Myanmar: News Media and Printing and Publishing Enterprises Law Reforms other attempts to resolve the issue had not been successful. For content issues, the courts should have the power to affirm or reverse the decisions of the MPC, but not to apply more serious sanctions (unless these are pursuant to other laws). These powers of the MPC should be accompanied by appropriate due process requirements to ensure that both complainants and the media outlets concerned are treated fairly. The decisions of the MPC should, as noted above, be appealable to the courts. However, the law should clarify the standard of review to be conducted by courts. A process of administrative review – whereby courts would only assess whether the MPC acted within the scope of its legal authority and in a way that was not arbitrary, capricious or an abuse of discretion and not whether the court deems the original decision to be ‘correct’ in the sense that it would have come to the same decision – would be preferable, because this would reflect a degree of deference to the Council’s expertise on media matters. The alternative, namely de novo review, whereby courts review the entire case as if it was a new case and substitute their own decision for that of the MPC, would not give sufficient weight to the specialised expertise of the Council. One of the advantages of the current approach is that the penalties for breaches of the content rules are substantially lighter than those contained in other laws, most notably because no prison sentences are provided for. However, if the rules in the media-specific law do not displace laws imposing more severe penalties, this advantage is not achieved and, instead, the system simply creates an additional regulatory requirement for the media. One of the ways to protect the media against the harsh penalties in the criminal and civil law, unless these are genuinely warranted, is to require those with complaints against the media to go first to the MPC for a remedy before they pursue a legal remedy before the courts. The current system does the opposite, prioritising court remedies when these are pursued. The former would provide for a rapid and cheap resolution of the matter while also allowing those who believe that whatever remedy they may have obtained before the MPC is not sufficient to pursue the matter in the courts. This system is in place in Indonesia and has proven to provide a very appropriate balancing of interests. Beyond content rules, it would also make sense to transfer any system for registering the print media that is retained under a new law to the MPC. There is no need for this activity to be overseen by a political body such as the Ministry of Information and the current approach has the unfortunate effect of dividing responsibilities in this area between the Ministry and the MPC, which is inefficient and could lead to mistakes. Recommendations: ➢ The MPC should be given primary responsibility for regulating the print media. This should include: • Developing the Code of Conduct (as recommended above). • Entertaining complaints about breach of the Code with the power to review complaints both through conciliation and through a formally binding The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy - 15 -