Penal Code — ရာဇသတ်ကြီး

The Penal Code (aka Criminal Code) includes many articles on defamation, sedition, offense, religion and incitement that were created under a colonial government and are not suitable for a democracy. The articles are so vague and broad that they are easily used to suppress debate and punish those who criticise the government.

Summary of recommendations

The whole Penal Code needs urgent amendment to make it compatible with Myanmar’s new democracy. Many articles need complete repeal as they violate international law. Other articles need changing to bring them into line with international standards.

Detailed issues

Click each section to read more:

Articles 499-502 criminalise defamation with a two-year prison sentence. Defamation is defined as printing or selling content about a person, company, group or association, and intending or knowing that it will harm their reputation. There are 10 defences which include truth in the public good, good faith regarding the conduct of a public servant in the exercise of their duties, or is a good faith accusation against a person to protect one’s own interests or the public interests.

International standards

Defamation should not be criminal. International standards say that criminal punishment is too severe to protect someone’s reputation and should be replaced with civil laws (like the Maldives and Sri Lanka). Criminal defamation laws are usually used by powerful people to exploit the power of the state to silence legitimate criticism.

Recommendation

Adopt a new civil defamation law, decriminalising all forms of defamation.

Article 124a criminalises sedition with a three-year prison sentence. Sedition is defined as any communication that attempts to bring the government into hatred or contempt, or excites or attempts to excite disaffection towards the government. “Disaffection” is explained as disloyalty or all feelings of enmity. Sedition is mainly about exciting people to hold the government in contempt.

International standards

Sedition should not be a criminal offence in a democracy. Sedition has been arbitrarily interpreted by authoritarian governments worldwide to mean any criticism or complaint which a government does not like. It is so broad that it undermines the fundamental democratic principle of people holding governments to account.

Recommendation

Repeal Article 124a.

Article 130b criminalises defamation of foreign powers with a prison term of up to three-years. The article includes some defences of fair comment on a matter of public interest, and truth if the intention is for the public good.

International standards

Defamation should not be criminal. It makes no difference whether the reputation is local, national or foreign. International standards say that criminal punishment is too severe to protect someone’s reputation and should be replaced with civil laws (like the Maldives and Sri Lanka). Criminal defamation laws are usually used by powerful people to exploit the power of the state to silence legitimate criticism.

Recommendation

Repeal Article 130b. All defamation should be covered under a new civil defamation law.

Article 142 criminalises participating in unlawful assemblies with a prison term of up to six-months. Unlawful assemblies are defined as any group over five people that commit undefined mischief. If any member of the group commits any criminal offence, all members will be responsible. The Article is also redundant as there is now a full Peaceful Assembly Law.

International standards

Participating in a peaceful assembly is a fundamental democratic right. International standards do allow some limitations for example in the case of immediate violence, but these are very narrow and must follow the legal principles of “necessary” and “proportionate”. Assemblies are a necessary part of democratic life and people should expect and tolerate some inconvenience and disruption. Collective punishment is also against international standards.

Recommendation

Repeal Article 142.

Article 153a criminalises promoting feelings of enmity or hatred between groups of people with a prison terms of up to two-years. It does not define anything further.

International standards

Article 20 of the ICCPR requires governments to stop incitement. But Article 153a is far too broad and could be arbitrarily interpreted by authoritarian governments to mean any criticism or complaint which a government does not like. International standards require incitement or hate speech laws to be much more detailed about intention to harm, the likelihood of that harm happening, and identify which specific groups are protected.  Incitement laws should also clearly protect freedom of expression, include the legal tests of “necessity” and “proportionality”, and only give punishments for the most serious forms of incitement. The UN has created the Rabat Plan of Action which explains to governments what they can do to stop incitement in a way that protects freedom of expression.

Recommendation

Repeal Article 153a and implement the Rabat Plan of Action.

Articles 292-294 criminalise the making, publication and distribution of obscene materials or acts with a prison term of six-months. Obscene materials include books, leaflets, and art, and obscene acts include signing and speaking in public. Article 293 includes additional prison term if a person under 20-years-old gets the obscene content. There is no definition of what is obscene.

International standards

Prohibiting obscenity is not acceptable under international standards because there is no agreed definition. Different people have different opinions of what is obscene, and so the concept is too subjective to make laws on. For example, young and old people often have different opinions on what is obscene. International standards generally say that only vulnerable groups such as children should be protected from harmful content.

Recommendation

Repeal Articles 292-294 and replace with a law on protecting children’s rights.

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