The struggle against Section 377 Myanmar Penal Code: A viewpoint from India

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Arvind Narrain works on advocacy for LGBTI rights at the international level. As a lawyer he has been involved with litigation and advocacy around the anti sodomy law in India.

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Having been associated both as a lawyer and activist with the seventeen year legal battle to decriminalize LGBT lives in the Indian context, I was recently very privileged to be at the 2019 edition of the Myanmar &PROUD LGBT Film Festival – re-named as Yangon Pride this year – to share my experience of the struggle in India against Section 377 of the Indian Penal Code. It was an opportunity to learn both about the context in Myanmar and get a sense of the similarities and differences with the India struggle.

In Myanmar, the LGBT movement is beginning to take root, after a long history of military rule. The reforms which began in 2010 themselves were the result of sustained protest resulted in the freeing of some controls and the release of political prisoners. This has created some space for civil society, including LGBT groups.

This year’s Yangon Pride showed how far the LGBT movement has come in a relatively short time. The LGBT movement is today a visible part of the social and cultural landscape in big cities like Yangon or Mandalay. However, as far as the movement has come, it has a long way to go. Perhaps the biggest challenge facing the LGBT movement is the unfavourable legal environment of pervasive criminalisation of all aspects of LGBT life.

The recent decision of the Indian Supreme Court in Navtej Singh Johar v Union of India, decriminalizing LGBT lives understood this dimension of the harm of Section 377. As J. Chandrachud observed,

The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the state to the suppression of identities. The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain. (para 149)[1]

Even as the continued existence of Section 377 of the Myanmar Penal Code reinforces bias, prejudice and persecution against the LGBT community, other laws enable active prosecution. In particular one must note Section 30(d) of the 1899 Rangoon Police Act and Section 35 of the Police Act. These provisions are the basis on which LGBT persons and in particular transgender persons are targeted on an everyday basis in Myanmar.

Under Section 30(d) of the Rangoon Police Act, a person who cannot ‘satisfactorily account for his presence’ in the ‘precincts of any dwelling house’ can be taken into custody by the police and can be imprisoned for up to three months. Under Section 35 (c) of the Police Act 1945, ‘any person found between sunset and sunrise hav[ing] his face covered or otherwise disguised, who is unable to give a satisfactory account of himself’ can also be taken into custody by a police officer.

As an important report brought out by Colours Rainbow titled, ‘Facing 377’ made clear, these provisions were the heart of the everyday violations faced by LGBT persons in Myanmar. To just cite one narrative from the Report:

One night, Min Min was waiting for his friend on a Bench near a hospital when ze was arrested by the police. They charged hir with violating 1945 Police Act Section 35.[2]

These provisions negate key aspects of international human rights law including the right to privacy, the right to freedom of movement and the right to expression. When a person is asked to give a ‘satisfactory account of oneself’ to a police officer for either walking in the streets or being inside a friend’s house, the law attacks the very core of the idea of autonomy and dignity of the human being. The law is reminiscent of Orwell’s 1984 as LGBT people have to be prepared to account not only for their actions but their very existence to the state.

A campaign to repeal both Section 377 as well as the Police Act provisions would be essential to combat the criminalisation of LGBT lives. The Police Act provisions affect the rights of all citizens as they give the state too much power to intrude into the lives of all persons. They empower the state at the cost of the citizen. With respect to Section 377, it’s important to note that in the Indian context the campaign aspect of the struggle against criminalisation was significant. This is because it is only when the law is made the target of a campaign that it becomes possible to educate the wider public about LGBT lives. If the process of repealing the law is only focused on behind the scenes lobbying, one may miss out on the significant opportunity the law provides to educate the wider public on LGBT rights. The campaign to decriminalize should be seen as a ‘freedom song sung by those who dream of flight’[3] and this is the message which must be communicated to the wider public.

Both the provisions of the Police Act and Section 377 should have no place in the statute books of a democracy and one of the ways forward would ordinarily been of a judicial challenge to the constitutionality of these provisions. However, this is more difficult in the context of Myanmar as the National Constitution which was drafted under military rule has a less than robust rights framework. Though there is a right to privacy, liberty and equality, there are limitations to these rights. The route of reading down Section 377 or striking down the Police Act provisions is made almost impossible as ordinary citizens/ NGO’s can’t litigate constitutionality questions before the Constitutional Tribunal.

The source of the problem is a Constitution which is a product of military rule. One of the ways forward can be sustained advocacy towards establishing a Constituent Assembly to draft a peoples Constitution. Some steps have been taken in that direction with the successful vote in parliament to constitute a committee to propose constitutional amendments. If this Committee can succeed in pushing through amendments which put in place a robust fundamental rights Chapter, with clear non discrimination provisions on sexual orientation and gender identity that would be a step in the right direction. Further, if the citizen’s right to petition the Court to challenge unconstitutional laws in introduced by way of amendment, that would be another step towards democratization. Of course beyond the question of tinkering with the existing Constitution, is the vision of a new constitution of which can reflect the aspirations of a democratic Myanmar. [4]

As one can see, future advocacy on behalf of the LGBT community is irrevocably tied in with the wider project of democratizing Myanmar. The interests of the LGBT community are the same of those of a range of minority groupings in Myanmar be it the Karen, Kachin and Rohingya. The struggle to limit the powers of the state is a project which involves wider civil society. It is essential that the LGBT movement is integrally involved in processes of Constitutional reform and democratization in the time going forward.

One can envisage the struggle going forward as having two prongs. One prong will involve the work of building a vocal, confident and assertive LGBT community. This is the incredible work being done in Myanmar by a range of groups involving community based work, film festivals, support groups, etc. The other is the prong of building connections with other social movements and advocating for a more democratic Myanmar. For example, colleagues in Myanmar shared recent work in building connections with the Women’s Right Movement to advocate for a more inclusive Prevention of Violence against Women law.

Both strands of work are underway in Myanmar. If there is one thing one learns from the seventeen year old Indian legal battle to decriminalise LGBT lives, it is that that the battle could be long and winding with upturns and downturns. Even a defeat in the Indian context in 2013 was an opportunity to take the campaign to the streets. The ‘No Going Back’ campaign which sought to expose the constitutional hollowness of the 2013 judgement which recriminalized LGBT lives helped build public opinion against Section 377. It was only in 2018, seventeen years after Naz filed a petition challenging Section 377 that the Indian Supreme Court decriminalised LGBT lives by reading down Section 377 of the IPC as violative of the right to equality, dignity and privacy.

Myanmar is at a very challenging phase of the movement. It has a vocal and vibrant civil society which is raising fundamental questions of dignity and justice. The current order sanctified by the current Constitution cannot cope with the democratic aspirations of the diverse social movements. The challenges are massive as the struggle of the LGBT movement in Myanmar is really to democratize both Myanmar society as well as the state. Difficult as the road ahead may seem, our comrades in Myanmar should know that there is a global movement which is in solidarity with their struggle. The recent successful challenges to laws criminalizing LGBT lives in Belize, Trinidad and Tobago, Angola, India, Seychelles and Mozambique indicate that there change is happening in many parts of the Global South. We wish all success to our friends in Myanmar with the conviction that though ‘the arc of the moral universe is long, it bends towards justice’.