The British Empire started to fall apart after the Second World War. Over the new few years, at the culmination of long, hard-fought independence struggles, countries all over the world gained independence and were free, more or less, to pursue their own goals and self-rule. However, an unhelpful inheritance of colonial legislation designed to repress, control, and curtail freedom of expression was bestowed upon these nations. This inheritance continues to contribute to the repression of democratic norms, and the curtailment of human rights, just as it did during the British Empire.
On September 3rd, Reuters journalists Wa Lone and Kyaw Soe Oo were sentenced to seven years in prison under the 1908 Official Secrets Act. The sentencing was condemned worldwide, including by the British Foreign Office. However, what is often overlooked is that the repressive legislation used, became part of Burma’s legislation back in 1908, when it was part of the British Raj. During Britain’s departure from Burma in 1948, it did not remove or adapt the legal code to one befitting a democratic nation, leaving its colonial legislation behind long after independence. This archaic legislation continues to be used in the country, from the Penal Code of 1860, to the Unlawful Association Act of 1908, to detain activists, civilians across the country.
This problem is by no means limited to Myanmar. There were jubilant scenes in India in September when the Indian high court repealed Section 377a of the Indian Penal. Yet while in India criminalisation of homosexuality may have been overturned, sedition, blasphemy, unlawful assembly and adultery remain outlawed, again under the law left behind by the British Raj. Even worse, the archaic Section 377a remains used to criminalise homosexuality in over 40 other nations, from Pakistan to Papua New Guinea and from Sierra Leone to Sudan.
These are just two examples, there are unfortunately many many more. In Kenya, repressive elements of colonial legislation have remained as part of their Penal Code and are routinely used to curtail democratic rights. In Hong Kong the colonial-era Public Order Ordinance continues to be used to deny freedom of expression and “illegal assembly”. In Singapore the 1948 Sedition act and 1955 Criminal Law Act restriction freedom of speech. In fact in almost every former colonial state have repressive laws and acts, that stem in some way from British colonial rule.
While many may like to cast a rose tinted glance back to the British Empire, let us not forget that arbitrary detention, torture and state execution were a major part of British rule. This happened in part due to the creation of a legal system that allowed for such activities to take place. These legal systems did not just restrict freedom of expression, but were implemented to control the local population whilst making it as easy as possible to extract wealth and resources from the country. So, when such a legal system was adopted and continued, albeit with piecemeal changes, it should not be that surprising that such abuses continue by post-colonial nations.
This is not to say lawmakers in such countries have done nothing, nor that they could not repeal them without the help of a ‘benevolent’ western power. Indeed today Malaysia is making moves to remove the punishment of sedition, and the death penalty from its legal code. However such huge legal reform is difficult, time consuming and expensive. These legal systems created were expansive, large and incredibly detailed and would require significant political will to change. This is why, over 70 years on, the anti-democratic, archaic and in some cases almost tyrannical sentiment of colonial legislation lives on today.
There is an argument that it is no longer Britain’s responsibility, after all, these sovereign governments can make these decisions themselves. They can repeal such laws themselves. That is true, but Britain should be at the forefront of this change. This would stop the from UK failing to live up to its responsibility to citizens of former colonial states and take concrete efforts to clean up the mess it left behind. What comparative advantage that the UK can uniquely offer, is not platitudes condemning the application of such laws, these after all are never in short supply, but rather it is the legal knowledge and lessons learned from having repealed these laws at home. Legal experts should be offered in order to assist lawmakers on the best avenues for legislative reform.
Colonial lawmakers did not pull the trigger on democratic norms in post-colonial societies, but they did give them the gun, it is up to modern day lawmakers to be at the forefront of the fight to dismantle that gun.