Weaponising the law against free expression

Southeast Asia’s repressive regimes have employed ambiguous ‘lawfare’ tactics to undermine dissent and stifle the voices of protesters and journalists

Samantha Holmes
July 13, 2022
Weaponising the law against free expression
Police block NagaWorld casino workers from protesting outside the Cambodian National Assembly building in Phnom Penh on 4 January 2022. Photo: Tang Chhin Sothy/AFP

Repressive governments have long resorted to arbitrary and underhanded tactics to eliminate opposition, silence criticism and retain power, but these acts of oppression have recently become increasingly sophisticated across Southeast Asia.

Some governments are methodically dismantling the rule of law and weaponising legal systems to bolster their regimes and delegitimise dissent. Officials have passed intentionally ambiguous and poorly defined laws and manipulated imprecise legal provisions to attack free expression.

Free speech recession across Southeast Asia is reflected in the 2022 Global Expression Report (GxR) issued by ARTICLE 19, an international freedom of expression organisation. The GxR is an annual, data-informed ranking of freedom of expression in 161 countries. Using 25 indicators, the report uses a scale between one and 100 to place states in categories of In Crisis, Highly Restricted, Restricted, Less Restricted or Open. 

Asia-Pacific scored as the second most In Crisis region, the lowest possible category, surpassed only by the Middle East and North Africa region. Many of the largest declines in expression were localised in Southeast Asia. Myanmar, Cambodia and Vietnam scored the lowest among Southeast Asian countries with meagre scores of 7, 9 and 11, respectively. 

A key indicator recorded by the GxR is the transparency of laws and the predictability of their enforcement. Over the last 10 years, ARTICLE 19 has recorded a decline in four Southeast Asian countries for this indicator: Thailand, Cambodia, Myanmar and the Philippines. Notably, Myanmar ranks in the global bottom five with laws written and enforced in a completely arbitrary fashion.  

Muzzling expression

States across the region are militarising nebulous criminal provisions to prosecute journalists, activists, environmentalists, political opposition, protesters, academics and artists. 

Vietnam continues its repressive campaign against independent voices with prolific prosecution for ‘anti-state propaganda.’ The offence, which carries vastly disproportionate penalties of up to 20 years imprisonment, is Vietnam’s weapon of choice to stifle politically sensitive information and punish government critics.

Some of the most troublesome criminal provisions in Southeast Asia routinely exercised as ‘lawfare,’ the misuse of legal systems to thwart opponents, include the archaic offences of sedition and incitement. Sedition, the crime of provoking rebellion against authority, exists in both Thailand and Malaysia where authorities have aggressively applied it against government critics.

Arrests under the offence of incitement have rocketed in Cambodia and Myanmar in recent years. 

In Cambodia this surge has been targeted towards journalists and protesters. Those charged with incitement in 2022 include three journalists for broadcasts regarding land disputes and nine protesters for organising strikes against Phnom Penh’s biggest casino, NagaWorld. 

Myanmar’s military junta also habitually hands out arbitrary incitement convictions. U.S. journalist Danny Fenster was sentenced to 11 years before being ‘pardoned’ and freed three days later following negotiations with a former U.S. diplomat. Fenster is one of many journalists in Myanmar convicted of alleged crimes against the government since 2021.

U.S. journalist Danny Fenster arrives for a press conference at JFK International Airport in New York on 16 November 2021 after being released from prison in Myanmar. Photo: Timothy A. Clary/AFP

Journalists in Southeast Asia regularly face the brunt of government lawfare. The GxR records that since 2011 the situation has worsened in Cambodia, Indonesia, the Philippines and Myanmar. Two of the top four jailers of journalists globally are in Southeast Asia, with Myanmar detaining 26 and Vietnam jailing 23.

Across the region there is also a growing trend in laws designed to govern the digital space, which is being weaponised to corrode freedom of expression online through legislation such as Malaysia’s Communications and Multimedia Act and Thailand’s Computer Crimes Act. Malaysian artist Fahmi Reza has been the subject of government harassment for his satirical art, including two charges under the Communications and Multimedia Act in 2022. 

Political expression is frequently targeted, censored and punished across Southeast Asia. Governments enforce vague and problematic criminal laws to control the political narrative. 

The GxR records the number of arrests made in each country for political content – often a tactic to discourage citizen engagement. For this indicator, both Cambodia and Myanmar saw a decline in the last year. 

Political expression is frequently targeted, censored and punished across Southeast Asia.

Myanmar ranks in the GxR bottom five for political arrests. Following the February 2021 coup in which the military took control of the government, more than 10,000 people have been arrested, charged or sentenced. 

Cambodia’s recent decline can be attributed to mass trials of former political opposition members and affiliates as the de facto one-party state scatters any illusion of meaningful democracy ahead of next year’s national elections. 

Tactical litigation

Strategic lawsuits against public participation (SLAPPs) are a poisonous type of lawfare whereby individuals are prosecuted by states or litigated against by third parties with the specific intention of discouraging, intimidating, challenging, disrupting or financially draining a defendant and ultimately silencing opposition, criticism or dissent. 

This type of intentional, vexatious litigation is on the rise and has made Southeast Asia, one of the world’s most active regions for legal harassment, according to research by the Business & Human Rights Resource Centre.

The legal provisions commonly forming the basis of SLAPP cases in Southeast Asia include civil or criminal defamation, insult, libel and lèse-majesté, the criminal charge of insulting a country’s monarchy. The GxR recorded an increase in the abuse of defamation and copyright laws over the last 10 years in Cambodia and Myanmar. 

Lèse-majesté provisions are the sharpest weapons of many repressive governments. Thailand, Cambodia, Brunei and Malaysia, via the Sedition Act, punish offenders who have allegedly insulted monarchical rulers, which is incompatible with international law and has no place in a modern democracy. 

Thailand has the strictest lèse-majesté law, which has been used to relentlessly throttle the pro-democracy movement since the moratorium on its use ended in November 2020. Since then, there have been more than 200 individuals charged under lèse-majesté, according to Thai Lawyers for Human Rights. Retired civil servant Anchan Preelert received the longest sentence on record of 87 years, later reduced to 43.5 years, for 29 counts of lèse-majesté.

In the Philippines, the offence of libel is often weaponised in an unyielding battle against the free media. Multiple cyber-libel cases have been brought against online news outlet Rappler and its founder, Nobel Peace Prize laureate Maria Ressa. On 28 June the Duterte regime took its final shot at Rappler as the Securities and Exchange Commission issued an order to shutter the publication, which Ressa said the organisation would appeal.

Nobel Peace Prize laureate Maria Ressa delivers a speech at World Press Freedom Day in Geneva on 3 May 2022. Photo: Fabrice Coffrini/AFP

New legal weapons 

Singapore significantly reinforced its censorship powers with the addition of the overbroad Foreign Interference (Countermeasures) Act (FICA) in October 2021. FICA justifies online content censorship on the easily manipulated grounds of “national security,” adding to an extensive pattern of laws in the region using national security as a pretext for suffocating dissent.

The act also creates a criminal offence for electronic communications on behalf of a ‘foreign principal’ that diminishes public confidence in the government or is ‘directed towards a political end in Singapore.’ The ambiguity of the language in the law risks criminalising expression of human rights defenders, journalists, academics, and socio-political analysts.  

Like FICA, Cambodia’s National Internet Gateway (NIG) shows an intent to increase control over digital expression. Approved in a February 2021 sub-decree but still not implemented due to technical difficulties with its infrastructure, the legal framework underlying the system could bolster existing surveillance capacities and facilitate unprecedented online censorship.

Cambodian authorities are empowered under the sub-decree to censor content deemed to “affect safety, national revenue, social order, dignity, culture, traditions and customs,” which is likely to encapsulate sensitive and critical expression. 

If the primary goal of the NIG is to deter, intimidate and silence government critics, then the aim has already been achieved. The threat of this advanced technology has sent ripples of self-censorship through the online space. 

FICA and the NIG demonstrate efforts by governments to facilitate more state censorship online. Indonesia and Cambodia, alongside Myanmar and Vietnam, also unsurprisingly experienced 10-year declines in the 2022 GxR under the key indicator of “government social media censorship in practice.”

Across Southeast Asia, governments are inequitably employing laws lacking transparency to deflect criticism and evade accountability. The weaponisation of legal systems illustrates the ongoing shift towards an aggressive and invasive authority with little regard for rule of law. Without rule of law, systems of governance become destabilised, triggering a steep descent into autocracy.

Samantha Holmes is the Asia advocacy and communications officer for ARTICLE 19. She previously worked as a legal consultant for a grassroots human rights organisation in Cambodia after obtaining an LLB Law degree at Queen Mary University of London.

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