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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