Unlawful Edicts: Rule by Decree under the Myanmar Tatmadaw

Published: March 2021

In the weeks following its February 1, 2021 coup, the Myanmar military (“Tatmadaw”) issued a flurry of edicts aimed at suppressing communication and civil society resistance. Working with local partners, ICNL prepared an analysis of relevant Tatmadaw orders, which includes in-depth explorations of the following:

Declaring a State of Emergency

The Tatmadaw declared a state of emergency on February 1, 2021. Article 417 of the 2008 constitution (which was drafted by the Tatmadaw) allows for a state of emergency in cases where there have been “acts or attempts to take over the sovereignty of the Union by insurgency, violence and wrongful forcible means.” However, none of the Tatmadaw’s claims about voter fraud in the November election have been verified, nor do they meet the requirements of the 2008 Constitution. The state of emergency is likely invalid and does not withstand scrutiny under international law, which strictly defines requirements for a “public emergency” and any subsequent derogation from international legal obligations.

Expanding Power to Police Expression

The Tatmadaw’s draft Cyber Security Law, released around a week after the coup, has been widely criticized for violating international law by criminalizing vaguely defined concepts like “misinformation” or “disinformation” and penalizing those found guilty with jail time or fines. It also criminalizes expression that causes “hate, disrupts unity, stabilization, or peace,” thereby giving the military virtually unlimited power to police any expression it finds distasteful.

Additionally, the Law expands the Tatmadaw’s powers to order internet shutdowns and requires internet service providers to provide personal user data upon request, in violation of international privacy and access to information standards.

Invalidating Municipal Committees

On February 10, 2021, the Tatmadaw redirected control of both Yangon and Mandalay into its hands by removing functions of the cities’ committee members, who will now be appointed by the military rather than elected.

Voiding Privacy Rights and Surveilling Overnight Guests

On February 13, 2021, the military reinstated a requirement for citizens to register any guests with and notify their departure to local authorities. This essentially authorizes security forces to conduct nighttime checks of guests within a household, which has led to additional raids and arrests of members of civil society, in violation of basic privacy rights.

Furthermore, the Tatmadaw suspended three provisions that provide important privacy and due process protections. Suspending such fundamental privacy and procedural guarantees violates international standards.

Broadening the Definition of High Treason

On February 14, 2021, the Tatmadaw amended Myanmar’s Penal Code and broadened the definition of high treason (punishable by death) to include attempts or preparations “to alter [by] unconstitutional means or any other means… the organs of the Union.” This all-encompassing language would allow the state to suppress peaceful protest or advocacy for legal reform and permit the military to prosecute almost any action opposing the state on any level. This change violates principles of predictability and legality under international law.

Instituting New Severe Penalties for Alleged Crimes, Sabotage, or Obstruction against the Tatmadaw

The Tatmadaw also amended Section 124-A of the Penal Code criminalizing attempts to “bring into hatred or contempt, or excite or attempt to excite disaffection towards the Government” by expanding the text to also include any attempts directed towards the military. Previously known as the sedition law and regularly wielded to suppress government critics, Section 124-A will likely be used to arrest and charge those opposing the coup. The amendment also added new sections criminalizing sabotaging, disrupting, or hindering the successful performance of military or security organizations (124 C &D). Under the amendment, any people not actively assisting police or army personnel with clearing a street of peaceful protesters could be seen as “hindering” security activities and arrested.

Criminalizing the Spreading of False News

The Tatmadaw also criminalized those who “cause fear, spread false news, agitate directly or indirectly criminal offence against a Government employee” (new Section 505-A). Any expression that would “affect, hinder, disturb, damage the motivation, discipline, health, [or] conduct upon Government or the Defence Services and the duty of government employees or members of defence services” was also criminalized. These measures broaden an already repressive law, criminalize various protected forms of expression, and subject any who seek to influence army personnel to heavy criminal penalties.

Eliminating Due Process Protections

On February 14, the Tatmadaw amended the Code of Criminal Procedure, laying out arrest warrant provisions for some of the new provisions mentioned above. The crime of sabotage appears to require a warrant, yet the ‘crime’ of “causing fear” or knowingly “spreading false news” does not, with no provisions made for bail. The lack of protections for vague crimes with penalties ranging from three to twenty years in prison is not in line with basic international due process requirements.

Enacting Electronic Transactions Law Amendments

On February 15, 2021, the Tatmadaw passed Electronic Transactions Law (ETL) amendments enacting many of the provisions in the draft Cyber Security Law, including “fake news” and disinformation provisions, ambiguous cyber-attack definitions, expansive data seizure and surveillance powers, and excessive criminal penalties, seemingly as a temporary means to enforce certain Cyber Security Law provisions until the Law’s entry into force. The ETL amendments give the Tatmadaw wide latitude to police the Internet and all electronic communications, and to prosecute anyone for any type of objectionable expression or electronic act, in violation of international free expression standards.

Declaring Martial Law

In mid-March, the Tatmadaw declared martial law in parts of Yangon, Mandalay, and other districts of the country, purportedly to “provide security, the rule of law and community peace.” The decree effectively transfers executive and judicial power to the Yangon regional commander and other military officers, who have been entrusted with administrative, judicial, and military powers in these areas.

Other Threats to Civic Freedoms

Already under significant pressure, associations and civil society organizations are likely to be subjected to additional scrutiny, particularly in relation to funding. Despite voluntary registration and international funding protections in Myanmar’s Association Registration Law (2014), military entities have voiced concern about alleged “illegal organizations” and their funding flows. The Central Bank of Myanmar has purportedly requested that banks report every cross-border transaction of INGOs and NGOs. Civil society organizations are deeply concerned that more restrictive changes to registration and cross-border funding will soon be proposed.

ICNL will continue to monitor legal developments around the coup in Myanmar and stands ready to assist civil society in navigating and responding to these new restrictions. For more information, please contact asia@icnl.org.

Last Updated: March 15, 2021