Myanmar: Prisoner Amnesty Highlights the Need for Penal Code Reform

This article was originally published at The Diplomat on 5 May 2016. Available here.

A week after having released 199 political prisoners, on April 17 the Government of Myanmar released 83 additional prisoners. Among those released were student activists involved in peaceful protests against the National Education Law and Naw Ohn Hla, a land rights activist involved in demonstrations against the Chinese-backed Letpadaung Mine.

Htin Lin Oo, a writer and former National League for Democracy information officer, was also among those released. In June 2015 he had been sentenced to two years of hard labor for violating section 295(a) of Myanmar’s Penal Code, which prohibits the deliberate and malicious outraging religious feelings. The charge emerged from a speech in which he had accused several prominent Buddhist organizations of extreme nationalism.

He was mostly referencing Myanmar’s notorious monk, U Wirathu, who has been accused of hate speech and incitement of violence against Muslims by international observers numerous times since anti-Rohingya violence erupted in 2012.

Another victim of abusive 295(a) prosecution, New Zealander Philip Blackwood was released in January. Blackwood, along with two colleagues, had been sentenced in March 2015 to two and a half years of hard labor over a psychedelic image of the Buddha wearing headphones they had used as a promotion for their bar. The court appeared to have caved to pressure from Ma Ba Tha, Wirathu’s organization, and their excessive convictions arguably contributed to the ongoing privileging of Buddhism above other religions.

Both cases are emblematic of the susceptibility of the Penal Code to manipulation that furthers discrimination against ethnic and religious minorities.

Speaking on April 19, a spokesperson for the Office of the High Commissioner for Human Rights commended Myanmar’s new President U Htin Kyaw’s commitment to preventing “those who act legally for political causes or for their own conscience from being imprisoned.” Such commitments are positive but they also highlight the need for critical review of laws that do not conform with international standards. Because section 295(a) of the Penal Code has been used to further religious discrimination and to imprison critics of nationalist hate speech, it requires critical examination if Myanmar is to avoid institutionalizing discriminatory practices in this sensitive time of transition.

Historical Irony

There’s an unmistakable irony in that section 295(a) came about in response to the need to prohibit incitement against Muslim minorities by Hindu nationalists, yet it has become instrumentalized in contemporary Myanmar to insulate Buddhist nationalists against prosecution for incitement against Muslim minorities.

Myanmar, like other former British South Asian colonies, bases its criminal law on the Penal Code of 1860. Section 295(a) was added through legislative amendment in 1927.

In 1924, an unattributed satirical pamphlet written in Urdu titled The Promiscuous Prophet had gone on sale in bookstores in Lahore, in present day Pakistan. Responding to a copy he had been sent, Gandhi wrote, “I have asked myself what the motive possibly could be in writing or printing such a book except to inflame passions.” Sure enough, protests within the local Muslim community mounted against the publisher, who was ultimately acquitted; the judge ruled that the Penal Code did not explicitly criminalize this manner of religious hate speech. Around the same time a second case dealing with a publication that ridiculed the Prophet Mohammed was brought before the Lahore High Court amid growing demands for an amendment to the Penal Code that would be more sensitive to protecting religious minorities from hate speech.

In 1927 the Government convened a legislative assembly mandated with this task.

Historian Neeti Nair explains that the legislative assembly was concerned with ensuring maximum personal liberty of expression. The assembly was in agreement that in order for speech to be prohibited, the insult to religion or outrage to religious feelings must have been the sole deliberate and conscious intention. In this the lawmakers were concerned not to punish good-faith social or historical commentary or limit attempts to challenge religious adherents in order to encourage reform. For these reasons the final text aimed to explicitly prohibit only the “deliberate and malicious intention of outraging the religious feelings of any class of persons.”

N.C. Kelkar, one of the commissioners, was less convinced that this language would be sufficient to prevent abuse. He proposed including two explanations that would have explicitly noted what is not to be considered an offense under 295(a). This included stating facts and criticism of individuals, tenets, or observances of any religion with a view to promoting social or religious reform. Kelkar was defeated in this proposal and the amendment entered into force on September 22, 1927 without exception.

Kelkar was surprisingly prescient in insisting on further clarifications. The problem in contemporary Myanmar is that the lack of precise language has allowed for the object and purpose of this section of the Penal Code to be disregarded under pressure from Buddhist nationalist forces at the expense of religious minorities and those who may have spoken in their defense.

How the court has interpreted this section of the Penal Code is inconsistent with both Burmese law and international human rights standards.

Inconsistencies with Burmese Law

The Constitution, in Article 34, recognizes the right of every citizen to the freedom of religion. As such the State should have an obligation to protect this right but the lack of transparency and failure to adhere to the law, and bias in favor of Buddhist plaintiffs, implies the courts are not upholding the equal protection of the freedom of religion.

The Constitution is actually somewhat ambiguous on this. Article 361 sets out that Myanmar recognizes the special position of Buddhism as the faith professed by the majority of the country while merely recognizing in Article 362 that Christianity, Islam, Hinduism and Animism were religions existing in the country at the time the Constitution took effect. From recognizing the special position of one to merely acknowledging the existence of others, it is not difficult to see where courts may be pressured to read bias into the law by politicized Buddhist organizations.

That such groups are as much political as religious should, however, raise a major Constitutional concern. Article 364 forbids the abuse of religion for political purposes. In light of Ma Ba Tha’s role in drafting the recent so-called Protection of Race and Religion laws and issuance of threats preceding the 2015 election it is clearly politicized.

While there are limited similarities with Ma Ba Tha claiming religious offence and threatening disorder with Muslim protests against offensive publications in the 1920s, the 1927 assembly was clear to differentiate between intentional offence and social reform-minded criticism such as in Htin Lin Oo’s case. Ma Ba Tha’s pressure on the court is either a willful misreading of the law or, arguably, part of a program that is more political than religious. In either case, such groups have been allowed to exert undue influence over the court due to a lack of judicial training or independence.

The most important element of 295(a) is that the accused acted with deliberate and malicious intent however courts in Myanmar have not consistently ruled on this requirement. In cases where the court has sentenced someone to prison after disregarding this fundamental requirement it has acted inconsistently and in violation of domestic law. The resulting imprisonment should therefore be considered arbitrary detention, a violation of international law.

Inconsistencies with International Standards

Equality before the law is a core human rights norm. The Universal Declaration of Human Rights (UDHR), Article 8, guarantees that everyone has the right to effective remedy by a competent tribunal. Articles 10 and 11 stipulate that everyone is entitled to full equality before a fair and public trial by an independent and impartial judiciary and that nobody shall be found guilty for anything that doesn’t constitute a penal offense under national or international law. This is reiterated in Article 15 of the International Covenant on Civil and Political Rights (ICCPR).

The biased rulings on certain 295(a) proceedings are a far cry from the standard of equality and fairness before the law and the courts’ failure to adhere to the intent requirement violates the defendant’s right not to be found guilty for acts that do not constitute a penal offense under national law.

Failure to uphold equality before the law in these proceedings is a violation of the fundamental human right of non-discrimination, which is to be upheld at all times, under all circumstances. Although the UDHR and ICCPR don’t explicitly define discrimination, the Human Rights Committee has held that the Convention on the Elimination of Racial Discrimination (CERD) provides definitional clarity and sets forth guidelines and specific State obligations. Although Myanmar is not a party to CERD, the Convention offers guidance on eliminating discrimination that the new Burmese Government should consider embracing.

CERD explicitly deals with racial discrimination but this can arguably be extended to other forms of discrimination pertinent to section 295(a) and broader Penal Code reform. Article 2 holds that States shall take effective measures to review governmental policies and to amend or repeal laws that allow for discrimination.

Article 4 continues that States shall prohibit organizations that promote or incite discrimination and should not permit public officials or institutions to promote or incite discrimination. The State and courts’ tacit acceptance of Ma Ba Tha and other nationalist Buddhist organizations have contributed to an emboldening and permissive atmosphere for discrimination in favor of Buddhism over other religions. Public officials and institutions are ultimately responsible for the selective implementation of section 295(a), and as such their behavior appears to be in violation of obligations outlined by CERD.

The Human Rights Committee has provided commentary on such implementation in noting that “laws to discriminate in favor of or against one or certain religious or belief systems, or their adherents over another” are impermissible as are laws that “prevent or punish criticism of religious leaders or commentary on religious doctrine or tenets of faith” as long as they do not constitute incitement.

It is clear from the commentary of the 1927 assembly that the commissioners hoped to preserve the freedom of opinion and expression, which the Human Rights Committee has called “the foundation stone for every free and democratic society.” It is so fundamental that international human rights law only permits for limited restrictions, laid out  in ICCPR Article 20, namely propaganda for war and advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The object and purpose of section 295(a) appears to conform with international law in this sense, but selective prosecution has amounted to an undue restriction on the freedom of expression.

During the Universal Periodic Review of Myanmar before the Human Rights Council in November 2015, several States including Norway, Turkey, France, and Nigeria made recommendations that Myanmar address the spread of discrimination and incitement against ethnic and religious minorities and enact laws to this effect. Myanmar ultimately rejected most such recommendations claiming they “are contrary to the situation on the ground.” This rejection, however, falls flat in the face of evidence otherwise.

Time for Penal Code Reform

During the follow-up session to the Universal Periodic Review on March 17, 2016, Myanmar’s Representative U Maung Wai remarked that, “as things are changing, and changing in the right direction in the country, a window of opportunity may arise to revisit these recommendations in the future.”

If President U Htin Kyaw is to be taken seriously on his commitment that those who act legally of their own conscience will no longer be imprisoned and if the new Government is sincere in promoting human rights moving forward, it is time for them to see the window of opportunity as wide open. The Office of the High Commissioner for Human Rights, in the same statement mentioned above, has been clear that it is ready to provide expertise to the Burmese Government to reform those laws that do not conform with international standards. Beginning with a review of the Penal Code would be a good start.

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The Buddhist King and Modern Politics

The following is an excerpt from In Quest of Democracy, an essay written by Nobel Peace Prize winner Aung San Suu Kyi. The original essay was written before Aung San Suu Kyi was placed under house arrest in July 1989 and had been planned as part of an anthology of essays on democracy and human rights. Aung San Suu Kyi, after years of tumultuous house arrest and suffering, was released on 13 November 2010. Since her release she has continued to campaign for deeper democratic transitions in Burma as the leader, and founder, of the National League for Democracy. Around the same time as her release, the decades long military dictatorship began to initiate political liberalizations that permitted independent parties an unprecedented degree of freedom. Despite easily agreed upon positive steps toward Democracy Burma faces many obstacles and complex challenges to its ongoing democratization, particularly in terms of reconciling complicated group and individual identity politics. While this essay was originally written over twenty years ago, it presents a vision of a moral leader, a vision inspired by Buddhist legends and parables, with considerable transferability to not only guiding Burma’s democratic transition but in pointing to desirable qualities in all democratically elected figures and offers insight into discussions on resisting authoritarian and totalitarian regimes. It begins…

Opponents of the movement for democracy in Burma have sought to undermine it by on the one hand casting aspersions on the competence of the people to judge what was best for the nation and on the other condemning the basic tenets of democracy as un-Burmese. There is nothing new in Third World governments seeking to justify and perpetuate authoritarian rule by denouncing liberal democratic principles as alien. By implication they claim for themselves the official and sole right to decide what does or does not conform to indigenous cultural norms.

This excerpt was taken from a version of the essay appearing in Freedom From Fear: And Other Writing (2010) p. 170-173.

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“The Buddhist view of world history tells that when society fell from its original state of purity into moral and social chaos a king was elected to restore peace and justice. The ruler was known by three titles: Mahasammata, ‘because he is named ruler by the unanimous consent of the people’; Khattiya; ‘because he has dominion over agricultural land’; and Raja, ‘because he wins the people to affection through observance of the dhamma (virtue, justice, the law)’…

The Buddhist view of kingship does not invest the ruler with the divine right to govern the realm as he pleases. He is expected to observe the Ten Duties of Kings, the Seven Safeguards against Decline, the Four Assistances to the People, and to be guided by numerous other codes of conduct such as the Twelve Practices of Rulers, the Six Attributes of Leaders, the Eight Virtues of Kings and the Four Ways to Overcome Peril. There is logic to a tradition which includes the king among the five enemies or perils and which subscribes to many sets of moral instructions for the edification of those in positions of authority. The people of Burma have had much experience of despotic rule and possess a great awareness of the unhappy gap that can exist between the theory and practice of government.

The Ten Duties of Kings are widely known and generally accepted as a yardstick which could be applied just as well to modern government as to the first monarch of the world. The duties are: liberality, morality, self-sacrifice, integrity, kindness, austerity, non-anger, non-violence, forbearance and non-opposition (to the will of the people).

The first duty of liberality (dana) which demands that a ruler should contribute generously towards the welfare of the people makes the tacit assumption that a government should have the competence to provide adequately for its citizens. In the context of modern politics, one of the prime duties of a responsible administration would be to ensure the economic security of the state.

Morality (sila) in traditional Buddhist terms is based on the observance of the five precepts, which entails refraining from destruction of life, theft, adultery, falsehood and indulgence in intoxicants. The ruler must bear a high moral character to win the respect and trust of the people, to ensure their happiness and prosperity and to provide a proper example. When the king does not observe the dhamma, state functionaries become corrupt, and when state functionaries are corrupt the people are caused much suffering. It is further believed that an unrighteous king brings down calamity on the land. The root of a nation’s misfortunes has to be sought in the moral failings of the government.

The third duty, paricagga, is sometimes translated as generosity  and sometime as self-sacrifice. The former would constitute  a duplication of the first duty, dana, so self-sacrifice as the ultimate generosity which gives up all for the sake of the people would appear the more satisfactory interpretation. The concept of selfless public service is sometimes illustrated by the story of the hermit Sumedha who took the vow of Buddhahood. In so doing he who could have realized the supreme liberation of nirvana in a single lifetime committed himself to countless incarnations that he might help other beings free themselves from suffering. Equally popular is the story of the lord of monkeys who sacrificed his life to save his subjects, including one who had always wished him harm and who was the eventual cause of his death. The good ruler sublimates his needs as an individual to the service of the nation.

Integrity (ajjava) implies incorruptibility in the discharge of public duties as well as honesty and sincerity in personal relations. There is a Burmese saying: ‘With rulers, truth, with (ordinary) men, vows’. While a private individual may be bound only by the formal vows that he makes, those who govern should be wholly bound by the truth in thought, word and deed. Truth is the very essence of the teachings of the Buddha, who referred to himself as the Tathagata or ‘one who has come to the truth’. The Buddhist king must therefore live and rule by truth, which is the perfect uniformity between nomenclature and nature. To deceive or to mislead the people in any way would be an occupational failing as well as a moral offence. ‘As an arrow, intrinsically straight, without warp or distortion, when one word is spoken, it does not err into two.’

Kindness (maddava) in a ruler is in a sense the courage to feel concern for the people. It is undeniably easier to ignore the hardships of those who are too weak to demand their rights than to respond sensitively to their needs. To care is to accept responsibility, to dare to act in accordance with the dictum that the ruler is the strength of the helpless. In Wizaya, a well-known nineteenth-century drama based on the Mahavamsa story of Prince Vijaya, a king sends away into exile his own son, whose wild ways had caused the people much distress: ‘In the matter of love, to make no distinction between citizen and son, to give equally of loving kindness, that is the righteousness of kings.’

The duty of austerity (tapa) enjoins the king to adopt simple habits, to develop self-control and to practise spiritual discipline. The self-indulgent ruler who enjoys an extravagant lifestyle and ignores the spiritual need for austerity was no more acceptable at the time of the Mahasammata than he would be in Burma today.

The seventh, eighth and ninth duties — non-anger (akkodha), non-violence (avihamsa) and forbearance (khanti) — could be said to be related. Because the displeasure of the powerful could have unhappy and far-reaching consequences, kings must not allow personal feelings of enmity and ill will to erupt into destructive  anger and violence. It is incumbent on a ruler to develop the true forbearance which moves him to deal wisely and generously with the shortcomings and provocations of even those whom he could crush with impunity. Violence is totally contrary to the teachings of Buddhism. The good ruler vanquishes ill will with loving kindness, wickedness with virtue, parsimony with liberality, and falsehood with truth. The Emperor Ashoka who ruled his realm in accordance with the principles of non-violence and compassion is always held up as an ideal Buddhist king. A government should not attempt to enjoin submission through harshness and immoral force but should aim at dhamma-vijaya, a conquest by righteousness.

The tenth duty of kings, non-opposition to the will of the people (avirodha), tends to be singled out as a Buddhist endorsement of democracy, supported by well-known stories from the Jakatas. Pawridasa, a monarch who acquired an unfortunate taste for human flesh, was forced to leave his kingdom because he would not heed the people’s demand that he should abandon his cannibalistic habits. A very different kind of ruler was the Buddha’s penultimate incarnation on earth, the pious King Vessantara. But he too was sent into exile when in the course of his strivings for the perfection of liberality he gave away the white elephant of the state without the consent of the people. The royal duty of non-opposition is a reminder that the legitimacy of government is founded on the consent of the people, who may withdraw their mandate at any time if they lose confidence in the ability of the ruler to serve their best interests.

By invoking the Ten Duties of Kings the Burmese are not so much indulging in wishful thinking as drawing on time-honoured values to reinforce the validity of the political reforms they consider necessary. It is a strong argument for democracy that governments regulated by principles of accountability, respect for public opinion and the supremacy of just laws are more likely than an all-powerful ruler or ruling class, uninhibited by the need to honour the will of the people, to observe the traditional duties of Buddhist kingship. Traditional values serve both to justify and to decipher popular expectations of democratic government.”