Myanmar: Analysis of the Second Amendment of the Broadcasting Law • • • (approximately USD 16,500-27,500) to the same fine and/or imprisonment of between three and five years. The section 97 sanction, for breach of section 93, namely continuing to operate a broadcasting service after termination of the licence, has been increased from MMK 5-10,000,000 (approximately USD 2,750-5,500) to the same fine and/or imprisonment of between six months and one year. The section 98 sanction, for breach of section 94, namely operating a broadcasting service in breach of the rules on concentration of ownership or having deliberately provided wrong information on a licence application, has been increased from MMK 10-30,000,000 (approximately USD 5,500-16,500) to the same fine and/or imprisonment of between one and three years. The section 99 sanction, for breach of section 95, namely continuing to operate a broadcasting service after the licence has been suspended or revoked, has been increased from MMK 30 to 50,000,000 (approximately USD 16,500-27,500) to the same fine and/or imprisonment of between three and five years. A new section 99-a is similar in its effect. It provides for fines of between MMK 1050,000,000 (approximately USD 5,500-27,500) and imprisonment of between one and five years for breaching any subordinate rules – specifically “bylaw, rules, discipline, notification, order, directive or any item of procedure” – adopted under section 106 (which provides for the adopting of such subordinate rules). Previously, section 87 allowed for administrative sanctions to be imposed on broadcasters which breached the law or “rules or regulations adopted by the Council”. Section 88 provided that the sanction “shall depend on the gravity and frequency of the offense or violation” and then set out a range of possible sanctions starting with warnings and going up to licence revocation. Under international law, sanctions for breaches of rules which impose restrictions on freedom of expression must themselves be proportionate, even where some sanction is warranted. While it is appropriate to impose sanctions for all of the actions set out in sections 92-95, imprisonment is a wholly excessive sanction for them. These are administrative wrongs for which administrative sanctions, i.e. fines, are appropriate. Looked at from another perspective, breach of all of these rules would normally be motivated by financial considerations, so a financial penalty is an appropriate way to address them. Beyond this, general principles relating to the right to liberty, protection against cruel and unusual punishment and criminal due process rights also mean that any sentence of imprisonment must be strictly proportionate to the gravity of the crime committed. These principles mean that minimum sentences, especially for crimes which “apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people”, are likely to breach human rights standards.6 The offences covered by sections 92-95 of the Broadcasting Law, in particular the ongoing operation of a broadcasting service without a current licence, fit all of these descriptions, whether or not the scope of this obligation is interpreted broadly or narrowly. For example, many different individuals may be considered to play a part in the ongoing operation of radio or television station, all of whom might be caught by these rules. In contrast, the fines that were available previously would presumably be levied on the corporate actor which owned the station. 6 See, for example, R. v. Lloyd, [2016] 1 SCR 130, para. 35 (Supreme Court of Canada), https://scccsc.lexum.com/scc-csc/scc-csc/en/item/15859/index.do. The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 5