On 1 February 2021, the Tatmadaw (the formal name of the armed forces of Myanmar) under the administration of Senior General Min Aung Hlaing staged a takeover, citing the alleged electoral frauds committed by the National League for Democracy ("NLD") in the 2020 November Elections. A year-long state of emergency was called under Article 417 of the 2008 Constitution of Myanmar ("Constitution"), and all legislative, executive, and judicial powers were transferred to Sen. Gen. Min Aung Hlaing under Article 418 of the Constitution. Shortly thereafter, the State Administration Council ("SAC") comprising members of the Tatmadaw led by Sen. Gen. Min Aung Hlaing himself was formed. State Counsellor Daw Aung San Suu Kyi, President U Win Myint, and an array of Members of Parliament, political activists, and NLD party members were straightaway detained.
SAC has restricted the usage of internet since 21 February 2021. A nightly scheduled internet blackout from 1am to 6:30am on weekdays and from 1am to 9am on weekends was imposed without any valid cause. Furthermore, Mobile Data Internet and Publicly Accessible Wi-Fi was suspended indefinitely in March with no indication as to when it will be made available again. The situation in Myanmar continues to develop rapidly.
Pursuant to the State Administration Council ("SAC") Law Number 03/2021, some provisions of the Ward and Village Tract Administration Law were amended. The amended provisions require all residents to inform their township or ward administrators if they have overnight guests from other wards or townships, and if there are people in their residence who are not listed in the household documents. They also need to inform their township or ward administrators when such guests depart from the ward or township. This had long been practiced under the previous military administrations, which was only recently abolished under the NLD-led government.
Furthermore, SAC has enacted Law Number 04/2021, which effectively suspended Sections 5, 7, and 8 of the Law Protecting the Privacy and Security of Citizens ("Privacy Law"). These provisions of the Privacy Law are set out below.
Section 5 – The relevant authorities shall (i) ensure that there is no damage to the privacy and security of citizens except when being done so in accordance with the law, and (ii) only enter a person’s residence or premises, accompanied by a minimum of two witnesses comprising ward or village administrators, for the purposes of search, seizure, or arrest.
Section 7 – No one shall be detained for more than 24 hours without permission from court.
Section 8 – In the absence of an order, permission, or warrant issued in accordance with the existing law, or permission from the Union President or the Union Cabinet, a responsible authority shall not do the following:
- enter a person's residence or premises for the purposes of search, seizure, or arrest;
- surveil, spy upon, or investigate in any way which could disturb their privacy and security or affect their dignity;
- intercept or disturb any citizen's communications;
- demand or obtain telephonic and electronic communication data from telecommunication operators;
- open, search, seize, or destroy another person's correspondence, envelope, package, or parcel;
- unlawfully interfere with a citizen's personal or family matters or act in any way to slander or harm their reputation; and
- unlawfully seize the lawfully owned movable or immovable property of a citizen, or intentionally destroy either by direct or indirect means.
The suspension of the above-mentioned provisions has given the authorities broad powers to act in a way which breaches the privacy and security of citizens. Due to the suspension of Section 5, the presence of two witnesses is no longer required when authorities enter a person's premises. The suspension of Section 7 has given the authorities the right to detain persons indefinitely without cause. Lastly, the suspension of Section 8 allows the authorities to act freely to interfere with the private life of a citizen, such as arresting without warrants, intercepting communications, or seizing and destroying a person’s private property.
On 14 February 2021, the State Administration Council ("SAC") enacted Law Number 05/2021 or the Law Amending the Penal Code ("Amendment Law") pursuant to the powers conferred upon it under Section 419 of the Constitution of Myanmar. The Amendment Law has introduced new provisions and amended existing ones. These provisions are as follows:
Section 121 – Section 121 has inserted an "unconstitutional means" clause, allowing for a broader interpretation of high treason. It is specifically being used against the Committee Representing the Pyidaungsu Hluttaw (the de jure national level bicameral legislature of Myanmar), which, pursuant to this provision, has been declared by SAC as unlawful and unconstitutional. Section 212 imposes a penalty of a death sentence, or imprisonment for a term of up to 20 years.
Section 124-A – The Amendment Law has inserted the terms "Defence Services" and "Defence Services Personnel" into the existing provision, providing for a charge against anyone who brings or attempts to bring hatred or contempt, or excites or attempts to excite disaffection towards the military by words, signs, visible representation, or otherwise. Section 124-A imposes a penalty of imprisonment for a term of up to 20 years, or a fine, or both.
Section 124-C – The new Section 124-C A prohibits the sabotage or hindrance in carrying out the performance of the Defence Services or law enforcement organisations. Section 124-C imposes a penalty of imprisonment for a term of up to 20 years, or a fine, or both.
Section 124-D – The new Section 124-D A prohibits the disruption or hindrance of the Defence Service or Government Employees while carrying out their duties. Section 124-D imposes a penalty of imprisonment for a term of up to seven years, or a fine, or both.
Section 505(a) – The Amendment Law has revised Section 505(a) to include the terms "member of the Defence Services" and "Government Employees" in the previous provision. It prohibits anyone from making, publishing, or circulating any reports, statement, or rumour which would bring about disobedience, hatred, or disloyalty to the authorities.
Section 505-A – Section 505-A is a new provision that prohibits anyone from causing fear, spreading false news, or agitating directly or indirectly criminal offences against Government Employees. Section 505-A imposes a penalty of imprisonment for a term of up to three years, or a fine, or both.
The newly enacted provisions have been frequently used to bring charges against arrested personnel amidst the unrest after the takeover. Many protesters, politically active personnel and other dissidents have been charged with violating Section 505(a) of the Penal Code owing to the fact that it provides for a broad interpretation of what constitutes a breach of the relevant law.
On 15 February 2021, the State Administration Council ("SAC") enacted Law Number 07/2021, which introduced new provisions into the existing Electronic Transactions Law (ETL) ("Amended Law"). Among other things, the Amended Law has introduced the concept of Personal Data and provided protections for it. However, it has also included broad scenarios where the governing authority may breach such protections. The Amended Law also introduced offences relating to cyber-crime and cyber-terrorism. The new provisions are as follows:
Section 27-A – Section 27-A sets out the responsibilities and duties of a Personal Data Management Officer when processing Personal Data.
Section 27-B – Section 27-B stipulates that an Investigative Team, which will be designated as such by a relevant authority, has the responsibility to retain Personal Data and keep them confidential, unless their disclosure is required in accordance with the law.
Section 27-C – Section 27-C sets out scenarios where the protection of Personal Data may not apply, as follows:
- Where a governmental organisation designated by the Central Committee, the Investigative Team, or other Governmental Organisations requires the disclosure of Personal Data for the prevention, investigation, undertaking discovery, or provision of evidence in court in relation to cybersecurity, cyber attacks, cyber terrorism, cyber misuse, and other accidents.
- Where a governmental organisation designated by the Central Committee, the Investigative Team, or other Governmental Organisations requires Personal Data for the prevention, investigation, undertaking discovery, or provision of evidence in court in relation to a criminal matter.
- Where an investigation, undertaking discovery, or gathering or sharing information is undertaken in connection with cybersecurity and cybercrimes which threatens the sovereignty, peace, and stability or national security.
- Any other instances where a matter is undertaken by a department or an organisation authorised by the Central Committee, or the Central Committee in relation to sub-section (c).
Section 38-A – Section 38-A provides for the offence where a Personal Data Management Officer breaches his duties. The penalty imposed under this provision is an imprisonment term between one to three years, or a fine not exceeding 10 million MMK, or both.
Section 38-B – Section 38-B provides for the offence when one breaches the provision prohibiting interference with Personal Data. Interference includes, but is not limited to, obtaining, disclosing, altering, or disseminating Personal Data without the consent of the relevant person. Section 38-B imposes a penalty of an imprisonment term between one to three years, or a fine not exceeding 5 million MMK, or both.
Section 38-C – Section 38-C provides for the offence when one breaches the provision prohibiting the creation of fake or false information on the Cyber Space with the intent to cause fear, lose trust or respect, or disunity among the public. This provision imposes a penalty of an imprisonment term between one to three years, or a fine not exceeding 5 million MMK, or both.
Section 38-D – Section 38-D provides for the offence when one breaches the provision prohibiting unlawful interference with Cyber Resources, and obtaining access to restricted information including installing malware and committing Cyber Attacks. Section 38-D imposes a penalty of an imprisonment term between two to five years, or a fine not exceeding 30 million MMK, or both.
Section 38-E – Section 38-E provides for the offence when one breaches the provision prohibiting the commission of Cyber Attacks to obtain access to confidential Cyber Resources between Myanmar and another country, with the intent to cause disruption in diplomatic relations. Section 38-E imposes a penalty of an imprisonment term between three to seven years, or a fine not exceeding 50 million MMK, or both.
