Legal Climate within Burma
Although AAPP celebrates the release of political prisoners, they are released under conditions regulated by Section 401 of Burma’s Code of Criminal Procedures. This section essentially allows authorities wide and vague powers to re-arrest those released without warrant. While there is still a large range of laws used to indict individuals, at the current time. The legislation and their respective sections most commonly used to stifle political dissent are listed below. Where possible, examples of recent cases are also provided to demonstrate the ways in which these laws continue to be applied under the NLD Government in such a manner. Further details and examples can be found on the AAPP website in our Monthly Chronologies and Prisoner Profiles.
Unlawful Associations Act Sections 17(1) and 17(2)
- “Whoever is a member of an unlawful association, or takes part in meetings of any such association, or contributes, or receives or solicits any contribution for the purpose of any such association, shall be punished with imprisonment of a term [which shall not be less than two years and more than three years and shall also be liable to fine]”
- “Whoever manages or assists in the management of an unlawful association or promotes or assists in promoting a meeting of any such association, or of any members thereof as such members, shall be punished with imprisonment for a term [which shall not be less than three years and more than five years and shall also be liable to fine]”
Sections 17(1) and 17(2) of the Unlawful Associations Act continue to be used under the current government to arrest, detain, and incarcerate people involved in religious organizations, political associations, trade unions, student associations, and a wide array of other activist groups, to stifle public opinion and political dissent. These laws are often also used to prosecute based on associations with ethnic armed groups. This is a concern as oftentimes due to the nature and prevalence of ethnic armed conflict across Burma, many people associate or cooperate with these groups under threat or fear of consequence.
13 youths from Arakan State were sentenced to three years imprisonment with hard labour for alleged associations with the Arakan Army under Section 17(1) of the Unlawful Associations Act. (Refer to June Chronology, 2016)
Peaceful Procession Act Section 19
“If there is evidence that a person violates a rule in Section 8 Sub-section (e) or a rule in Sections 10, 11, and 12, that person must receive a maximum sentence of six months imprisonment or a fine of ten thousand kyat or both.”
8(e) “Local rules”
- “A peaceful assembly is to be made only at the site assigned in the permission”
- “When having a peaceful procession, so as not to disturb the public, people are given permission to gather only at the assigned starting point of the route and to proceed peacefully”
- “Pertains to 12 rules (subsections a-k) relating to the manner and behaviours in which peaceful assemblies are to be conducted”
The large numbers of rules contained within the Peaceful Processions Act and its subsequent sections pertaining to the manner in which peaceful processions may take place are extremely vague and open to interpretation For example, Section 12(f) prohibits “Spreading rumours or incorrect information”. Measures such as these allow this Act to continue to be used widely, and in a variety of cases to suppress political dissent and the right to Peaceful Protest and Assembly. Its various sections are often used to suppress activists and deter others from engaging in similar behaviours.
An activist was charged under section 19 of the Peaceful Procession Act after organizing a protest attended my students, workers and civilians to end civil war in the country and was ordered to pay bail of 500,000 kyat (US$382). His trial is still pending as of November, 2016 (Refer to October Chronology, 2016).
Penal Code Sections 143 and 145
143: “Whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both”
145; “Whoever, joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”
Unlawful assembly, under sections 143 and 145 of the Penal Code (which dates back to, and has remained almost entirely unamended since its publication in the 1800s) continues to be used to arrest and detain people participating in peaceful protests, in a similar manner to that under the Peaceful Procession and Unlawful Associations Acts.
Recent Case: 12 men were each sentenced to two months imprisonment for unlawful assembly under Sections 143 and 145 of the Penal Code after a confrontation with police during a protest march from Sagaing to Naypyidaw demanding government support for improved labor rights, including payment for overtime (see October Chronology, 2016).
Penal Code Section 427
“Whoever commits mischief, and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”
Due to being particularly vague, this offence of “committing mischief” can, and is often applied in many ways to punish dissent that may not specifically fall under other Acts or Sections of law and/or in conjunction with other charges, such as Criminal Trespass under Section 447 of the Penal Code. Ultimately this increases the possibly for harsher sentencing and more significant monetary fines.
105 farmers staging protests, attempting to reclaim their confiscated land, were each fined 3,000 kyat for ‘committing mischief’ under this Section, in conjunction with 500 kyat under Section 145 of the Penal code and an additional 500 kyat under Section 447 of the Penal Code; resulting in a combined monetary fine of 4,000 kyat (refer to July Chronology, 2016).
Penal Code Section 447
“Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both”
Chapter 3 in the Peaceful Processions Act requires all protests be subjected to government approval prior to going ahead. Section 447 is often applied to arrest and prosecute journalists and activists if they proceed with planned protests without prior government approval. Many applications to stage peaceful protests are rejected numerous times and frustrated activists who then assemble regardless, risk prosecution under 447 of the Penal Code.
Several farmers were arrested, charged with criminal trespass, and refused bail under Section 447 for staging ploughing protests to recover their confiscated land (refer to October Chronology, 2016).
Penal Code Sections 505(a) and 505(b)
“Whoever makes, publishes or circulates any statement, rumor or report, –
505(a): With intent to cause, or which is likely to cause, any officer, soldier, sailor, or airman, in the Army, Navy or Airforce to mutiny or otherwise disregard or fail in his duty as such; or
505(b): With the intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility
Shall be punished with imprisonment which may extend to two years, or with fine, or with both.”
Sections (a) and (b) under 505 of the Penal Code are used to stifle political dissent, using vague definitions and wording to imprison people for disseminating information, such as pamphlets, calling for political change, assembling in peaceful protest and publishing media content without prior permission from the government. Disseminating alternative opinions and sources of information, as well as having the right to assemble peacefully are key aspects of a functioning democracy and are fundamental human rights.
12 men involved in a protest March in Sagaing Region demanding better labor rights were sentenced to 3 months imprisonment for Sedition under 505(b), in addition to the sentences under Sections 143 and 145 of the Penal Code detailed above (refer to November Chronology, 2016).
Telecommunications law Section 66(d)
66: “Whoever commits any of the following acts, on conviction be punished with imprisonment for a term extending to a maximum of three years, and shall be liable to fine or both
D: Using a telecommunication network to extort, threaten, obstruct, defame, disturb, inappropriately influence or intimidate.”
At present those who use the telecommunication tools, like emails, messaging services and social media are at risk of being incarcerated for defamation. This Article has quickly and unexpectedly become a tool to stifle those speaking out. Article 66(d) is an unnecessary provision in the Telecommunications Law. Its punishments are severe in relation to the crime, and there are other laws within Burmese domestic legislation that covers the same issue, for example Article 500 of the Penal Code.
Myo Yan Naung Thein was charged under Section 66(d) of the Telecommunications Law, and has been in detention since his arrest on November 3, 2016, having been denied bail four times. He is accused of having defamed Military Commander-in-Chief, Senior General Min Aung Hlaing by criticizing the army’s response to the border-post attacks in Rakhine State in October (refer to February Chronology 2017).