6.1

PREVIEW

1. Do you know if the Penal Code protects and promotes any minority rights? Do you know if it restricts or violates any minority rights?
2. Which associations do you think are prohibited by the Unlawful Associations Act?

• Associations engaged in criminal activity. 
• Associations producing and promoting tobacco or alcohol. 
• Associations producing and promoting weapons. 
• Associations promoting languages and traditions of ethnic minority groups.

Penal Code, 1861 (Amended 2016 and 2019)

The Penal Code is the main law regulating criminal offences in Myanmar.

Some of the human rights relevant for minority groups in this law include:

• The Penal Code offers some protection against criminal force, assault, insults and defamation, including for women from religious minority groups.
• Article 491 in the Penal Code grants protection for persons with disabilities against negligence and article 361 protects children with disabilities from being removed unlawfully and without consent from their guardians.

There are some restrictions and violations of minority rights in this law:

• Articles 5 and 6 and chapter 4 state that military, police and court officials should not be punished if they are following laws and are, or believe themselves to be, bound by law to do certain acts. This grants immunity to them, even if they might violate minority rights.
• There are broad and vague restrictions on the freedom of speech, including religious debate, and on freedom of peaceful assembly and peaceful procession. These restrictions could make it difficult for minority groups to organise and raise complaints.
• Ethnic and indigenous minority groups could be targeted by accusations of high treason if they organise themselves in armed groups (article 121).
• Ethnic and indigenous minority groups could be targeted by accusations of “disaffection” and “disloyalty” towards the government if they spread negative written or spoken speech about the government, or if they organise or become members of a group that challenges the government (article 124).
• Members of SOGIE minority groups could be targeted by accusations of committing sexual acts “against the order of nature” (article 377).
• Article 375 only protects women against rape. Victims of other genders are not protected against rape.
• Members of SOGIE minority groups could be targeted by accusations of public nuisance if they are perceived to ‘annoy’ other people in public places (articles 268 and 291). Such accusations could be based on intolerant attitudes, such as homo-, bi- and transphobia.
• Members of SOGIE minority groups could be targeted by accusations of obscenity if they are perceived to do something ‘immoral’ or upsetting (articles 292 and 294). These accusations could be based on homo-, bi- and transphobia. These accusations could restrict them from spreading informational, educational and/or artistic materials about minority SOGIE identities, sexual and reproductive health and rights, and LGBT rights.
• Members of SOGIE minority groups could be targeted by accusations of organising marriage or marriage-like ceremonies (article 496). Same-sex marriages are not legal under the Penal Code or in any other Myanmar law.
• Transgender persons could be targeted by accusations of misrepresenting themselves as article 416 prohibits “cheat by personation”.

Unlawful Associations Act, 1908 (Amended 1954)

This law gives power to the President to declare associations “unlawful” if they meet certain criteria and to demand that actions are taken against such associations. Reasons for declaring an association “unlawful” include:

• if it encourages or aids people “to commit acts of violence or intimidation” or if its members “habitually commit such acts” (article 15, article 2(a);
• if the President believes that an association interferes with “the administration of the law” or with “the maintenance of law and order”, or has such objectives (article 16);
• if the President believes that an association “constitutes a danger to the public peace” (article 16).

One human right relevant for minority groups in this law is:

• The law could be used to prohibit organisations that engage in incitement and propaganda against minority groups.

There are some restrictions and violations of minority rights in this law:

• The law gives far-reaching powers to the President. It also includes broad and vague language that could lead to arbitrary restrictions on the freedom of association of minority groups. Ethnic, indigenous and religious minority groups might particularly be targeted by such restrictions, especially if some of their members establish armed organisations.
• Article 17 prohibits many different acts by individuals. For example, it is prohibited to be a member of an “unlawful” association, to participate in or promote its meetings, to manage or assist its operations, and to give, receive or fundraise money for it. Article 17(c) also prohibits trespassing, which can target journalists, researchers and other persons who interview members of “unlawful” associations.
• The law makes it possible for the government to take over the ownership of vehicles and buildings from an “unlawful” association. The government also has the right to take any property found in such places and to sell some of this property. This could allow the government to take over camps from ethnic-based armed groups and places of worship from religious minority groups, for example.
• Money held by an “unlawful” association can be taken by the government. This could allow the government to take donated funds from ethnic-based armed groups or religious minority groups.
• Persons holding funds that are intended for an “unlawful” association may be restricted in different ways. For example, they can be ordered not to make any payments or transfers and their homes can be searched. This could affect funding to different types of organisations for minority groups.

REFLECTION/DISCUSSION

Do you think it is appropriate for Myanmar to have laws, policies and rules still in force that were adopted during the British colonial era? Why or why not?