Legal Reforms Should Meet International Human Rights Standards
(New York) – Burma’s new law on the right to peaceful assembly falls far short of international standards, Human Rights Watch said today. President Thein Sein signed the assembly law, the Law Relating to Peaceful Assembly and Peaceful Procession,on December 2, 2011.
Human Rights Watch urged Burma’s parliament to repeal the law’s provisions that fail to meet international human rights standards, such as imprisonment as a penalty for permit violations. In the meantime, the Home Affairs Ministry should consult with international organizations as it drafts regulations to mitigate some of the law’s harsh effects.
“Burma’s new law on assembly rejects the previous ban on demonstrations, but still allows the government to trump the Burmese people’s basic rights,” said Brad Adams, Asia director at Human Rights Watch. “There is a lot of excitement about changes in Burma these days, but the government shouldn’t be given credit for allowing some freedom just because none existed before. Instead, it should be pressed to make sure its laws meet international standards.”
The Burmese government has long used laws banning marches, demonstrations, and gatherings of more than five people to arrest, prosecute, and imprison peaceful protesters. While ostensibly accepting the right of peaceful assembly, the new law makes the right subject to the overbroad control and the discretion of the authorities, Human Rights Watch said. Under international law, legal restrictions on basic freedoms should be clearly and narrowly identified, strictly necessary, and proportionate.
The new assembly law requires anyone planning a demonstration to seek permission from the township police chief five days in advance. Permission is required for any gathering of “more than one person in a public area … in order to express their opinions.” The authorities are required to respond 48 hours before the planned gathering. If permission is denied, the authorities must offer reasons.
The law states that the police chief may only refuse a permit if the application is “contrary to Union security, prevalence of law and order, community peace and tranquility or public order and morality.” Organizers may appeal the decision to the state or regional level police authorities. The administrative appeals process is final, with no appeal to the courts allowed.
Holding an assembly without permission can result in a one-year prison sentence. Even if permission is granted, theassembly lawprovides criminal penalties of up to six months in prison for various types of conduct, such as giving speeches that contain false information, saying anything that could hurt the state and union, or “doing anything that causes fear, a disturbance or blocks roads, vehicles or the public.” These offenses are articulated in vague and uncertain terms, Human Rights Watch said.
The original bill banned shouting slogans at public assemblies. Parliament amended the final bill to allow slogans, but only if they are pre-approved.
“Requiring approval for the content of slogans shows just how far the government needs to go to understand basic freedoms,” Adams said. “Peaceful protesters shouldn’t go to jail just because a police officer may not like what they said.”
Burma has a long history of repression of peaceful protests. Pro-democracy marches in 1988 were put down by the authorities with lethal force. Security forces killed an estimated 2,000 protesters. Peaceful marches led by the opposition 88 Generation Students group in August 2007 and Buddhist monks in September 2007 were violently broken up. Human Rights Watch’s investigation documented killings by the security forces and hundreds of arbitrary arrests. Some protest leaders were sentenced to over 65 years in prison, and only released in the government’s January 2012 amnesty.
In 2011, the police forcibly dispersed several protests in Rangoon, the former capital. One small protest on October 27 led to the arrest of eight landless farmers and their lawyer, activist Phoe Phyu, for illegal assembly after they protested the forcible acquisition of their land by government-backed companies. Phoe Phyu, now free on bail pending trial, is also defending a group of farmers who led protests in the Irrawaddy Delta region in September. The authorities also arrested and briefly detained a rights activist, Myint Naing, in Bassien in November for filming the farmers’ protest and charged him with distributing unauthorized material under the Electronics Transactions Act.
The assembly law will not go into force until regulations are drafted. Human Rights Watch urged the Home Affairs Ministry to consult with relevant international organizations in drafting the guidelines to mitigate the harsh effects of the law. For instance, the regulations could provide guidance to police chiefs about criteria for granting a permit and the exercise of discretion in the administrative appeals process.
The regulations should state clearly that the assembly law is meant to facilitate gatherings and processions, and the enjoyment of the constitutional right to assembly, Human Rights Watch said. They should make clear that permits should not be refused merely because the gathering might disturb “community peace and tranquility.”
The regulations should clearly define, based on objective criteria terms such as to “frighten” or “disturb” the public, or “hurt the state.” They should clarify that criminal penalties should only be sought for acts of violence or incitement and not for the peaceful exercise of rights to expression, association, and assembly, such as giving false information in a speech or using unapproved slogans.
Since taking office in March 2011, Burma’s new government has introduced many bills into the national bicameral assembly, debating these laws in the three parliamentary sessions to date in a manner not seen in Burma for decades. Nevertheless, the passage of some laws has been shrouded in secrecy. Full drafts of legislation are often not distributed outside the parliament, and there has been little community consultation.
“The real test of new laws will be to see what happens when Burmese attempt to use them,” Adams said. “Burma’s government will deserve kudos for legal reform only when people are allowed to exercise their basic rights.”