Asian Human Rights Commission

Burma Penal Code, Section 505

As Burma’s military regime sets about concocting court cases against those whom it has labelled as the ringleaders of protests around the country in August and September, it is increasingly falling back upon a tried and tested provision of its antiquated Penal Code, section 505, according to which, "Whoever makes, publishes or circulates any statement, rumour or report... (b) with 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."

It has been a characteristic of the criminal injustice system in Burma under the current administration that virtually anything can be found to fall within the parameters of section 505(b), from the making of complaints about forced labour to the watching of a wedding video of a general's daughter. But in the aftermath of the recent uprising this section is being overused to the point of absurdity
 
Here are a few among the many new 505(b) cases that have come to the notice of the AHRC in recent weeks.

On October 19, the township court in Katha, Sagaing Division, sentenced National League for Democracy (NLD) members U Myint Kyi and U Zaw Lin to two years hard labour for their alleged part in the protests. According to Police Superintendent Myint Zaw, the two men held a meeting with others at Myint Kyi's house on September 25 to plan for a protest in the town the next day. The court heard that the march lasted for a half an hour and involved around 50 monks and 400 residents who apparently went not in order to press for changes in their society but rather in order "to cause alarm to the public". The accused maintained that they were not organisers of the protest and that Zaw Lin did not even attend it, but Judge Ne Aung does not appear to have considered their testimony.
 
In a related case, on October 18, the court in nearby Indaw sentenced Shwe Pein and Chan Aung also to two years with hard labour for allegedly having had contact with the defendants in Katha and having communicated to short wave radio stations abroad about goings on there. Interestingly, Deputy Police Chief Kyaw Htay used telephone records and called an official from the government communications department to testify against the two--who are members of the Human Rights Defenders and Promoters (HRDP) group. Others in that group have been targeted in similar legal actions throughout the year.

Judge Daw Khin Myat Tar concluded that the defendants had "sent news to foreign broadcasters with intent to injure State tranquility and the rule of law by causing alarm to the public" and passed her sentence accordingly.

U Min Aung, a father of three small children, was brought into the district court of Thandwe (upon the western seaboard) facing the same charge on October 17.  Min Aung—who was apparently targeted for having worked on a number of forced labour cases in Arakan State and having had contact with the International Labour Organisation's office in Rangoon—was sentenced for his alleged involvement in protests in his hometown of Taunggut on September 26 and 27. This was despite his defence of him being away from the area until October 12, the day before he was arrested.

When Min Aung complained that he had been denied a lawyer, in violation of his human rights, Judge Daw Hsaung Tin added another two years to his sentence for contempt of court, making it nine-and-a-half years in total. Later, it seems that a lawyer was able to get the case reviewed and the sentence brought back down to two-and-a-half years, despite having been refused permission to get copies of the court's judgment. 

Reports of identikit charges, investigations and convictions are coming from all over the country. For instance, the Yoma 3 news service (Thailand) says that on November 7 Judge Maung Maung at a court in Pyi, lower Burma, sentenced two other HRDP members—Ko Zaw Htun and Ko Thet Oo—to two years each under 505(b), along with a disrobed monk, U Pandita.

Similarly, according to the Burmese service of Radio Free Asia, courts in Kachin State, on the border with China, sentenced NLD members U Ba Myint of Banmaw and U Ne Win of Myitkyina (the state deputy chairman) to—yet again—two years apiece on November 9. Ba Myint was reportedly tried in a closed court, without the knowledge of his family, while Ne Win's wife only learnt of the charge against him when she went to the court on the afternoon of November 8. The next morning he was given 15 minutes to hire a lawyer (without success), after which the judge tried the case and passed the judgment that evening.

Meanwhile, analogous cases were proceeding against two more party members in Monyin, U Kyaw Maung and U Hpe Sein, who are aged 60 and 74 respectively. And according to a human rights lawyer, others facing or having been sentenced in 505(b) cases include U Myint Oo, the NLD secretary in Magwe; U Thar Cho in Yenanchaung, Htun Htun Nyein in Chauk, and schoolteacher U Htay Win in Natmauk, all also in Magwe; and Ko Saw Win, an NLD organiser in Hinthada (Irrawaddy delta) and Maung Khaing Win, who offered water to protestors in the same township. The lawyer only came to learn of the last two by accident, when he was there following up on the case of the Hinthada Six, on whose case the AHRC has conducted an special campaign since April.

Clearly, it is not the persons who have been forced to defend themselves in these shabby show trials who have "intent to cause fear or alarm to the public" but rather, the persons behind the policy of 505(b) convictions and two-year sentences for anyone who might have been getting up the authorities' collective nose, without regard to the legality of how they came to be in custody, how they came to be in the courts or how they came to be convicted. It is Burma's authorities, not its citizens, who are responsible for the fear and alarm that persists in their country.

The fantastic irony of all these cases is that while the military regime rails against neocolonialists and the supposed interference of others in its internal affairs, it is using a colonial-era law in its desperate attempts to crush opponents to its unsavoury rule in exactly the same manner as did the British officials who devised and implemented the law over a century ago. The provision is the same one that exists until today in the Indian Penal Code (1860), which can be found in one form or another throughout the Commonwealth. However, despite its persistence on the statute books, nowhere is the section so shamelessly and blatantly manipulated for purposes entirely contrary to notions of justice than in Burma today.

The use of section 505(b), police and conventional courts in handling virtually all of the cases arising out of the recent protests reinforces a point that AHRC has been making as a result of its close study of the situation in Burma over the last few years: It is in the case based study of ordinary institutions, laws and procedures, not in the privileging of special security regulations and secret tribunals, that understanding about the management of Burma's authoritarian state and mismanagement of its society is to be obtained.

At this time that the UN Special Rapporteur on human rights in Myanmar, Professor Paulo Sergio Pinheiro, has again at last been able to visit the country, the AHRC calls for him and all other persons examining the situation of human rights there to pay special attention to this aspect of ongoing systemic violations in Burma.

The role of human rights organisations and defenders at this critical time in the country's history must consist not only of documenting and describing events but understanding and interpreting them for the benefit of both ourselves and others. In the case of Burma especially we may not always be able to say why something happened, but we should at least be able to say how, and not just what.