February 6, 2022, Comment off
The Repressive laws and Human Rights Violations during 2021 Military Coup
By Khin Mon Lin (Freelance Researcher)
“To sustain the power, the military is using inhuman and violent treatment towards the civilians and have committed serious human rights violations against the civilians. On the other hand, this has brought to light the past criminal actions committed by the junta upon the ethnic minority people for several decades.“
On 1st February 2021, Vice President U Myint Swe declared the country to be under a nationwide state of emergency for one year under Section 417 of the 2008 Constitution and the country’s legislative, administrative, and judicial powers had been transferred to the military’s commander-in-chief, per Section 418 of the Constitution. The Military seized power of the country using the “2020 general election fraud” allegation. The State Counselor Daw Aung San Suu Kyi, President U Win Myint, the NLD’s Chief Ministers and Ministers of the states and regions, and some of the NLD’s Central Executive Committee (CEC) members were detained. The junta has claimed their coup is consistent with the 2008 constitution although legal experts and Politicians have pointed out the illegitimate process of the coup. The military is still holding onto its 2008 Constitution, but simultaneously, has arbitrarily removed the basic rights of the citizens guaranteed by the 2008 Constitution through new legal commitments.
New Legal Regulations under 2021 Coup
Since the military announced a state of emergency, the State Administration Council (SAC) prioritized changing and amending the legal mechanisms with the intent to suspend the rights and freedom of the citizens guaranteed by the 2008 Constitution. The junta had made effort to intentionally remove the basic rights of the citizens both directly and indirectly by providing new legislations, amending, and ignoring some existing legal provisions. Most of the legal amendments were completed to protect and sustain the power of the junta rule, which jeopardizes the lives of the people. Most of the provisions created are inconsistent with the international human rights law and democracy norms. It can be seen that the situation is drawing back in the last decades of the junta regime. Since the junta coup, the following laws have been broadly used as a weapon to oppress civilians.
On February 14, the SAC amended the Penal Code by inserting Section-505 A which could criminalize any expression that “cause fear,” spread “false news, [or] agitates directly or indirectly a criminal offense against a government servant. It expends the scope of previous offense that any “statement, rumor or report” “with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman, in the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty.” According to the new provision, it extends the sentence up to three-year imprisonment and changes into non-bailable offense under the revised Criminal Procedure Code. Besides, the scope of Section 124 is expanded to criminalize any hate speech to the defense services and defense services personnel in the term of the government. It mainly focused on those who intend to “sabotage or hinder the performance of the Defense Services and other government servants from serving their duties”, while dissuading them to be involved in any movements against the coup.
Additionally, some provisions of the Ward and Tract Administration Law have been updated and used by the junta during the previous military regime. According to Section 17, the residents are required to report all overnight guests from other wards or villages to the ward or village tract administrator whom the function and power are fully conferred according to Section13. The SAC is likely to intend to build the ground level concrete by using the ward administrators as its pillars in order to trace and suppress the politicians and the protestors from staying or hiding overnight in discrete locations. Subsequently, the junta warns and threatens homeowners and landlords not to rent out their property to the activist protestors. Otherwise, the junta will confiscate the owners’ property. At the same time, the military troops themselves camp in public areas like schools, university campuses, temples, and even hospitals.
Likewise, the amended Electronics Transactions Law threatens the right to privacy of various online users. Some people maintained that the junta tried to apply a similar model replicating China’s into the domestic law which has serious restrictions on political criticism. It allows government agencies, investigators, or law enforcement to access personal data concerning “cybercrimes,” “cyber misuse,” or any criminal investigation. It raises concern about the security of the internet users and unnecessarily restriction of the right to information and free speech.
In the Law on the Protection of Personal Liberty and Security of Citizens, Sections 5, 7, and 8 were arbitrarily derogated including the right to freedom from arbitrary detention for more than 24 hours without court permission, the right to be free of warrantless surveillance, and search and seizure into a person’s residence or private places, including intercepting telecommunication.
The other legal frameworks often used by the junta are the Anti-Corruption Law, and the Natural Disaster Management Law. Following the coup, a total of 29 Chief Ministers and Ministers from the NLD were charged with Section 55 of that Law. In addition, the Natural Disaster Management Law has been unjustly enforced as a weapon by the junta during the Covid 19 pandemic. With the reason of state emergency, the junta has intentionally ignored some provisions which reflect democratic norms without justification from the principle of legality under international obligations. The revision of legal commitment is leading to serious violations of fundamental human rights guaranteed by the 2008 Constitution. The positive legal reform process has stopped although since the past two terms of civilians’ government, several NGOs and Civil Society Organizations have repeatedly expressed their deep concerns relating to the above provisions.
Section 505 and freedom of expression as the fundamental right
As mentioned above, most new provisions have unnecessarily and disproportionally restricted the exercise of free speech, especially criticism regarding the military personnel and their coup. Since 2010, during the transition period to democracy, the government guaranteed a range of fundamental rights of citizens as a positive effort to some extent. Consequently, several specific laws have been enacted to implement the 2008 Constitution. Among them, regarding the right to freedom of expression, Section 354 of the 2008 Constitution, and Section 4 of the Law relating to the Peaceful Assembly and Peaceful Procession 2011, provides that a citizen can express and publish freely of their conviction and opinion. There is no doubt that the right of freedom of expression (Article 19 of UDHR and Article 19 of the ICCPR) is a fundamental right of any democratic society; it is a powerful tool for the citizen to freely criticize authority and their policies.
However, there may be limitations to the right of free speech, it should be noted that some speeches shall be restricted, specifically those which may lead to discrimination, incitement to violence, and war. In this regard, Article 19 (3) of the ICCPR clearly provides that any restrictions on these rights must be provided by law, in pursuit of a legitimate purpose, and necessary and proportionate to that purpose. On this matter, however, the authority has excessively relied on lawful restrictions to oppress the civilians. Since the previous military rule (1962-2015), there had been a range of repressive laws in place which seek to silence those who wish to scrutinize government decisions along with hate speech, especially against the military. Here, it should be questioned whether the restriction of free speech is to protect the government’s authority and to sustain its power. For example, in the case of the prominent filmmaker, Min Htin Ko Ko Gyi, he was sentenced to one year in prison with hard labor under Section 505 (a), for criticizing the military on Facebook in August 2019. Likewise, five members of the Peacock Generation, a traditional theatre group, were sentenced to one year in prison for a satirical performance deemed critical of the military under Section 505 (a) in October 2019.
Again, in the 2021 military coup, Section 505 has been broadly used to effectively criminalize any comments against the military personnel and coup. Interestingly, on 21st May 2021, the junta announced that the drafting committee of the Anti-Hate Speech Law was established. Although the authority has the obligation to prohibit hateful, incitement speech, they abuse their power and silence peaceful expression by passing laws such as Anti-Hate Speech law and Counter-Terrorism Law., the vast majority of human rights activists accepted that the right to free speech has already come under threat by the junta, as they have arrested journalists, cutting off the press. On the other hand, the junta is intentionally spreading the false information, and supports such kind of media.
The Repression of Human Rights norms in post-coup
Due to the military’ attempt to legalize its human rights violation, since it has seized power from the elected government, the junta has brutally abducted civilians who simply use their right to freedom of expression and peaceful assembly. They have taken legal action against civilians involved in demonstrations in favor of the return to civilian government. With the purpose to crack down the protestors from coming out to the street, the junta issued the curfew order according to Section 144 which prevents the organization of more than five people which violates the right of peaceful assembly. Subsequently, the leaders and members of the associations like the student union, labor union, Saga union have become the main targets of the junta. It indirectly removes the right to association of the citizen and forces them to silence their voice. The civilians are criminalized even though they desire to demonstrate peacefully against the coup.
With reference to Section 505 of the Penal Code, the civil servants who are involved in the Civil disobedience movement have been threatened by the SAC. The reason behind this is that the Civil disobedience movement has been and is a powerful weapon used by the public during the spring revolution. It is a nonviolent movement conducted by the public servants and also private sectors such as the bank services. This non-violent resistance movement was initiated by government healthcare personnel and followed by the servants from various Ministries. It shows the strong resistant spirit of the people against the coup, which was unexpected for the junta. As a result, those participating in the CDM became the target of the SAC. Most of the people, who are doing CDM, are included in the list of criminalization by Section 505. The military-controlled presses such as Myanmar Alinn/The Global New Light of Myanmar issue the repeated warnings to civil servants from different Ministries to return to work, and to protesters not to support the CDMs by any means. Sometimes, they are using the irregular promotion so as to persuade the public servants. The junta notified and threatened the private hospitals not to hire the CDM medical servants. The military-controlled TV channels and the newspapers, and also military-influenced private media pages like Eleven media published the list of people who have been charged with Section 505 (a) of the Penal Code. A chart filling up most of a page lists 20 people, along with photos, addresses, and Facebook account pages of each. The list includes politicians, human rights activists, union members, and several celebrities who support the nationwide protest, etc.: for “spreading news to affect state stability,” the violation of such offense is up to three years’ imprisonment. The warrant list forces civilians to flee from their residences to liberated areas.
In terms of media freedom, the junta has arbitrarily revoked many media outlets, arrested journalists, and forced some media to stop the press. During even the democracy period, the media quite struggled to agree to the censorship of their voice, now after the military coup, the situation of media freedom is getting worse. Human Rights Watch documented that a total of 98 journalists were arrested, among them, 46 remained in custody as of the end of July, 2021. Although the military has enacted the Cybersecurity law to ban the flow of misinformation, they have distributed fake news through military-owned channels like MRTV, MWD. The level of the public’s trust in their broadcasting has diminished greatly.
Regarding the right to access information, the military often cut off the internet in several regions of the country. At that time, it raised fear among the local people as it meant that the military could do more violent operations in that area. Sometimes, the residents experienced internet shutdown and difficult situation to make the phone calls or send messages. During a pandemic crisis, access to sufficient information is vital as it largely affects peoples’ lives.
The young people, or otherwise known as, Generation-Z and members of the People Defense Forces/Local Defense Forces have been brutally abducted and shot to death by the junta. Furthermore, political activists, members of the National League for Democracy, social volunteers, teachers and students, and journalists have become the targeted victims by the military junta. Many of the arrested civilians are subjected to various forms of torture and ill-treatment until death without any medical treatment. Some reported cases of sexual abuse, gender-based violence, sexism, and misogyny experienced by women detainees during interrogation and detention. Some detainees died in custody within 24 hours of their arrest, and their family members were denied access to see the deceased. The Assistance Association for Political Prisoners (AAPP) has recorded at least 24 cases of torture till deaths in custody.
As of September 29, the Assistance Association for Political Prisoners (AAPP) recorded that, 1146 people (including children) have been confirmed to be killed by the military in this junta coup and a total of 6914 people are currently under detention. 307 people have been sentenced in prison; of them, 26 have been sentenced to death (including 2 children). 1989 are evading arrest warrants. 118 people have been sentenced in absentia, of them 39 sentenced to death in absentia. In total 65 were sentenced to death, in person, and absentia.
The junta often issues the irregular and unjust restrictions which straightly drive the people to live in unsafe daily lives, for example the junta issued the motor cycle rule which prohibits not driving two boys. To sustain the power, the military is using inhuman and violent treatment towards the civilians and have committed serious human rights violations against the civilians. On the other hand, this has brought to light the past criminal actions committed by the junta upon the ethnic minority people for several decades.
Although the military repeatedly promised to hold a new general election in order to implement the federal democracy, when in fact they have already destroyed democracy norms. The junta forcibly stops the acceleration of the democratic movement under civilian government and intends to restore the long term of military rule. They are violating their international obligations relating to human rights law and humanitarian law. Since 1st February, the daily lives of the civilians have been disrupted with no way to seek justice regarding the human rights violations committed against them. The people of Myanmar are forced to relive the bitterness and hardship they had experienced under the military regime for several decades yet again. Despite the violent crackdown by the junta, the people from various regions have continued protesting to restore democracy with all possible means of turning Myanmar into a resilient democracy that results in a genuine federal democracy.
- Human Rights Watch, Myanmar: Post-Coup Legal Changes Erode Human Rights, 22nd March 2021
- Human Rights Watch, Submission to the Universal Periodic Review for Myanmar, July 2020
- Myanmar: Release Arbitrarily Detained Student Protesters and Cease Further Prosecutions, 23rd November, 2020
- Guyon Rudy, Violent Repression in Burma: Human Rights and the Global Response, UCLA Pacific Basin Law Journal, 1992
- Khin Mon Lin, Principles on Freedom of Expression and Countering of Hate Speech in Myanmar, 3rd International Conference on Burma/Myanmar Studies, Vol-2
- Article-19. (February 04 (2020). Myanmar Briefing Paper: Countering ‘Hate Speech’. available at: https://www.article19.org/resources/myanmar-briefing-paper-countering-hate-speech/
- Martson, H. (2020). Stirring hatreds ahead Myanmar election. Lowy Institute. Available at: https://www.lowyinstitute.org/the-interpreter/stirring-hatreds-ahead-myanmar-elections