Table 1. Exceptions with regard to defamation established by the Penal Code Exception 1 Exception 2 Exception 3 Exception 4 Exception 5 Exception 6 Exception 7 Exception 8 Exception 9 Exception 10 It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct and further. [sic] It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct and no further. It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as party witness or agent in any such case, or respecting the character of such person, as far as his character appears in that conduct and no further. It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance and no further. It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-master of accusation. It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. It is not defamation to convey a caution in good faith to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. The constitution consists of 15 chapters, and the fundamental freedoms of the citizen are described under Chapter 8, which is titled, “Citizen, Fundamental Rights and Duties of the Citizens”. In Article 354 under Chapter 8, citizens’ right to freedom of expression is guaranteed as: Every citizen shall be at liberty in the exercise of the following rights, if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality: (a) to express and publish freely their convictions and opinions.4 Although Article 354(a) of the constitution guarantees freedom of expression, justifications and limitations have been laid out. That is, freedom of expression is not absolute, and as the justifications and limitations are vague – “if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality” – they may lead to arbitrary limitations on the right to freedom of speech and expression. 4 English translation sourced from: www.burmalibrary.org/docs5/ Myanmar_Constitution-2008-en.pdf The constitution also guarantees the right to privacy, in Article 357: The Union shall protect the privacy and security of home, property, correspondence and other communications of citizens under the law subject to the provisions of this Constitution. The Penal Code The Penal Code in Myanmar was adopted on 1 May 1861, and drew from the Indian Penal Code, 1860, drafted in the colonial era. Although there have been several amendments made to the Penal Code, Article 500, which criminalises defamatory speech, still exists in the Penal Code. Article 500 of the Penal Code states: “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”5 However, Article 499 of the Penal Code establishes 10 exceptions with regard to defamation which are presented in Table 1. 5 English translation sourced from: www.burmalibrary.org/ docs17/1861-Penal_Code-ocr-en+bu.pdf 96 / Unshackling Expression